If I own three parcels in a South Dakota road district, do I get three votes? And can I vote absentee in road district elections?

Plain-English summary

South Dakota's road districts are landowner-governed taxing entities. Only landowners (private parties, not government entities) vote in district elections. The Custer County State's Attorney asked the AG two questions that come up constantly in administering these districts: does owning multiple parcels give a landowner multiple votes, and which kinds of district elections allow absentee voting?

Question 1: One vote per landowner. SDCL 31-12A-1.2 defines an "eligible voter" by ownership of "land" within the district, not by ownership of specific parcels. The statute explicitly says any firm, partnership, LLC, association, estate, or corporation that holds title to land in the district gets one vote. It also says where more than one person holds an interest in a single lot, tract, or parcel, no more than one vote may be cast for that parcel. Reading the statute together, the AG concluded one vote per landowner, period.

This matches AG Tellinghuisen's earlier opinion AGO 83-17 (which reached the same conclusion on the older statutory language). The Legislature has amended chapter 31-12A since 1983, so not every conclusion from the older opinion still holds, but the one-vote-per-landowner rule survives.

Question 2: Absentee voting depends on election type. SD road districts hold several kinds of elections, and the absentee rule is different for each.

• Formation elections (whether to create the road district). Absentee voting is required. In districts with fewer than 1,000 eligible voters, absentee voting follows SDCL Chapter 12-19; in districts with 1,000 or more, the formation election is conducted under Title 12, which means 46 days of absentee voting under SDCL 12-19-1.2.

• Initial trustee elections in districts with fewer than 1,000 voters. No absentee voting. Statute requires the initial trustees to be nominated and elected "at the same meeting" as the formation election. You can't absentee-vote for candidates who haven't been nominated yet.

• Initial trustee elections in districts with 1,000+ voters. Absentee voting is available, but only for 20 days under SDCL 6-16-5.2, not the standard 46 days. The specific statute controls over the general one.

• Annual trustee elections in any size district. No absentee voting. Annual trustee elections are conducted under SDCL Chapter 8-3 (township law). SDCL 8-3-17.1 requires absentee voting only when nominating petitions are required under SDCL 8-3-1.1. Road district trustee candidates file "certificates of nomination" under SDCL 31-12A-17, not nominating petitions. So absentee voting doesn't kick in.

• Referendum elections on bond issues and special assessments. Yes, with 15-day absentee voting. SDCL 31-12A-23 sends these to SDCL Chapter 9-20, which sends them to SDCL Chapter 9-13, which provides for 15-day absentee voting under SDCL 9-13-21.

The result is a complex multi-statute interlock that's hard to administer without a chart.

What this means for you

For road district landowners and prospective petitioners

If you own ten parcels in the district, you still get one vote. If you and a co-owner share a parcel, the two of you collectively get one vote, and you agree among yourselves who casts it. If your LLC, trust, or corporation owns parcels, that entity gets one vote and you designate an officer or agent. Plan your participation accordingly. For couples who jointly own land, decide in advance who votes; the statute requires the co-owners to "determine among themselves" how the single vote is cast.

For road district trustees and boards

Maintain a voter eligibility list that tracks landowners (not parcels). For corporate/entity voters, require designation in writing under SDCL 31-12A-1.2. For formation elections, plan to provide absentee voting for the right window. For annual trustee elections, plan for in-person-only voting; communicate that clearly to landowners so they don't show up at the wrong time expecting absentee ballots.

For county auditors and election administrators

Build a road district election checklist by election type. The absentee voting periods are 46 days for large-district formation, 20 days for large-district initial trustee, 15 days for bond/assessment referendum, and zero days for small-district initial trustee and any annual trustee election. Smaller-district formation elections follow Chapter 12-19 for absentee. Get the dates right or face challenges.

For states attorneys advising road districts

Use this opinion as a reference when boards ask about voting procedures. The one-vote-per-landowner rule is straightforward; the absentee voting rule is the source of most administrative confusion.

For rural subdivision residents

Your road district's elections are governed by these rules. If you've moved into a new subdivision and joined a road district, expect annual trustee elections at meetings, with no absentee option. Plan to attend if you want a vote. For formation elections (when a new district is being considered) and bond referendums, you'll have absentee options.

