Can a South Dakota city with a home rule charter, like Sioux Falls, switch its municipal elections to ranked choice voting or approval voting instead of a traditional one-vote-per-person plurality system?
Plain-English summary
A Sioux Falls City Councilmember named Brekke asked the South Dakota Attorney General whether his city, which operates under a home rule charter, could change its municipal elections to use ranked choice voting or approval voting. Both are well-known alternatives to the standard plurality system, but they work differently.
Under ranked choice voting (sometimes called instant runoff voting), each voter ranks the candidates in order of preference. If no candidate gets a majority of first-preference votes, the last-place candidate is eliminated and their ballots transfer to each voter's next preference. The process repeats until one candidate has a majority.
Under approval voting, each voter can vote for, or mark approval of, as many candidates as they like. The candidate with the most approval votes wins. There is no ranking, just a yes-or-no on each candidate.
The state constitution lets home-rule cities adopt their own ordinances on most topics. But there is a catch: a home-rule city ordinance cannot conflict with state law. South Dakota election statutes (SDCL 9-13-25 through 9-13-27.1) set rules about how municipal election winners are determined. The candidate with the highest number of votes wins. If a city wants to require an actual majority, it can adopt a runoff election. The runoff has to be between the top two candidates (SDCL 9-13-26.1), has to happen three weeks after the first election, and must be properly noticed (SDCL 9-13-27.1).
Chief Deputy AG Charles McGuigan, writing for AG Ravnsborg, ran each voting method through those state-law requirements.
Approval voting, he concluded, fit fine. The candidate with the most approval votes is still the candidate with the "highest number of votes." Each approval mark is a "vote" in the common-sense and dictionary meaning of the word. If no candidate ends up with a majority and the city has an ordinance requiring a runoff, the runoff still happens under SDCL 9-13-26.1 between the top two approval recipients. No conflict.
Ranked choice voting, however, did not fit. The instant-runoff mechanism conflicts with state law in two specific ways. First, SDCL 9-13-26.1 requires any runoff to be between only the top two candidates, but ranked choice voting runs sequential eliminations involving all candidates, not just two. Second, SDCL 9-13-27.1 requires a runoff to be held three weeks after the first election, with proper notice, but ranked choice voting compresses the runoff into the original ballot tabulation, eliminating the three-week interval and notice. Either conflict, the AG said, was enough to make ranked choice voting incompatible with state law. The state has spoken on how runoffs work, and a home rule city ordinance cannot rewrite those rules.
So the bottom line: South Dakota cities under a home rule charter (like Sioux Falls and Rapid City) may experiment with approval voting if they choose. If they want ranked choice voting, the change has to come from the Legislature, not from the city council.
What this means for you
For home-rule municipal councils and charter drafters. Read this opinion carefully before drafting any election reform ordinance. Approval voting is currently on the table; ranked choice voting is not. Any proposal that has the city, on its own, doing instant-runoff tabulation will run into the AG's position. If you want to put a true ranked choice system in place, the realistic path is to lobby the Legislature to amend SDCL chapter 9-13, not to push a city ordinance that the AG has already flagged as preempted.
For city attorneys advising on election ordinances. This opinion is squarely on point and persuasive in South Dakota. It does not bind a court, but a city that ignores it accepts the risk of litigation and the practical risk that the county auditor will refuse to administer the election. Document the analysis comparing the proposed ordinance to SDCL 9-13-25 to -27.1 before approving anything for council consideration.
For election reform advocates and opponents. The opinion is a clear roadmap. Advocates for approval voting can move forward at the local level under existing home rule powers. Advocates for ranked choice voting need a state legislative campaign, which is a much heavier lift but also more durable once enacted. Opponents of either method have a clean argument for why ranked choice belongs in the legislature, and a narrower (but still arguable) case against approval voting based on policy concerns rather than preemption.
