Do the people who work the polls at a city election (the 'judges' and 'clerks' of the election) get paid for their time? If so, who actually pays them, the city or the county?
Plain-English summary
A city wanted to know whether its election day workers (called "judges" and "clerks" of the election, not to be confused with judicial officers) were entitled to be paid, and which body would foot the bill. The question seemed elementary, but the statute book did not have a clean answer.
The dedicated municipal election statute (SDC 45.13) did not set a compensation rate or even confirm that judges and clerks were paid at all. The closest provision, SDC 1960 Supp. 45.1320, said that municipal elections were "conducted, canvassed, recounted, and contested as elections under the general laws of this state" except as otherwise provided. The general municipal powers statute (SDC 45.02) did not mention election worker pay, and the general appropriation power in SDC 54.0201(3) just said the city could "appropriate money for authorized purposes and provide for payment of the debt and expenses of the municipality."
The AG worked the question two ways and arrived at the same answer both times.
First, the AG observed that 29 CJS Elections Sec. 63 stated the general rule that most election officials are compensated. Common sense told the AG that this had to be true in South Dakota too, even if the municipal-specific statute was silent. The question then collapsed into: was there statutory authority for the pay, and at what amount?
Second, the AG read the cross-reference in SDC 45.1320 to the general election laws as importing the general compensation rate. The general law (SDC 1960 Supp. 16.1710, as last amended by Chapter 74 of the Session Laws of 1967) fixed a compensation rate for judges and clerks of elections held under the general statute. Because municipal elections were "conducted" under the general laws by reference, the general compensation rate applied to municipal elections too. The South Dakota Supreme Court in Treat v. Morris (1910) and Higgins v. Gray (1929) had already accepted that the general election laws filled gaps in the municipal election statute.
On the second question (who pays), the AG was brisk: municipalities have the power under SDC 54.0201(3) to appropriate money for authorized municipal purposes. Election worker compensation was a "necessary expense" of holding a municipal election, which was itself a lawful municipal purpose. So the city paid out of municipal funds. Not the county.
Currency note
This opinion was issued in 1968. 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 SDC sections cited in this opinion have been recodified into the current SDCL Titles 9 (Municipal Government) and 12 (Elections). The compensation rate for election officials is set today by current statute and may vary based on whether the election is municipal, school, county, or general. Cities setting election worker pay should consult the current SDCL provisions and the Secretary of State's election manuals.
What the opinion meant at the time
For municipal clerks setting up election payrolls, the opinion confirmed that they should pay their judges and clerks at the general election rate (then set by SDC 16.1710 as amended by Ch. 74 SL 1967) out of the municipal treasury. They did not need to bill the county, hold the workers' fees back, or treat election day labor as volunteer service.
For city finance officers and governing bodies, the opinion provided the legal basis to include election worker compensation in the annual budget. Election expenses were a recognized municipal purpose under SDC 54.0201(3), and the appropriation could move money from the general fund into election worker pay without legal trouble.
For poll workers, the opinion was reassurance that they were entitled to pay even if no specific municipal ordinance addressed the question. If a city tried to assert that municipal election work was uncompensated volunteer service, the worker had a statutory basis (through the cross-reference in SDC 45.1320 to the general election laws) to demand the standard rate.
For county auditors and treasurers, the opinion drew a clean line: municipal elections were the city's financial responsibility. The county was not on the hook for paying poll workers at municipal elections, even though the county might be administering general elections held on similar dates.
Common questions
Q: What was the actual compensation rate for poll workers at the time?
A: The rate was whatever SDC 1960 Supp. 16.1710, as last amended by Chapter 74 of the Session Laws of 1967, specified for judges and clerks of elections held under the general statute. The opinion did not quote the dollar figure. Cities would have looked at the current text of 16.1710 (as amended) to determine the per-day or per-election rate.
Q: Did the city have to pay all the workers identically?
A: The general election compensation provisions set rates that may have varied by role (judges versus clerks) or by hours worked. The opinion did not break that down, but cities would have followed the general statute's structure.
Q: Was election worker compensation subject to taxation?
A: The opinion did not address tax treatment. Standard payroll tax rules would have applied to the extent the workers were employees.
Q: Could a city pay more than the general statutory rate?
A: The opinion did not address whether a city could supplement. The general appropriation power supports the basic compensation; whether a city could add a local supplement on top of the statutory rate would have required separate analysis. Cities pressed on the question would have looked for express authority before paying extra.
Q: What if a city had been operating for years on the assumption that poll workers were unpaid?
A: The opinion implied that workers had a statutory entitlement going back to whenever the general election rate provisions applied to municipal elections. Whether workers could recover back pay would depend on statute-of-limitations questions the opinion did not address.
Q: Did the opinion address compensation for the city clerk's election-day work?
A: No. The city clerk's general compensation was set under separate municipal salary provisions. The opinion focused on the judges and clerks who staffed the polls and counted the ballots.
Q: What about ballot printing, polling place rental, voting machine maintenance, and other election expenses?
A: The opinion did not catalog every expense, but the same reasoning carried over. SDC 45.13 expressly authorized the city to furnish ballots, and SDC 54.0201(3) authorized appropriations for authorized purposes. All ordinary election expenses were the city's to pay.
