Clark County had to split a municipal ward across two county commissioner districts to satisfy one-person-one-vote. Does that violate the South Dakota statute requiring each municipal ward to be a separate election precinct? If not, how should the election precincts be set up for the primary and general elections?
Plain-English summary
In January 1968, the Clark County Commissioners redrew their commissioner districts to comply with the one-person-one-vote principle that the U.S. Supreme Court's redistricting decisions had imposed on local legislative bodies (notably Avery v. Midland County, 390 U.S. 474 (1968), although that landmark case came down later in 1968). Their 1966 statutory framework (SDC 12.0608 as amended by Ch. 22, Laws of 1966) authorized the redistricting. To equalize district populations, the commissioners had to divide Ward Three of the City of Clark so that part of the ward was in one commissioner district and the rest in another.
Mr. Syvertson (likely the Clark County state's attorney or auditor) asked AG Frank Farrar whether that ward-split violated SDC 1960 Supp. 16.0801(3), which required each ward in every municipality to be a separate election precinct. And if the split was valid, how should the precincts be set up for the primary (June 1968) and general elections.
Farrar walked through the answer. The 1966 amendment to SDC 12.0608, combined with Bailey v. Jones (a 1966 SD Supreme Court decision on county commissioner reapportionment), made one-person-one-vote the governing principle for county commissioner districts. Any statutory provision creating an artificial barrier to that principle was unconstitutional. So SDC 16.0801(3), to the extent it would prevent a ward split needed for population equality, had to yield. The split was valid.
On the precinct mechanics, Farrar said the affected ward should be divided into two separate precincts with separate polling places for the primary and general elections. Letting all the Ward Three voters vote at the same polling place would produce chaos and risk voters picking the wrong commissioner ballot. The proposed names "First Precinct, Ward Three" and "Second Precinct, Ward Three" were acceptable. Under SDC 16.0801 as amended, the commissioners had until September 10 each election year to adjust precincts, and Farrar suggested the commissioners get this done before the June 4, 1968 primary so the auditor could prepare materials in time.
Currency note
This opinion was issued in 1968 during AG Frank Farrar's tenure. 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. South Dakota's redistricting and election precinct framework has been substantially overhauled since 1968; SDC has been recodified into SDCL. The fundamental one-person-one-vote principle remains controlling but the procedural details (timing, notice, precinct mechanics) should be checked against current law.
What the opinion meant at the time
For Clark County, the opinion confirmed the commissioners' January 1968 redistricting was lawful. They could proceed with separate Ward Three precincts for the upcoming primary.
For other South Dakota counties facing similar redistricting questions, the opinion gave a clean rule: one-person-one-vote trumps statutory ward-separation requirements. Counties could split wards if needed for population equality, with the implementation requirement that they create separate precincts to keep ballots clean.
For municipal election officials, the opinion did not disturb the underlying ward structure for municipal elections; it only modified the precinct mechanics for county-and-state elections held within the city.
For the South Dakota Supreme Court's Bailey v. Jones line of authority, the opinion was a direct administrative application: the case had struck down artificial barriers, and the AG was applying that principle to dispose of another barrier.
Common questions
Q: What was Bailey v. Jones about?
A: Bailey v. Jones, 81 S.D. 617, 139 N.W.2d 385, was the 1966 SD Supreme Court decision that struck down the pre-1966 county commissioner district statute as inconsistent with one-person-one-vote. The 1966 legislative amendment to SDC 12.0608 was the legislature's response. Together, Bailey and the amendment governed county commissioner redistricting.
Q: Why did the ward-precinct issue come up at all?
A: SDC 16.0801(3) required each municipal ward to be a separate election precinct. The drafters had assumed wards and commissioner districts would align. When they did not, the statute pointed toward not splitting wards, which would create an artificial barrier to commissioner district equality.
Q: What if the commissioners had refused to split the ward?
A: They would have produced a commissioner district scheme that did not satisfy one-person-one-vote, and the redistricting would have been vulnerable to constitutional challenge.
Q: How did the September 10 statutory deadline interact with this?
A: SDC 16.0801 as amended gave the commissioners until September 10 each election year to set up precincts. Farrar's suggestion to do it before the June 4, 1968 primary was practical: the auditor needed enough lead time to prepare supplies, voter lists, and ballots. The September 10 deadline was the outer bound, not the only relevant timing.
Q: Was this a federal or state law question?
A: Both. One-person-one-vote came from the U.S. Supreme Court's Reynolds v. Sims (1964) and its progeny, applied to local governments through Avery v. Midland County (1968, decided after this opinion). South Dakota implemented it via the 1966 amendment to SDC 12.0608 and the Bailey v. Jones decision.