For county auditors who administer municipal elections. If a home-rule city instructs you to count an election in a way that does not match SDCL 9-13-25 to -27.1, this opinion gives you cover to push back and ask for written legal sign-off. The auditor should not be in the middle of a city-versus-state preemption dispute without clarity from counsel.
For voters considering charter amendments. If a home-rule city puts a ranked-choice charter amendment on the ballot anyway, understand that approval by voters does not automatically resolve the preemption issue. State law preempts conflicting charter provisions, not just ordinances. The vote could create a charter rule that cannot be enforced unless the Legislature acts.
Common questions
Q: Why is approval voting okay but not ranked choice voting?
A: The difference comes down to whether each method can coexist with the specific state runoff rules. Approval voting picks the candidate with the most approval votes, which fits SDCL 9-13-25's "highest number of votes" rule. If a city wants to require a majority, the runoff between the top two approval recipients still works under SDCL 9-13-26.1 and SDCL 9-13-27.1. Ranked choice voting builds an instant runoff into the original ballot, eliminates multiple candidates sequentially rather than confining to two, and skips the three-week separate runoff. Those are direct conflicts with the state statutes.
Q: Is the AG saying ranked choice is bad policy?
A: No. The opinion explicitly is not a policy assessment. It is a statutory preemption analysis. If the Legislature wanted to adopt ranked choice voting statewide or to authorize it for home rule cities, it could do so. The AG just concluded that under current state law, ranked choice voting cannot coexist with the runoff statutes.
Q: What about state elections (governor, legislators)?
A: This opinion addressed only municipal elections under home rule charters. Statewide elections are governed by a separate framework. Any change to how statewide candidates are elected would similarly require legislative action.
Q: Could a non-home-rule city adopt approval voting?
A: The opinion was framed around home rule charter authority. Non-home-rule municipalities have less independent legislative authority and would likely be more tightly bound to state-default election procedures. A non-home-rule city that wanted approval voting would have a harder legal argument.
Q: What was the precise hangup with ranked choice?
A: Two things. First, SDCL 9-13-26.1 limits a runoff to the top two candidates. Ranked choice voting can run several rounds and involve more than two candidates in successive eliminations. Second, SDCL 9-13-27.1 requires a runoff to be a separate election held three weeks later, with proper notice. Ranked choice voting compresses the runoff into the original tabulation. Each conflict on its own was sufficient.
Q: Why didn't approval voting trip the same wires?
A: Because approval voting does not run any sequential eliminations or instant runoffs. It just counts approvals. If no candidate gets a majority, a separate runoff election under SDCL 9-13-26.1 and SDCL 9-13-27.1 can still happen in the ordinary way (between the top two). The system fits inside the state framework rather than trying to replace it.
Q: If I am a Sioux Falls voter, can I just expect approval voting next election?
A: No. The opinion says approval voting is permissible if the city adopts it. The city council still has to pass an ordinance changing the system, and the council in 2022 did not necessarily intend to do so. The AG opinion only resolves whether the city could; it does not decide whether the city will.
Background and statutory framework
The South Dakota Constitution's home rule provision (Article IX, section 2) was adopted to give cities and counties broader authority to manage their own affairs without running every choice through the Legislature. Home rule charters create a measure of self-government, but they remain subject to the state constitution and state law. The Supreme Court has summarized the rule simply: home rule city ordinances may not conflict with state law, and where they do, state law preempts.
The election framework in SDCL chapter 9-13 is part of a larger statewide system that the Legislature has refined over decades. The Legislature chose plurality as the default for municipal elections (highest number of votes wins) and authorized cities to require majorities through a runoff. The runoff itself was carefully structured: only between the top two candidates, only three weeks after the initial election, and only with proper notice. These rules promote uniformity (every runoff looks the same), accessibility (notice protects voter participation), and finality (one runoff, not a cascade of eliminations).
Ranked choice voting is in active use in several states (most prominently Maine and Alaska for statewide and federal elections, and many cities including San Francisco, Minneapolis, and New York City for municipal elections). Approval voting is rarer; Fargo, North Dakota was the first U.S. city to adopt it for municipal elections (2018). Both methods have advocates and critics. South Dakota's AG opinion does not assess the merits, only the legal compatibility.