Background and statutory framework
South Dakota's election code in the 1960s consisted of two parallel sets of provisions: a general election code in SDC chapter 16, which covered state and county elections, and a municipal election code in SDC chapter 45.13, which covered city elections. The two codes cross-referenced each other in places, with the municipal code expressly importing parts of the general code by reference rather than re-stating them.
SDC 1960 Supp. 45.1320 was the import provision: it said municipal elections were conducted under the general election laws "except as otherwise provided." Where the municipal code was silent on a procedural point, the general code filled the gap. The AG read that import provision broadly enough to cover not just procedural details (how to canvass, how to recount, how to contest) but also the compensation framework for poll workers, which had no explicit treatment in the municipal code.
The general appropriation power in SDC 54.0201(3) gave every municipality authority to "appropriate money for authorized purposes and provide for payment of the debt and expenses of the municipality." Election expenses, including poll worker pay, fit comfortably within "authorized purposes" because the legislature had expressly authorized municipalities to hold elections (SDC 45.13).
The South Dakota Supreme Court's earlier decisions in Treat v. Morris and Higgins v. Gray had accepted the general principle that the general election laws applied to municipal elections in the absence of specific municipal provisions. The 1968 opinion built on that principle to fill the compensation gap.
The text of SDC 1960 Supp. 16.1710, as amended by Chapter 74 of the Session Laws of 1967, set the actual compensation rate for poll workers at general elections. The opinion did not quote the rate. Anyone administering pay would have looked at the current version of 16.1710 to determine the dollar amount.
Citations and references
Statutes:
- SDC 1960 Supp. 45.1320 (municipal elections conducted under general election laws)
- SDC 45.13 (general municipal election authorization; provision of ballots)
- SDC 45.02 (general municipal powers)
- SDC 54.0201(3) (municipal appropriation power)
- SDC 1960 Supp. 16.1710 (as last amended by Ch. 74 of the Session Laws of 1967) (general election poll worker compensation rate)
Cases:
- Treat v. Morris, 25 S.D. 615, 127 N.W. 554 (1910) (general election laws apply to municipal elections in absence of specific provision)
- Higgins v. Gray, 54 S.D. 488, 223 N.W. 711 (1929) (same)
Treatises:
- 29 CJS Elections Sec. 63 (general rule of compensation for election officials)
Source
Original opinion text
Elections. Judges and Clerks of Municipal Elections are entitled to compensation for such services to be paid from municipal funds.
You have requested my official opinion in answer to these questions:
"1. What compensation, if any, are the Judges and Clerks of municipal elections entitled to?"
"2. If any compensation for services rendered is allowed to judges and Clerks of municipal elections, which public body pays such compensation?"
It seems settled law that most election officials are compensated for their services, such compensation being payable in the manner, and limited to the amount therefor as provided by statute. (See 29 CJS p. 150 et seq (Elections Sec. 63).
Question No. 1 which you have submitted, initially presents the question: "Do Judges and Clerks of municipal elections receive any compensation for such services?" Such must be answered that either they receive compensation, or they are not to be compensated. Common sense tells us that a payment of compensation is expected. Do the statutes of the State authorize such compensation? If such is authorized, what is the amount of such compensation?
As you have pointed out, there is no specific statute in the law governing municipal elections (SDC 45.13, or amendments thereto) fixing or authorizing any payment for such services. The only provision of such specific statute being as provided by SDC 1960 Supp. 45.1320, wherein it is provided:
"Except as otherwise provided, all municipal elections shall be conducted, canvassed, recounted, and contested as elections under the general laws of this state. The number of judges and clerks of election for each voting precinct shall be determined by the governing body and shall be appointed by said governing body at a regular meeting preceding the election, provided, however, that not less than two judges and one clerk nor more than three judges and two clerks shall be appointed for each voting precinct."
It is interesting to note that in SDC 45.02, and acts amendatory thereof, wherein numerous powers are granted to all municipalities, there is no specific authority granted to hold an election, or to pay for ballots used at a municipal election from municipal funds. The closest authorization appearing in SDC 54.0201(3) wherein every municipality is authorized to
"appropriate money for authorized purposes and provide for payment of the debt and expenses of the municipality."
However, SDC 45.13 as amended, does authorize annual and special elections and provides for the furnishing of ballots by the municipality.
The question you have submitted has never been officially answered by this office; such subject matter has never been presented our Supreme Court. The Court, however, has indicated that in the absence of specific provisions in the laws concerning municipal elections, that as the statute states, the general election laws apply. (See Treat v. Morris, (1910) 25 S.D. 615, 127 N.W. 554 and Higgins v. Gray (1929) 54 S.D. 488, 223 N.W. 711.
It is my opinion that the payment of the judges and clerks of municipal elections for their services is a necessary expense of a municipality, and money may be appropriated for such purpose, as such is an authorized municipal purpose. Likewise, it is my opinion, in the absence of specific statutory direction, that the payment for such services comes within the "conduct" of such municipal election, and the statutes governing elections generally apply, and prescribe such compensation.
The specific answer to Question No. 1, is that the judges and clerks of municipal elections are entitled to compensation, such compensation being the same as the judges and clerks of elections under the general statute (SDC 1960 Supp. 16.1710, as last amended by Chapter 74 of the Session Laws of 1967) which fixes such compensation.
Question No. 2 is simpler. As such compensation is authorized and for a lawful municipal purpose, such judges and clerks of municipal elections are paid from municipal funds.