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

Union County residents proposed dividing Jefferson Township to create Wynstone Township. SDCL 8-1-8(3) set a petition signature requirement for township reorganization. The opinion addressed who could sign that petition and how to determine residence.

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 used the voting residence definition in SDCL 12-1-4: the place where a person has fixed habitation and intends to return when absent. He concluded that registered voters actually living in the affected portion, along with people temporarily away who maintained a residence there and intended to return, counted. He also cited Heinemeyer v. Heartland Consumers Power Dist. for a related voting-residence rule under SDCL 12-4-1.

A footnote distinguished the petition rule from the election rule: the petition signatures came from the affected portion, while SDCL 8-1-10 allowed all qualified voters in Jefferson Township to vote on the proposed division if an election was held.

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 officials reviewing petitions, the opinion located the signature threshold in the registered voters residing in the portion proposed as Wynstone Township. It did not address a particular verification procedure or the commission's discretion after receiving a petition.

For voters outside the affected portion, the opinion said their signatures were not needed for this petition. Its footnote said all qualified voters in Jefferson Township would be eligible to vote on the proposed division under SDCL 8-1-10.

For county attorneys, the residency test counted registered voters actually living in the affected portion and those temporarily away who kept a residence there and intended to return. The opinion did not decide specific student, military, or seasonal-resident examples.

For nonresident landowners, land ownership alone did not satisfy the statute's requirement of registered voters residing in the affected portion. The opinion did not decide any particular landowner's residence.

Common questions

Q: What if the affected portion of the township and the proposed new township are not the same?
A: The opinion addressed a proposed division of Jefferson Township in which the affected portion would become Wynstone Township. It did not decide a different boundary arrangement or a reorganization involving several townships.

Q: Who decides the boundary of the "affected portion"?
A: The opinion did not resolve boundary-setting or specify a required map or legal description. It treated the portion proposed as Wynstone Township as the area whose registered voters had to sign the petition.

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: The opinion did not decide those examples. It counted registered voters who temporarily left the affected portion if they maintained a residence there and intended to return, using the voting-residence definition in SDCL 12-1-4.

Q: Does the petition trigger the election automatically, or does the commission have discretion?
A: The opinion did not decide whether an election follows automatically or what discretion the commission has after receiving a petition. It answered the signature and residency questions, with a footnote on who could vote at a township reorganization election.

Q: Why does the whole township get to vote on a division if only the affected portion can sign the petition?
A: The opinion did not explain the Legislature's policy reason. It observed that SDCL 8-1-10 used "affected civil townships" for the election, while SDCL 8-1-8(3) used "affected portions" for petition signatures.

Background and statutory framework

SDCL 8-1-8 addressed reorganization, division, or merger of a township or fraction of one. The proposed Jefferson Township division raised a question about which registered voters had to sign under subsection (3).

The opinion identified Union County residents' proposal to divide Jefferson Township and create Wynstone Township. It did not discuss why residents wanted the division.

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 distinguished the two statutory groups: registered voters in the affected portion for petition signatures, and qualified voters across Jefferson Township for a reorganization election.

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1703

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.