For lawyers handling road district challenges

A road district trustee election conducted with absentee voting where the law doesn't permit it could be subject to challenge. Likewise, a formation election conducted without proper absentee periods could be challenged. The procedural details matter because the AG opinion lays them out specifically.

Common questions

Q: I own three lots in the road district. Why don't I get three votes?
A: Because the statute defines voter eligibility by ownership of "land," singular, in the district, not by parcel count. The Legislature could have said one vote per parcel; it chose to say one vote per landowner.

Q: My wife and I own a parcel together. Do we each vote?
A: No. SDCL 31-12A-1.2 says where multiple people hold interest in one parcel, only one vote is cast. The two of you decide which one of you votes (or you can authorize each other in writing).

Q: Our family LLC owns several parcels. How does the LLC vote?
A: The LLC gets one vote, exercised by an officer or agent designated in writing to the election officials under SDCL 31-12A-1.2.

Q: What if I'm out of state when the annual trustee election happens?
A: Annual trustee elections don't have absentee voting. You can give a proxy to another landowner if statute or district bylaws allow, but proxies are not absentee ballots. The AG opinion doesn't address proxy voting; check the district's own bylaws.

Q: Why don't annual trustee elections have absentee voting?
A: The annual elections are conducted under SDCL Chapter 8-3 (township law), which only requires absentee voting where SDCL 8-3-17.1 applies, and that statute is keyed to whether nominating petitions are required. Road district trustees don't use nominating petitions, so the absentee trigger doesn't fire.

Q: What's a referendum election in a road district?
A: Five percent of eligible voters can petition the board to refer a special assessment or bond issue to a vote. That's the road district referendum process under SDCL 31-12A-23. It uses 15-day absentee voting under SDCL 9-13-21.

Q: Why is the absentee voting period 15 days for a referendum, 20 days for a large-district initial trustee election, 46 days for a formation election, and 0 days for an annual trustee election?
A: Different statutes apply to each election type, and they specify different windows. The 46-day window is the Title 12 default. SDCL 6-16-5.2 specifies 20 days for the large-district initial trustee election. SDCL 9-13-21 specifies 15 days for the referendum (via the chain SDCL 31-12A-23 → SDCL 9-20-14 → SDCL 9-13). Annual trustee elections have no absentee voting at all because Chapter 8-3 doesn't trigger it. The AG opinion harmonizes the conflicts using the specific-controls-general rule.

Q: Was this question previously addressed?
A: Yes, AG Tellinghuisen's 1983 opinion (AGO 83-17) reached the same one-vote-per-landowner conclusion on similar statutory text. Some other conclusions in that older opinion may no longer be valid because chapter 31-12A has been amended.

Q: What's the difference between an "eligible voter" and a "landowner" in this context?
A: SDCL 31-12A-1.2 defines a "landowner" as any owner of land in the district except government entities. An "eligible voter" is essentially the same: landowners who can vote in district elections, whether the voter resides in the district or not. Government entities own land but cannot vote, which preserves the landowner-controlled character of the district.

Background and statutory framework

South Dakota road districts under SDCL Chapter 31-12A are a hybrid governance entity: they're political subdivisions with taxing authority, but they're governed by landowners (not by general elections of all residents). The landowner-control model is the defining feature, and the one-vote-per-landowner rule is one of the structural mechanics that makes the model coherent.

The absentee voting framework reflects layered legislative choices about which elections deserve full participation accommodations. Formation elections, which determine whether a new taxing entity is created, get the most generous absentee window. Bond referendums, which authorize specific financial obligations, get a substantial window. Initial trustee elections in large districts get a shorter window. Initial trustee elections in small districts (where everyone is supposed to be at the founding meeting) and annual trustee elections (where the operational ongoing governance is in landowner hands) get no absentee option.

The opinion's analytical work is mostly statutory navigation. The Legislature wrote the absentee voting requirements piecemeal across multiple chapters: Title 12 generally, Chapter 6-16 for special district formation, Chapter 8-3 for annual township-style elections, Chapter 9-13 and 9-20 for municipal-style referendum elections. The AG opinion's contribution is to thread the eye of the needle and produce a per-election-type answer that election administrators can actually use.

The 1983 AG opinion AGO 83-17 reached the same one-vote conclusion on the same fundamental question. Forty years of amendments to chapter 31-12A have left that core rule intact even as other provisions have been added or changed.

