If a small incorporated town sits inside a larger township, can the county commissioners combine the town and the surrounding township into a single election precinct with one polling place, and does that require a 75% voter petition?
Plain-English summary
A South Dakota county official wrote to the Attorney General on August 29, 1966, with a precinct-consolidation question. The Town of Naples (incorporated, 29 qualified electors) sat inside Foxton Township (84 qualified electors). Each was its own election precinct. The county wanted to merge them into a single precinct with one polling place. The question was whether the Board of County Commissioners had that authority, and if so, whether a 75% voter petition was needed first.
The AG answered yes to authority, no to the petition.
On authority, the AG started with SDC 1960 Supp. 16.0801, which said the Board of County Commissioners "shall, on or before the tenth day of September in each year in which an election is to be held, provide for election precincts throughout its county." A 1957-58 AG opinion had read that "shall" as mandatory: the Board's duty to establish and adjust election precincts was a non-discretionary obligation imposed by statute, except where specific statutes made some aspect of precinct-setting discretionary. With 29 voters in the Town and 84 in the surrounding Township, the AG saw no reason the Board could not combine them as a single precinct, and indeed read the statute as obligating the Board to make precinct decisions of exactly this kind.
On the petition, the AG distinguished the situations governed by SDC 16.0801(5). That subsection said: "Incorporated towns, wholly within one county, together with contiguous territory upon the petition of seventy-five percent of the qualified electors residing in such proposed election precinct may, in the discretion of the board, be set apart as a separate election precinct." Read carefully, that subsection addressed the case where voters wanted to separate an incorporated town (plus contiguous territory) as a standalone precinct. The 75% petition was the trigger that would let voters request that separation, and even then the Board retained discretion to grant it.
The case Naples and Foxton Township presented was the opposite: the county wanted to combine the town's precinct with the surrounding township's precinct. SDC 16.0801(5) did not govern that kind of combination, and no petition was required for it. The general mandatory duty under SDC 16.0801 to establish precincts gave the Board the authority to make the consolidation on its own initiative.
Currency note
This opinion was issued in 1966. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The election precinct statutes have been renumbered (SDC to SDCL Title 12) and substantially restructured since 1966; the modern framework for precinct establishment, consolidation, and polling place selection should be checked against current SDCL Title 12 chapter 14 (precincts and polling places), Secretary of State guidance, and any relevant federal Voting Rights Act considerations.
What the opinion meant at the time
For county commissioners in 1966, the opinion confirmed broad authority to consolidate small precincts for administrative efficiency. A 29-voter Town and an 84-voter Township together made 113 voters, which was a reasonable precinct size and meant only one set of poll workers and one polling place. The Board could make that decision on its own.
For voters in incorporated towns who wanted their own precinct, the opinion confirmed the procedure: gather signatures from 75% of qualified electors in the proposed precinct, file the petition with the Board, and ask for separation. Even then the Board could decline, because SDC 16.0801(5) made the Board's response discretionary.
For township and municipal officials watching a possible consolidation, the opinion confirmed that the legal question was not whether they consented but whether the Board had statutory authority. The mandatory-duty framing meant the county was free to consolidate without seeking the town's or township's approval.
For challengers of a consolidation, the available arguments narrowed. They could argue specific statutory exceptions (perhaps the town had passed a charter-style provision, or there was a Voting Rights Act issue if the consolidation diluted minority votes), but the general "we did not consent" objection was off the table because the statute did not require local consent.
Common questions
Q: What was the timing constraint on precinct decisions?
A: SDC 16.0801 required the Board to provide for election precincts "on or before the tenth day of September" of each year in which an election was held. So precinct consolidations had to be in place by mid-September to govern the November general election.
Q: Could voters in the consolidated precinct petition to split back out?
A: Yes, SDC 16.0801(5) would have allowed Naples's incorporated voters to file a 75% petition to separate the town from the consolidated precinct, but the Board retained discretion to deny the petition. The petition was a request, not a command.
Q: Did the opinion address polling-place location?
A: Only implicitly. A consolidated precinct meant one polling place, but the opinion did not say which physical location, whether in the town or the township. That would have been a Board decision based on convenience.
Q: What if the Town of Naples had been a city (first or second class) rather than an incorporated town?
A: The statute's language ("incorporated towns") was the trigger. Different rules might have applied to first-class cities. The opinion's logic on the difference between separation (petition required) and combination (no petition required) would presumably still control under analogous provisions, though.
Q: Was the Board required to consult the Town or Township before consolidating?
