In South Dakota, when residents want to split off part of a township and form a new township, does the petition to start the process need signatures from a majority of the whole original township, or only from a majority of the people in the area that would become the new township?
Plain-English summary
A group of Union County residents wanted to split Jefferson Township into two pieces, with one piece becoming a new township called Wynstone. South Dakota law gives them a path to do that. SDCL chapter 8-1 governs how civil townships can be reorganized, divided, or merged. The process starts with a petition to the county commission. If the commission approves, the proposal goes to a vote of the affected township residents.
The Union County Board of Commissioners chairman, Mr. Ustad, asked AG Jason Ravnsborg two practical questions. First, when SDCL 8-1-8(3) requires the petition to be signed by "a majority of the registered voters residing in the affected portions of the affected townships," who counts? Does the petition need signatures from a majority of the whole original Jefferson Township, or only from a majority of the smaller piece that would become Wynstone? Second, what does "residing" mean: is it where someone has their primary home, or just where they happen to be when they sign?
Ravnsborg answered the first question by focusing on the phrase "affected portions." If the Legislature had wanted the whole township, it would have said "the affected township." The word "portions" must mean something, and giving it meaning required treating it as a sub-area of the township, specifically the area that would be split off. Otherwise the word would be surplusage, which South Dakota courts consistently refuse to assume the Legislature inserted.
The AG also pointed to a side observation that mattered: a different rule applies at the election stage. Under SDCL 8-1-10, once the petition is approved and the proposed division goes to a vote, the entire civil township votes, not just the affected portion. The Legislature carefully chose different wording for the petition stage and the election stage, and the AG respected the distinction.
On the second question, "residency," the AG borrowed the voting residence definition from SDCL 12-1-4. That statute defines residence as "the place in which a person has fixed his or her habitation and to which the person, whenever absent, intends to return." A college student who lives in Vermillion but maintains a Jefferson Township home and intends to return after graduation can be counted. Someone who has moved out of state with no intent to return cannot. The South Dakota Supreme Court had already used the SDCL 12-1-4 definition for general voting purposes in Heinemeyer v. Heartland Consumers Power Dist., and the AG saw no reason to apply a different rule for township reorganization petitions.
A footnote in the opinion underscored the asymmetry: petition signatures come only from the affected portion, but the eventual election is open to the whole township. That two-stage design is consistent with the way the Legislature handled other reorganization processes; the affected residents trigger the conversation, but the broader community gets to vote.
Currency note
This opinion was issued in 2021. 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 local government statutes are amended frequently, and chapter 8-1 in particular may have been refined in later sessions.
What the opinion meant for South Dakota township proponents at the time
For groups of rural residents proposing to split a township, the opinion lowered the practical bar. Collecting signatures from a majority of voters in a smaller affected portion is much easier than collecting them across an entire civil township. Petition circulators could focus their efforts where the support actually existed and where the new township would be located.
For county auditors and commissioners receiving petitions, the opinion clarified how to verify the signature threshold. The auditor must compare the signatures against the registered voter list, restricted to the affected portion (often defined by sections, ranges, and townships of land that map to the proposed Wynstone-equivalent boundary). The county commission cannot demand a higher threshold than the statute requires, but it also cannot accept a petition that failed to meet the majority of registered voters in the affected portion.
For township supervisors of the original township, the opinion did not give them veto power at the petition stage. The petition-versus-election distinction means the township's existing officials are not the deciders; voters within the affected portion drive the petition step, then voters of the whole civil township vote on the actual division. That two-stage design protects both the proponents (by letting them start the process without convincing everyone) and the broader community (by letting everyone vote when the question is actually decided).
For county state's attorneys advising auditors, the residency rule provided a workable test: same SDCL 12-1-4 framework that already governs voter eligibility in general elections. A person's voting residence is where they have fixed their habitation and to which they intend to return when absent. That includes deployed military personnel, college students, snowbirds with seasonal travel, and others temporarily away from home who maintain a township residence and an intent to return.
For property owners who hold land in a township but live elsewhere, the opinion did not extend signature eligibility to nonresident landowners. Landowner status alone does not satisfy SDCL 8-1-8(3); the statute reaches "registered voters residing." A landowner with a primary residence in Sioux Falls who owns farmland in Jefferson Township could not sign the petition on the basis of the farmland.
Common questions
Q: What if the affected portion of the township and the proposed new township are not the same?
A: The statute uses "affected portions of the affected townships," which the AG read as the portion that would be reorganized or split off, i.e., the area that would become the new township. If the proposal is more complex (e.g., reshaping boundaries between three townships), the same analytical approach applies: identify the area where the change actually occurs, and count the majority of registered voters within that area.
Q: Who decides the boundary of the "affected portion"?
A: The petition itself proposes the boundary, and the county commission ultimately decides whether to put the question on a ballot under SDCL 8-1-10. A petition with an unclear boundary description risks rejection. Proponents should describe the affected portion with sufficient precision (section/range/township legal descriptions, or a clearly identifiable map) for the auditor to determine which voters are in the affected portion.