The opinion is methodologically standard. McGuigan applied the Rantapaa framework on conflict (an ordinance conflicts where it duplicates state law, prohibits what state law allows, allows what state law prohibits, or operates in a field state law has occupied). He concluded that approval voting did not conflict, while ranked choice voting did, by examining the specific state runoff requirements and matching them against each voting method's mechanics. The reasoning is clean enough to provide a stable answer absent later legislative action.
A practical detail worth noting: even within approval voting, a city would still need to operationalize tabulation, ballot design, voter education, and possibly equipment changes. The AG opinion does not address whether existing voting equipment supports approval voting; that is a separate procurement and administration question. Cities considering the change should consult with their county auditor about whether the existing election infrastructure can handle the method.
Source
Original opinion text
OFFICIAL OPINION No. 22-01
Re: Adoption of Ranked Choice or Approval Voting by Home-Rule-Chartered Municipality
Dear Councilmember Brekke,
In your capacity as a member of the Sioux Falls City Council you have requested an official opinion from the Attorney General's Office on the following question:
QUESTION:
May a home-rule-chartered municipality adopt ranked choice voting or approval voting for municipal elections?
ANSWERS:
A home-rule-chartered municipality may adopt approval voting for municipal elections. However, ranked choice voting is determined to conflict with state law and may not be adopted by home-rule-chartered municipalities.
FACTS:
The South Dakota Constitution authorizes cities and counties to adopt a home rule charter that allows the local government unit to pass ordinances that do not conflict with its charter, the state Constitution, or the laws of the state. S.D. Const. Art. IX, § 2.
The City of Sioux Falls has adopted a home rule charter to govern the executive, legislative, and administrative functions of the City. Sioux Falls, S.D., Home Rule Charter Resolution (September 13, 1994). Consistent with the provisions of its Charter, Sioux Falls has adopted election ordinances that require "[t]he provisions of the general election laws … of the State…shall apply to all municipal elections unless specifically provided by city charter or city ordinance." Sioux Falls, S.D., Code of Ordinances § 38.001. Sioux Falls requires that all elections for municipal office be decided by a majority of the votes cast. Sioux Falls, S.D., Code of Ordinances § 38.010. If no candidate in a race between three or more candidates receives a majority of the votes cast, then a runoff election must be held between the two highest vote getters. Id.
In your request, you relate that ranked choice voting and approval voting are accepted methods of electing public officials. You indicate that adopting either method may save taxpayer dollars. You note, however, that there is uncertainty, and conflicting legal opinions, concerning the ability of a home-rule-chartered municipality to adopt ranked choice voting or approval voting.
IN RE QUESTION:
You have asked whether a home-rule-chartered municipality may adopt ranked choice voting or approval voting for municipal elections.
As noted above, the S.D. Constitution provides to municipalities the authority to adopt a home rule charter. Article IX, § 2 of the state Constitution provides in part:
A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution or the general laws of the state. The charter may provide for any form of executive, legislative and administrative structure which shall be of superior authority to statute, provided that the legislative body so established be chosen by popular election and that the administrative proceedings be subject to judicial review.
Powers and functions of home rule units shall be construed liberally.
Our state Supreme Court has reviewed home rule charter provisions and held that "[a]lthough the power granted to home rule cities may be great, it is not absolute." Bozied v. City of Brookings, 2001 S.D. 150, ¶ 11, 638 N.W.2d 264, 269. While "[municipalities] may exercise any power or perform any function not prohibited by our constitution and laws[,] … [the Court has] repeatedly noted that municipal corporations possess only those powers given to them by the Legislature." Law v. City of Sioux Falls, 2011 S.D. 63, ¶ 9, 804 N.W.2d 428, 431-32 [citations omitted]. Consequently, home rule authority allows "state and local governments [to] regulate in the same area [only] if the local rule does not conflict with state law." Rantapaa v. Black Hills Chair Lift Co., 2001 S.D. 111, ¶ 21, 633 N.W.2d 196, 203.