Citations and references

Statutes:
- SDCL Chapter 31-12A (road districts)
- SDCL 31-12A-1.2 (eligible voter, landowner)
- SDCL 31-12A-15 (annual trustee election under Chapter 8-3)
- SDCL 31-12A-17 (trustee nominations)
- SDCL 31-12A-23 (bond/assessment referendum)
- SDCL Chapter 6-16 (special district formation elections)
- SDCL Chapter 8-3 (township elections)
- SDCL Chapter 9-13, 9-20 (municipal elections and referendums)
- SDCL Chapter 12-19 (absentee voting)

Cases and prior AG opinions:
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463
- Goetz v. State, 2001 S.D. 138, 636 N.W.2d 675
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42, 932 N.W.2d 135
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
- Ibrahim v. Dep't of Pub. Safety, 2021 S.D. 17, 956 N.W.2d 799
- Argus Leader Media v. Hogstad, 2017 S.D. 57, 902 N.W.2d 778
- Jans v. Dep't of Pub. Safety, 2021 S.D. 51, 964 N.W.2d 749
- AGO 83-17 (Tellinghuisen, road district landowner voting)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1761
• Original PDF: https://atg.sd.gov/OfficialOpinions/AG%20Opinion%2023.03.pdf

Original opinion text

OFFICIAL OPINION No. 23-03

Re: Official Opinion Concerning Voting in Road District Elections

Dear State's Attorney Kelley,

In your capacity as the State's Attorney for Custer County you have requested an official opinion from the Attorney General's Office on the following questions:

QUESTIONS:

1.) If a landowner owns more than one lot, tract, or parcel of land within a road district, is that landowner entitled to only one vote in road district elections?

2.) Is absentee voting allowed in road district elections?

ANSWERS:

1.) An owner of land within a road district is entitled to only one vote in road district elections regardless of the number of parcels of land owned within the district.

2.) Absentee voting is available in road district formation elections, initial board of trustee elections in road districts with more than one thousand eligible voters, and in road district referendum elections. Absentee voting is not available in initial board of trustee elections in road districts with less than one thousand eligible voters, and in annual trustee elections in road districts of any size.

FACTS:

In your role as Custer County State's Attorney, you are asked to provide guidance to road districts concerning their statutory requirements and the operations and procedures derived therefrom. Questions have arisen concerning the interpretation of SDCL § 31-12A-1.2 and whether a landowner who owns multiple lots, or parcels of land, within a road district is entitled to only one vote at road district elections. Questions have also been asked concerning the ability to vote absentee in road district elections.

IN RE QUESTION 1:

State law authorizes the formation of county road districts, in any area outside the boundary of a municipality, for the purposes of constructing and maintaining roads within the district. SDCL § 31-12A-1. A proposed road district must be approved by a majority vote of the eligible voters within the district. SDCL §§ 31-12A-6 & -10. Each road district is managed by a board of trustees. SDCL §§ 31-12A-1.1, 31-12A-21 & -22. A road district with more than three landowners is required to hold an annual election to select the members of its board of trustees. SDCL §§ 31-12A-1.1, 31-12A-15.

Some landowners own more than one lot, or parcel of land, within a road district. You have asked whether those landowners are limited to only one vote in road district elections?

The eligible voters of a road district are defined in SDCL § 31-12A-1.2. The statute reads in part:

As used in this chapter, the term, eligible voter, has the meaning specified in this section. Only persons or public corporations that are landowners of land located within the proposed or existing road district are eligible to vote in the formation election or any subsequent election of a road district, except as provided in this chapter. An eligible voter may reside within or outside the district. Any firm, partnership, limited liability company, association, estate, or corporation that holds title to land located within the proposed or existing road district is entitled to one vote and may designate an officer or agent to vote on its behalf by presenting a written instrument to that effect to the election officials. The vote of any eligible voter who is a minor or a protected person as defined by § 29A-5-102, may be cast by the parent, conservator, or legal representative of the minor or protected person. However, if more than one person holds an interest in a lot, tract, or parcel of land, no more than one vote may be cast in any election with respect to any one lot, tract, or parcel of land, as the owners may among themselves determine.

SDCL § 31-12A-1.2. Landowner is also defined as "any owner of land other than a governmental entity, as evidenced by records in the offices of the register of deeds and the clerk of courts in the county containing a proposed or existing road district." Id.