Background and statutory framework
The mid-1960s reapportionment revolution started with Baker v. Carr (1962) and Reynolds v. Sims (1964). The U.S. Supreme Court held that legislative districts must be substantially equal in population to satisfy the Fourteenth Amendment. The principle extended to local government bodies that exercise governmental functions.
South Dakota's response was the 1966 amendment to SDC 12.0608 (Ch. 22, Laws of 1966), which set up the framework for county commissioner reapportionment. Bailey v. Jones in the same year confirmed the constitutional necessity of population-equal districts.
The Clark County situation in early 1968 was an early test of the implementation. The county had done its January redistricting; it now needed to run primaries and general elections under the new districts. SDC 16.0801(3) was a pre-reapportionment-era statute that had assumed ward integrity. Farrar's opinion harmonized the older election-procedure rules with the newer constitutional reapportionment imperative.
Citations and references
Statutes:
- SDC 12.0608 (county commissioner districts; amended 1966)
- SDC 1960 Supp. 16.0801(3) (each municipal ward as separate election precinct)
- SDC 16.0801, as amended (election precinct provisions)
Cases:
- Bailey v. Jones, 81 S.D. 617, 139 N.W.2d 385 (1966)
Federal background:
- Reynolds v. Sims, 377 U.S. 533 (1964) (one-person-one-vote for state legislative districts)
Source
Original opinion text
Reapportionment of county commissioner districts. If one-man one-vote requires a municipal ward to be divided, such is lawful. Mechanics of fixing election precincts for primary and general election in such case.
Dear Mr. Syvertson:
You have requested an official opinion relative to this factual situation:
"The Clark County Commissioners, in pursuance to the mandate of SDC 12.0608, as amended by Ch. 22, Laws of 1966, redistricted the county commissioner districts in January. In order to effectuate the one-man one-vote principle, it was necessary to divide Ward Three in the City of Clark so that a portion of such ward is represented by one county commissioner and the balance by another."
The questions you have submitted with such factual situation are these:
"(1) Would this reapportionment be invalid in view of the patent fact that such is violative of SDC 1960 Supp. 16.0801 (3) which requires that each ward in every municipality must be a separate election precinct?
"(2) If Question No. 1 is answered NO, for the purposes of the primary and general election, should such ward be divided into separate election precincts, or should the electors in such ward vote in a single election precinct with the proper ballots (showing the proper county commissioner) being given to the voters?
"(3) If the division of such ward into election precincts is proper, when should such be done, and would it be proper to denominate such election precincts at 'First Precinct, Ward Three' and 'Second Precinct, Ward Three' to distinguish the territorial boundaries of such commissioner districts?
A careful reading of the 1966 amendment to SDC 12.0608, together with Bailey v. Jones, 81 SD 617, 139 NW 2d 385, leads me to the conclusion that the one-man one-vote principle applies to county commissioner districts and any artificial barrier to accomplishing such rule is unconstitutional. It is axiomatic that wards are necessary for municipal elections and as such have no bearing upon county and statewide elections which are held at the primary and general election. The restrictive portions of SDC 16.0801, as amended, and especially subsection (3), if such would result in a denial of the one-man one-vote, is an artificial barrier, which in my opinion, our court would hold unconstitutional as it did the artificial barriers in SDC 12.0608, before its amendment in the Bailey case.
Question No. 1 should be answered NO. If such reapportionment satisfies the one-man one-vote principle, such reapportionment is valid notwithstanding that it may conflict with portions of SDC 16.0801, as amended.
In answer to Question No. 2, it is my opinion that the affected ward in Clark should be divided into two separate voting or election precincts for the primary and general election. The practical difficulties attendant to an election would indicate to authorize all of the electors in such ward to vote at the same election booths would result in chaos and easily could result in electors voting for the wrong Commissioner. The division of such ward into separate election precincts, with separate polling places seems not only proper, but, in order to protect the purity of the election, required.
In answer to Question No. 3, I believe your designation of such separate election precincts is possible. You will notice that SDC 16.0801 (as amended) provides that such election precincts shall be provided or adjusted by the County Commissioners, on or before the tenth day of September in each year an election is held. As the primary election will be held prior to September 10, 1968, it is my suggestion the County Commissioners divide such Ward Three into separate election precincts prior to the primary election, June 4, 1968, and at such a time that the County Auditor can furnish the necessary supplies, lists and the like requisite for such election.
Respectfully submitted,
Frank Farrar
Attorney General