State law has established how the victor in municipal elections must be determined.
In any municipality, the person having the highest number of votes for any office shall be declared elected. However, the governing board of any municipality may, on or before the first of October in the year preceding, approve an ordinance requiring a runoff election to be conducted pursuant to [SDCL] 9-13-26.1 and 9-13-27.1.
SDCL 9-13-25. State law also requires runoff elections, in races involving three or more candidates, to be held between those candidates that finished in first or second place in the initial voting. SDCL 9-13-26.1. Runoff elections are required to be held three weeks from the date of the first election with proper notice of the runoff election published by the municipal finance officer. Id. See also SDCL 9-13-27.1.
As noted above, a home-rule-chartered municipality may pass election ordinances, but those ordinances may not conflict with the requirements of SDCL 9-13-25 through 9-13-27.1. Rantapaa, 2001 S.D. 111, ¶ 21. The Court has recognized "[t]here are several ways in which a local ordinance may conflict with state law." Id., ¶ 23. First, a municipal ordinance may duplicate state law. Id. Second, an ordinance may prohibit what state law allows, or conversely may allow that which state law prohibits. Id. Finally, an ordinance may conflict where state law has "[occupied] a particular field to the exclusion of all local regulation." Id. Where the local ordinance conflicts, "state law preempts or abrogates the conflicting local law." Id.
To answer whether a municipal ordinance adopting either ranked choice voting or approval voting may conflict with the provisions of SDCL 9-13-25 through 9-13-27.1, I must compare the definitions of both electoral systems to the statutory provisions.
Ranked choice voting refers to voting methods that use a ballot on which each voter ranks the available candidates in order of the voter's preference. Ranked Choice Voting, BALLOTPEDIA, https://ballotpedia.org/ranked-choice_voting_(RCV) (last accessed May 3, 2022). Any candidate that obtains a majority of first-preference votes wins that election. Id. In the event no candidate wins a majority upon first tabulation, the last-place candidate is eliminated and their votes are transferred to other remaining candidates in accord with the voter's preference rankings. Id. The votes transferred to another candidate are treated as first-preference votes for that candidate. Id. This elimination of candidates and transfer of votes is carried out until one candidate receives a majority of the votes cast. Id. In essence, ranked choice voting simulates sequential runoffs until a candidate is elected with a majority of the vote. Ranked choice voting is often referred to as "instant runoff voting." Id.
Approval voting is an election system whereby voters may vote for, or mark approval of, any number of candidates appearing on the ballot for a given race. Approval Voting, BALLOTPEDIA, https://ballotpedia.org/approval_voting (last accessed May 3, 2022). For example, if the election ballot for a particular race listed three candidates, each voter could vote once for as many of those three candidates the voter approved. Id. Thus, in a municipality of 1000 voting residents, there would be 3000 potential votes for that race. By voting for a candidate, the voter signals they would be satisfied with any of the candidates they have voted for being declared the winner. Under approval voting, then, the candidate who receives the most approval votes is declared the winner of that election. Id.
The first sentence of SDCL 9-13-25 requires the municipal candidate receiving the highest number of "votes" to win the election. The statute clearly contemplates a plurality system of municipal elections whereby the candidate with the highest number of votes, albeit potentially not a majority of the votes cast, wins the election. The question naturally then arises whether the definition of "votes" causes either of the electoral systems put forth by your inquiry to conflict with the language of SDCL 9-13-25.
When interpreting a statute to determine its meaning, "'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, ¶ 15, 636 N.W.2d 675, 681). "When the language in a statute is clear, certain and unambiguous, there is no reason for construction[.]" In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (internal citations omitted). When the intent of the statutory language is unclear, "the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language." Id.