When interpreting a statute to determine its meaning, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Comm'n, 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. . . . 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 (citations omitted).

The plain language of SDCL § 31-12A-1.2 clearly defines the eligible voters of a road district to be those who own land within the district (except government entities). In crafting this definition, the Legislature chose to use the more general term "land" rather than define voter eligibility in relation to ownership of specific parcels of land. SDCL § 31-12A-1.2. The statute contains no language tying the number of votes a voter may cast in a road district election to the specific number of parcels the voter owns within the district. If the Legislature intended that an owner of multiple parcels of land in a road district was to receive multiple votes in district elections, it could have defined eligible voters in that way. I must "assume that statutes mean what they say and that legislators have said what they meant." Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42, ¶ 14, 932 N.W.2d 135, 140 (cleaned up).

I conclude, based upon the language used in SDCL § 31-12A-1.2, that the Legislature intended to give one vote in road district elections to each landowner that owns land in the district regardless of the number of parcels or lots owned by that landowner within the district.

The above conclusion is supported by the remaining language found in SDCL § 31-12A-1.2. The statute's language limits any corporation or partnership that owns a parcel of land within a road district to one vote in district elections. SDCL § 31-12A-1.2. Similarly, the statute limits multiple individuals who collectively own a parcel of land to one vote in district elections. Id. These provisions evince legislative intent that only one vote is to be cast in a road district election by an eligible voter of the district.

Attorney General Tellinghuisen previously reached the same conclusion when reviewing SDCL § 31-12A-6. AGO 83-17. The Legislature has, in the interim, amended SDCL Ch. 31-12A, and consequently some of the conclusions reached in the prior opinion may no longer be valid. I believe, however, that Attorney General Tellinghuisen's conclusion as to this issue remains accurate.

It is my opinion that an owner of land within a road district is entitled to only one vote in road district elections regardless of the number of lots or parcels of land owned within the district.

IN RE QUESTION 2:

You have also asked whether absentee voting is available in road district elections?

A road district's formation election is to be carried out according to the provisions of SDCL §§ 6-16-4 to 6-16-6. SDCL § 31-12A-6. These statutes establish the general requirements for the formation elections and initial trustee elections held in special local government districts. SDCL Ch. 6-16.

As noted above, the language of a statute is the paramount consideration when interpreting the statute. Olson, 2019 S.D. 13, ¶ 5 (quoting Goetz, 2001 S.D. 138, ¶ 15). When the language used in a statute is unambiguous there is no need for further construction. Wintersteen Revocable Trust, 2018 S.D. 12, ¶ 12 (citations omitted). The intent of a statute "must be determined from the statute as a whole, as well as enactments relating to the same subject." In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 807 (citations omitted).

In the formation election of a road district with less than one thousand eligible voters, "[a]bsentee voting is allowed pursuant to chapter 12-19 for the election on the question of formation of the special district or any other question to be voted on by the eligible voters of the district." SDCL § 6-16-6. In those road districts with more than one thousand eligible voters, State law similarly requires the formation election to "be conducted pursuant to Title 12." SDCL § 6-16-5.1. SDCL § 12-1-2 provides that "[t]he provisions of [Title 12] apply to township, municipal, school, and other subdivision elections unless otherwise provided by statutes specifically governing their elections or this title." Absentee voting is required by SDCL § 12-19-1.2 to begin "neither earlier nor later than forty-six days prior to the election[.]" The plain language of these statutes leads me to conclude that forty-six days of absentee voting is to be provided to voters in road district formation elections.

In those road districts with less than one thousand eligible voters, SDCL § 6-16-5 states that "[i]f a majority ... of the votes cast on the question of formation is in favor, an election shall be conducted by those present at the same meeting to elect the initial board of ... trustees." (emphasis added). SDCL § 31-12A-17 also requires that "[i]f the initial trustees are elected at the meeting at which the incorporation election is held as provided in § 6-16-5, the trustees shall be nominated by the eligible voters in attendance at the meeting." (emphasis added). The language used in these two statutes evinces legislative intent that nominations for the initial board of trustees in road districts with less than one thousand eligible voters occur at the meeting where the formation election is held.