A: The statute did not require it. As a matter of practice and political prudence, consultation would have been customary, but the legal authority did not depend on it.
Q: How small could a precinct go before the Board had to consolidate it?
A: The statute did not set a floor. The Board's mandatory duty to "provide for election precincts" presupposed reasonable precinct sizes, but the choice of how small was too small was within Board discretion under the general duty.
Background and statutory framework
South Dakota in 1966 had a layered local-government structure: counties, organized townships, and incorporated towns (some of which sat physically within townships). Election administration was a county function, run by the County Auditor under the direction of the Board of County Commissioners. The Board's annual precinct-setting was a routine but consequential duty.
SDC 16.0801 was the workhorse precinct statute. Its first sentence imposed the mandatory annual duty. The numbered subsections then set out specific procedures for particular situations. Subsection (5), at issue in this opinion, addressed the case of an incorporated town that wanted to be its own precinct, possibly with contiguous territory included. The 75% petition was the high threshold voters had to meet to request that the Board separate them out. Even meeting the threshold did not guarantee separation, because the statute said "in the discretion of the board."
The 1957-58 AG opinion the 1966 AG relied on had drawn the same mandatory/discretionary line. The Board could not refuse to set precincts at all; that was its duty. But within the precinct-setting work, the Board had discretion to draw the lines, choose polling places, and decide how to handle marginal situations, except where a specific subsection of 16.0801 channeled that discretion.
The opinion's bottom-line move was a careful parse of SDC 16.0801(5). The text was about "separate election precinct" creation, on the petition of voters. Reading it as also requiring a petition for combinations would have stripped the Board of authority that the rest of 16.0801 squarely gave it. The AG read the statute coherently: petitions to separate, Board discretion to combine.
Citations and references
Statutes:
- SDC 1960 Supp. 16.0801 (county commissioners' annual precinct-setting duty)
- SDC 1960 Supp. 16.0801(5) (incorporated town with contiguous territory; 75% petition for separate precinct)
Prior AG opinions:
- 1957-58 AGR 188 (Board's precinct-setting duty is mandatory)
Source
Original opinion text
Elections. Combining a Town and Township into one Precinct.
In your letter of August 29, 1966, you inquire, "as to whether the Town of Naples and Foxton Township (each being separate precincts) can be combined by the Board of County Commissioners into one precinct with one polling place. You state that it is your understanding that the Town of Naples is incorporated, that there are 29 qualified electors living within the Naples Precinct, 84 qualified electors living within Foxton Precinct, and that the Town of Naples is situated in Foxton Township.
You specifically ask:
"1. Does the Board of County Commissioners have the authority to combine the two election precincts above mentioned?
"2. If so, is a petition of 75% of the electors of each of the two precincts involved required?"
We read in the first sentence of the 1960 Supp. SDC 16.0801 that
"16.0801. The board of County commissioners shall, on or before the tenth day of September in each year in which an election is to be held, provide for election precincts throughout its county . . .
In a former opinion, 1957-58 A.G.R. 188, the Attorney General stated:
"These statutes (SDC Supp. 16.08) are clear and it follows that it is my opinion that the establishment and adjustment of the election precincts is a duty devolving upon the board of county commissioners and are mandatory except where they are specifically made discretionary by statute." (Emphasis added).
Question No. 1, above, is answered in the affirmative, that is, it is my opinion that the Board of County Commissioners do have the authority, in view of the factual situation which you have presented, to combine the two election precincts, and it is my further opinion that it is mandatory and the duty of the Board of County Commissioners to provide for the election precincts throughout and within its County.
1960 Supp. SDC 16.0801 (5) provides:
"Incorporated towns, wholly within one county, together with contiguous territory upon the petition of seventy-five percent of the qualified electors residing in such proposed election precinct may, in the discretion of the board, be set apart as a separate election precinct."
It is clear that Section 16.0801 (5) pertains in the situation in which seventy-five per cent of the qualified electors residing in a proposed election precinct petition the Board of County Commissioners to be set apart as a separate election precinct, and even after the filing of such petition, the statute sets forth that it remains in the discretion of the Board to set apart an incorporated town as a separate election precinct. Such a situation contemplated at 16.0801 (5) is not the situation which you have presented in your letter of August 29.
It must follow that the answer to Question No. 2, above, is in the negative, that it is my opinion that a petition of 75% of the electors of each of the two precincts involved is not required to combine the Town of Naples and Foxton Township into one precinct with one polling place.