What constitutes a "vote" is not defined in our state code. One generally accepted definition of "vote" is "[t]he expression of one's preference or opinion in a meeting or election by ballot, show of hands, or other type of communication." Vote, Black's Law Dictionary (10th ed. 2014). Another common definition is the "formal expression of opinion or will in response to a proposed decision; [especially] one given as an indication of approval or disapproval of a proposal, motion, or candidate for office[.]" Vote, Merriam-Webster's Collegiate Dictionary (11th ed. 2014).
Upon consideration of the above definitions of the term "vote," I opine that neither ranked choice voting nor approval voting conflicts with the requirement of SDCL 9-13-25 that the candidate with the highest number of votes be declared the winner of the election. Both electoral systems provide the opportunity for individual voters to express their preference or approval regarding the candidates presented through the voting method designated by the particular system. Certainly, the marking of a ballot by ranking the candidates, as done with ranked choice voting, is an expression of the voter's opinion or preference as to those candidates. Likewise, the marking of a ballot indicating all candidates that an individual approves of is clearly an indication of the voter's approval as to those candidates. In reviewing the common and generally accepted definitions of the term "vote," I can find no deficiency with either system, each system allows a voter to express preference or approval of more than one candidate in multi-candidate electoral races.
Turning again to the statutory provisions in SDCL 9-13-25 through 9-13-27.1, I conclude that the remainder of these requirements are clear and unambiguous. In races involving three or more candidates, if a municipality is not satisfied declaring an election winner based on a mere plurality of the votes cast, the municipality may provide for a runoff election. SDCL 9-13-25 & 9-13-26.1. The run-off election must be conducted between those candidates finishing first or second in the initial election. SDCL 9-13-26.1. State law has also established certain notice and timing requirements for the runoff election. SDCL 9-13-27.1.
Considering these statutory requirements, I can only conclude that ranked choice voting conflicts with the requirements of state law. Ranked choice voting carries out instant sequential runoffs among all candidates appearing on the ballot for that race until one candidate is determined to have garnered a majority of the votes cast. This method conflicts with SDCL 9-13-26.1 which requires any runoff in a municipal election to be confined to only those candidates that finished in first or second place on the initial ballot. Further, state law establishes certain notice and timing requirements for the runoff election. SDCL 9-13-27.1. Conducting an instant runoff through ranked choice voting does not comply with those notice and timing requirements and conflicts with the provisions of SDCL 9-13-27.1.
For these reasons I conclude that a home-rule-chartered municipality may not implement ranked choice voting for municipal elections. If public interest is in favor of ranked choice voting in municipal elections, then the Legislature must make changes to the controlling state law.
Unlike ranked choice voting, however, I find no conflict between approval voting and the provisions of SDCL 9-13-25 through 9-13-27.1. Approval voting, as described above, theoretically could lead to plurality results with no majority winner as initially contemplated by SDCL 9-13-25. In such a case, the election would proceed to a runoff election conducted according to the requirements of SDCL 9-13-26.1 & 9-13-27.1. I conclude that an approval voting system, as described above, does not conflict with state law and a home-rule-chartered municipality may implement approval voting for municipal elections.
CONCLUSION
In your response to your inquiry, I find that both ranked choice voting and approval voting present electoral systems that lead to the candidate with the highest number of votes, as cast according to the voting requirements of each system, declared the winner of the election. This is in accord with the provisions of SDCL 9-13-25. Further, I have determined that approval voting, as described in this opinion, does not conflict with state law concerning municipal elections found in SDCL 9-13-25 through 9-13-27.1. A home-rule-chartered municipality may adopt approval voting for its municipal elections. However, it is my opinion that ranked choice voting conflicts with the statutory requirements concerning runoff elections found in SDCL 9-13-26.1 and 9-13-27.1. I conclude that home-rule-chartered municipalities may not adopt ranked choice voting in that it conflicts with state law.
Sincerely,
Charles D. McGuigan
CHIEF DEPUTY ATTORNEY GENERAL
CDM/SRB/dd
Cc: Stacey Kooistra, City Attorney, City of Sioux Falls