Could a candidate for the South Dakota House of Representatives appear on the primary ballot if he would turn 25 (the constitutional minimum age) only between the primary and the general election, but would meet all qualifications by the time of the general election?
Plain-English summary
A South Dakota official asked the AG whether a person could run for state representative if he would not be 25 by the date of the primary election but would be 25 by the date of the general election. Article III, Section 3 of the South Dakota Constitution requires that a representative be a qualified elector, a U.S. citizen, a resident of South Dakota for two years preceding "his election," and 25 years old.
The AG focused on the phrase "his election." When does a candidate need to be 25? At the primary, or at the general election?
The AG noted the broader legal question of timing has split courts. Some courts read "eligible" to mean "qualified to be elected or selected," making the eligibility date the election date. Others read "eligible" to mean "qualified to hold office," making the eligibility date the date of taking office. The annotations at 88 ALR 812 and 143 ALR 1026 collect the conflicting cases, and treatises at 42 Am. Jur. 910 and 67 C.J.S. Officers § 11 summarize the split.
But the AG concluded that the conflict was not relevant in South Dakota because of the specific design of the state's election laws. The primary election was a party nomination event, not the actual election for state representative. The actual election was the general election in the fall. So "his election" in Article III, Section 3 meant the general election, and that was the date by which the candidate had to be 25.
The AG also noted that for some offices (smaller local or judicial offices, presumably), the primary actually was the election in functional terms (e.g., a one-party district where the primary winner had no general-election opponent). But for state representative, the general election was the operative event.
Result: a candidate under 25 at the primary could be nominated at the primary as long as he would turn 25 by the date of the general election.
Currency note
This opinion was issued in 1968 (approximate, based on context and style). 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. Article III, Section 3 of the South Dakota Constitution likely still imposes age, residence, and citizenship qualifications, but the modern statutory framework around candidate filings and primaries has evolved; any current candidate-eligibility question should be checked against the current SDCL Title 12 election code and the current constitutional provision.
What the opinion meant at the time
For the prospective candidate, the opinion meant he could file his nominating petition, appear on the primary ballot, win the primary, and then turn 25 in time for the general election. He did not need to wait until the next cycle.
For county auditors and the Secretary of State's office, the opinion meant they could not refuse to accept nominating petitions on the ground that a candidate was a few months too young at the time of filing. If the candidate would meet the age requirement by general-election day, he was eligible.
For other constitutional offices with age qualifications (state senator, governor, etc.), the opinion's logic suggested the same answer: the eligibility date was the general election (or, for offices effectively decided at the primary, the primary). The opinion does not separately work through senate or executive office qualifications, but the analytical framework would apply.
For party committees and primary opponents, the opinion meant they could not challenge a youthful candidate's primary eligibility based on age alone if the candidate would turn 25 before the general.
Common questions
Q: Is this opinion still good law?
A: Likely yes in substance, though it should be re-verified. South Dakota's primary system still functions as a party-nomination event for state representative, so the analytical premise holds. But any current question should be checked against current SDCL Title 12 election provisions and the current S.D. Constitution.
Q: Could the candidate be challenged after winning the primary if he was still under 25 at the time?
A: Under the opinion, no. The eligibility window opened on the date of the general election. The primary outcome was a party nomination, not an election to office. So a primary win by a 24-year-old who would turn 25 by November stood.
Q: What about residency? The constitution requires two years residency "preceding his election."
A: The opinion does not analyze residency separately. But the same logic, that "his election" means the general election, would apply: the two-year clock would run backward from the general election, not from the primary.
Q: What if the primary functionally decides the office because the district is uncontested in the general?
A: The AG acknowledged that for some offices, the primary actually is the election. The opinion did not work that case through for state representative. In practice, even a one-party South Dakota district still holds a general election, and the constitution's reference to "election" would point to the general. But the AG's parenthetical caveat suggests this question was being held in reserve.
Q: What does "eligibility" mean in the broader case law?
A: Some jurisdictions hold "eligibility" means qualified to be elected at the election; the qualification must exist on election day. Other jurisdictions hold "eligibility" means qualified to hold the office; the qualification need only exist on the date of assuming office. The AG referenced 88 ALR 812 and 143 ALR 1026 for the conflict but did not pick a side, because South Dakota's primary-as-nomination structure resolved the question without needing to pick a side.