Q: Can a registered voter who lives just outside the affected portion sign the petition?
A: Not for SDCL 8-1-8(3) purposes. The signature requirement is specific to voters residing in the affected portion. Those voters living outside the affected portion will instead get to vote in the SDCL 8-1-10 election if the petition is approved.
Q: What about temporary residents (college students, deployed military, seasonal residents)?
A: Under SDCL 12-1-4, voting residence is the place a person has fixed their habitation and to which they intend to return when absent. A college student who maintains their parents' home in the affected portion as their permanent address can sign. A deployed military member whose voter registration is still in the affected portion and who intends to return can sign. A snowbird in Arizona for the winter whose voter registration is in the township can sign. Each case turns on the person's intent and the facts of their residency.
Q: Does the petition trigger the election automatically, or does the commission have discretion?
A: SDCL 8-1-7 to 8-1-10 set up a structured process. Once the petition meets the threshold, the county commission processes it under the remaining steps of the statutory framework, including notice and an election under SDCL 8-1-10. The commission cannot ignore a petition that meets the threshold, but it also has procedural review responsibilities at each step.
Q: Why does the whole township get to vote on a division if only the affected portion can sign the petition?
A: Township reorganization changes the structure of the original township for everyone, not just the residents of the split-off portion. The original township will have a smaller territory, smaller tax base, and potentially different priorities if a piece is broken off. The Legislature decided that the whole civil township should have a voice in that decision, while letting only the directly affected residents trigger the process.
Background and statutory framework
South Dakota's civil townships (sometimes called "organized townships") are units of local government below the county level, primarily serving rural areas. They handle local roads, weed and nuisance management, and other small-scale services. SDCL chapter 8-1 governs how they are organized, reorganized, divided, or merged. The structure dates back to South Dakota's territorial era and reflects the section-based survey grid that organizes most of the state's rural land.
Township reorganization petitions are not common but do come up when local circumstances change, for example when one part of a township urbanizes faster than another, when a township grows too large to manage efficiently, or when historical boundaries no longer match the community of interest. Jefferson Township in Union County is in the southeast corner of the state, near Sioux City, Iowa; the Wynstone proposal reflected a community wanting more focused governance for its area.
Ravnsborg's analysis followed standard South Dakota statutory interpretation. The Supreme Court holds that statutes are read as a whole and that every word is given effect (no surplusage). In re Taliaferro, 2014 S.D. 82. The "affected portions" language was the analytical hook; treating it as surplusage would gut the careful distinction the Legislature drew between the petition stage and the election stage.
The cross-reference to the voting residence definition in SDCL 12-1-4 is a sensible choice. South Dakota's election framework already has a workable test for residency, and importing it into the township context avoids inventing a new standard. The Supreme Court's Heinemeyer decision had previously used SDCL 12-4-1 (a related statute) for voting residence in the broader election context.
The footnote on the SDCL 8-1-10 election rule is doctrinally important: it shows that the Legislature consciously used different wording at different stages and that the AG would not collapse them. Two-stage citizen initiatives (one threshold to trigger a vote, another threshold to actually decide) are a familiar pattern in South Dakota law. The same pattern appears in initiated measures, referendums, and other local government reorganization processes.
Source
Original opinion text
OFFICIAL OPINION No. 21-02
Re: Potential Division of Jefferson Township in Union County
Dear Chairman Ustad,
In your capacity as Chair of the Union County Board of Commissioners you have requested an official opinion from the Attorney General's Office on the following questions:
QUESTIONS:
- Whether, pursuant to SDCL 8-1-8(3), a petition to divide one township into two townships requires signatures from a majority of registered voters of 1) the proposed new township, or 2) from the original to-be-divided township?
- Pursuant to SDCL 8-1-8(3), who should be considered a "resident" of a township for purposes of ascertaining a majority of the registered voters?
ANSWERS:
- A petition to divide a township into two townships requires signatures only from a majority of residents living in the affected portion of the original to-be-divided township.
- "Voting residency," for purposes of ascertaining a majority of the registered voters that reside in a township, is defined by the provisions of SDCL 12-1-4.
FACTS:
Jefferson Township is an organized civil township located within Union County, South Dakota. Residents of Jefferson Township have expressed their desire to divide the township to create a new township to be named Wynstone Township. In reviewing the potential division, the question has arisen whether, pursuant to SDCL 8-1-8(3), a petition to divide Jefferson Township must contain the signatures of a majority of registered voter residing in Jefferson Township, or whether the petition must contain only the signatures of a majority of those registered voters residing within the anticipated new Wynstone Township? Additionally, a question has been submitted with regards to the definition of a "resident" for purposes of reaching a majority of registered voters within a township.