Background and statutory framework
The constitutional provision at issue, S.D. Const. art. III, § 3, reads:
"No person shall be eligible to the office of Representative who is not a qualified elector in the district from which he may be chosen, and a citizen of the United States, and who shall not have been a resident of the state or territory for two years next preceding his election, and who shall not have attained the age of twenty-five years."
Four cumulative requirements:
1. Qualified elector in the district
2. U.S. citizen
3. Resident of the state for two years preceding "his election"
4. Age 25
The constitutional drafters did not specify which date controls (filing, primary, general, or taking office). The AG worked around the ambiguity by characterizing the primary as a nomination event, leaving the general election as the operative "election."
The opinion is also a small example of the AG's office reading constitutional provisions against the backdrop of statutory machinery. The constitution requires what it requires, but the statutory election code defines which events count as "elections." For state representative, the code's general-election structure made the general the operative date.
Citations and references
Constitutional provision:
- S.D. Const. art. III, § 3 (qualifications of state representatives)
Annotations and treatises:
- 88 ALR 812 (collected cases on timing of eligibility for public office)
- 143 ALR 1026 (further collected cases on eligibility timing)
- 42 Am. Jur. 910 et seq., §§ 39-40 (Public Officers, eligibility section)
- 67 C.J.S. Officers § 11
Source
Original opinion text
Elections. A person who satisfied constitutional requirements for State House of Representatives at time of General Election is eligible to be nominated for such office at the primary although at time of primary he lacks all of the requirements of eligibility.
You have requested my official opinion in answer to this question:
"May a person be a candidate for Representative to the South Dakota Legislature who is not 25 years of age at the time of the primary election, but will meet this as well as all other qualifications at the time of the general election?"
Section 3, of Article III of the South Dakota Constitution provides for the qualification of members of the South Dakota House of Representatives in this language:
"No person shall be eligible to the office of Representative who is not a qualified elector in the district from which he may be chosen, and a citizen of the United States, and who shall not have been a resident of the state or territory for two years next preceding his election, and who shall not have attained the age of twenty-five years."
Usually this question is raised as to eligibility for public office as between the time of election or the time of assumption of the office. The decisions upon this problem are collected in 88 ALR 812 and 143 ALR 1026. Reference may also be made to 42 Am. Jur. page 910 et seq, (sections 39 and 40) and 67 CJS "Officers" Sec 11. In the annotation in 88 ALR, the annotator prefaced his discussion with the comment that "on the question as of what time eligibility to public office must be determined, there is a great conflict in the courts." He pointed out that if the Constitution or statute either expressly or by implication required eligibility to exist at the time of the election, there is no question that that is the date of qualification and likewise, if the constitutional or statutory provision required in direct language, or by implication, that such qualification exists at the time of the commencement of the term of office, there is no question that such is the date of qualification. However, the conflict in the cases arises when the Constitution or statute provides no time for the existence of eligibility, as to whether or not such eligibility must exist at the time of the "election," or need not then exist, but must exist at the time of assumption of the public office.
The conflict arises as to the interpretation of the word "eligible." Those courts which interpret "eligible" to mean "qualified to be elected or selected to such office," state that such must be at the time of election. On the contrary, the courts arriving at the opposite conclusion take the position that "eligibility" when used in connection with a public office is not qualified by explanatory words indicating such time is the time of election, such refers to the qualification to hold office rather than the qualification to be elected to office, and therefore the time to meet such qualifications is when assuming such office and a lack of qualification when elected is immaterial.
These cases, and the conflict therein, however, are not necessarily involved in the problem you have raised for the reason that a consideration of the whole of the election statutes of our state, conclusively reveal that the primary election is an election limited to the several political parties within the state and merely serve as a nomination of candidates for public office of such political parties, who will be candidates for election to such position at the general election in the fall. (I appreciate that for certain political offices the actual election of such candidates is made at the primary election; however, this does not apply to the office of State Representative.)
Under the facts as stated, the potential candidate, at the time of election to such office, (the general election) will possess all qualifications provided by the Constitution to be eligible to such office. The fact that such qualifications at the time of selecting or nominating such candidate do not exist is immaterial.
The answer to your specific question is YES.