IN RE QUESTION 1:
You have requested a statutory interpretation of the language contained within SDCL 8-1-8, which states:
Any township or fraction of a township may be reorganized, divided, or merged with another township or fraction of a township, subject to approval by the voters in the affected civil townships and the affected portions of unorganized congressional townships as provided in §§ 8-1-7 to 8-1-10, inclusive, if: …
(3) A majority of the registered voters residing in the affected portions of the affected townships petition the board of county commissioners to propose that the townships or fractions of townships be reorganized, divided, or merged.
When interpreting statutes, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Commission, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 5, 636 N.W.2d 675, 681). The South Dakota Supreme Court has explained:
[W]e begin with the plain language and structure of the statute. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. When we must, however, resort to statutory construction, the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language.
In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (internal citations omitted).
After review of the statutory language, I have determined that signatures for a petition to divide Jefferson Township must come from a majority of the registered voters residing only in those portions of Jefferson Township that will become Wynstone Township.
SDCL 8-1-8(3) requires signatures from "[a] majority of the registered voters residing in the affected portions of the affected townships[.]" (emphasis added). If the Legislature had intended that a petition to divide or reorganize a township must come from a majority of voters residing in the entire township it could have simply worded SDCL 8-1-8(3) to require signatures from a majority of the registered voters living in "the affected township." "Affected portions," as used in the statute, must be given meaning and effect. In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 806-07. To interpret the statute to require a division petition to have a majority of signatures from residents of all of Jefferson Township would render the "affected portions" language of the statute as surplusage. I cannot reach such a conclusion, "'[t]he Legislature does not intend to insert surplusage into its enactments'". Steinberg v. South Dakota Dep't of Military and Veterans Affairs, 2000 S.D. 36, ¶ 12, 607 N.W.2d 596, 601 (citation omitted).
Undoubtedly, all of Jefferson Township will be affected by the proposed division. However, I conclude that use of "affected portions" in the statutory text, in conjunction with "affected township," limits the petition requirement to those registered voters residing in the affected portions of Jefferson Township that will be divided into Wynstone Township.
IN RE QUESTION 2:
As previously discussed, SDCL 8-1-8(3) requires "a majority of the registered voters residing in the affected portions of" Jefferson Township to sign a petition to divide the township. You have requested clarification of the definition of "residency" for purposes of ascertaining a majority of registered voters necessary to sign the proposed division petition.
The definition of residency, or voting residency, for purposes of a township division is not defined in SDCL ch. 8-1.
The Legislature has defined "voting residence" elsewhere in state law:
For the purposes of this title, the term, residence, means the place in which a person has fixed his or her habitation and to which the person, whenever absent, intends to return. A person who has left home and gone into another state or territory or county of this state for a temporary purpose only has not changed his or her residence. A person is considered to have gained a residence in any county or municipality of this state in which the person actually lives, if the person has no present intention of leaving. If a person moves to another state, or to any of the other territories, with the intention of making it his or her permanent home, the person thereby loses residence in this state.
SDCL 12-1-4.
Our state Supreme Court has recognized that SDCL 12-4-1 establishes the criteria for determining voting residence in South Dakota. Heinemeyer v. Heartland Consumers Power Dist., 2008 S.D. 110, ¶ 12, 757 N.W.2d 772, 776. The Court there recognized that "a voting residence is the place in which a person has fixed his or her habitation and whenever absent, intends to return." Id. (cleaned up). The Court further explained that "a person gains voting residence in the place in which he or she actually lives and has no present intention of leaving." Id. (cleaned up).
Based on an application of SDCL 12-4-1 to the requirements of SDCL 8-1-8(3), I conclude that only those persons actually living in the portion of Jefferson Township affected by the proposed division, and those individuals who may have temporarily left the affected portions of Jefferson Township, but who maintain a residence there and intend to return, may be considered for purposes of ascertaining a majority of registered voters necessary to sign a petition to divide Jefferson Township.
CONCLUSION
I conclude that signatures for a petition to divide Jefferson Township must come from a majority of the registered voters residing in those portions of Jefferson Township that will become Wynstone Township. Further, for purposes of determining those registered voters who reside in the affected portions of Jefferson Township, I conclude that all individuals who live in those portions of Jefferson Township should be included, as well as those individuals who may have temporarily absented themselves from Jefferson Township but who maintain a residence there with the intention to return.
Sincerely,
Jason R. Ravnsborg
ATTORNEY GENERAL
JRR/SRB/PMP/dd
[1] It should be noted that a different conclusion is reached when analyzing who may vote in a township reorganization election. SDCL 8-1-10 clearly states that "the proposed [township] reorganization, division, or merger shall be decided by the voters of the affected civil townships[.]" Here the Legislature references the affected civil township as a whole without limiting the identified class of voters to the "affected portions" of the affected townships. All qualified voters in Jefferson Township would be eligible, by operation of SDCL 8-1-10, to vote on the question of division of the township.