SDCL § 6-16-6, referenced above, indicates that in a road district with less than one thousand eligible voters absentee voting is to be available for the formation election and "any other question to be voted on by the eligible voters[.]" However, I interpret "any other question to be voted on" to mean something other than voting on the initial board of trustees. The language of both SDCL § 6-16-5 and SDCL § 31-12A-17 is clear and unambiguous and must be given full effect. I cannot construe the "any other question" language of SDCL § 6-16-6 to authorize absentee voting for the initial board of trustees in road districts with less than one thousand voters. To do so would be to render the operative language of SDCL §§ 6-16-5 and 31-12A-17 to be surplusage. Ibrahim v. Dep't of Pub. Safety, 2021 S.D. 17, ¶ 13, 956 N.W.2d 799, 803 (presumption that the Legislature does not insert surplusage into its enactments and statutes must not be construed to render parts surplusage). To interpret SDCL § 6-16-6 as authorizing absentee voting for the initial board of trustees also works an illogical or unreasonable result. As SDCL §§ 6-16-5 and 31-12A-17 establish, the candidates for the initial board of trustees are not nominated until the meeting held to vote on the question of formation of the district. It would be impossible to absentee vote for candidates that have not yet been nominated. Interpreting SDCL §§ 6-16-5, 6-16-6, and 31-12A-17 together to provide for absentee voting renders an illogical or unreasonable result. Ibrahim, 2021 S.D. 17, ¶ 13 (statutes are construed so as not to arrive at an illogical conclusion); Argus Leader Media v. Hogstad, 2017 S.D. 57, ¶ 9, 902 N.W.2d 778, 782 (presumption that the Legislature did not intend an absurd or unreasonable result).

Based on the above analysis, it is my opinion that SDCL §§ 6-16-5 and 31-12A-17 prevent absentee voting for the initial trustees elected in road districts with less than one thousand eligible voters.

Elections for the initial trustees in road districts with more than one thousand eligible voters are controlled by SDCL §§ 31-12A-17 and 6-16-5.2. SDCL § 31-12A-17 states that any trustee to be initially elected at a meeting other than the formation meeting is to be nominated as directed in SDCL § 6-16-5.2. There it is established that initial trustee elections are conducted "pursuant to Title 12[.]" SDCL § 6-16-5.2. As described above, absentee voting under SDCL Ch. 12-19 is forty-six days long. SDCL § 12-19-1.2. SDCL § 6-16-5.2, however, requires nominating petitions to be filed thirty days before the election, and absentee ballots to be made available twenty days before the election. Facially, SDCL § 6-16-5.2 and SDCL § 12-19-1.2 appear to conflict.

SDCL § 12-1-2 generally provides that the election provisions of SDCL Title 12 apply to road district elections unless otherwise provided by statutes specific to such districts. Through the promulgation of SDCL § 12-1-2 the Legislature clearly expressed its intent to yield the general provisions of SDCL Title 12, including SDCL § 12-19-1.2, to those statutes specifically governing local elections. According to SDCL § 12-1-2, the requirements of SDCL § 6-16-5.2 (being specific to special district elections) control the length of absentee voting in these road districts. The remainder of SDCL Title 12, unless otherwise specified in State law, would govern the manner of conducting absentee voting and the manner of conducting the trustee elections in road districts with more than one thousand eligible voters. This interpretation of the statutes harmonizes the language used to avoid construing the statutes in a manner that would render any part of the statutes to be surplusage. Ibrahim, 2021 S.D. 17, ¶ 13. This construction of the statutes also complies with the well-recognized rule that "statutes of specific application take precedence over statutes of general application." Jans v. Dep't of Pub. Safety, 2021 S.D. 51, ¶ 18, 964 N.W.2d 749, 755 (cleaned up).

I conclude that absentee ballots must be made available twenty days before the initial election of trustees in road districts with more than one thousand eligible voters.

The annual election of road district trustees in any size district is to "be conducted according to chapter 8-3." SDCL § 31-12A-15. SDCL Ch. 8-3 governs the meetings and elections of townships. SDCL § 8-3-17.1 states that "if nominating petitions are required pursuant to § 8-3-1.1 then any voter ... may vote by absentee ballot as prescribed in chapter 12-19." The statute is specific in that it requires absentee voting only "if nominating petitions are required pursuant to § 8-3-1.1." SDCL § 8-3-17.1. Individuals seeking to be elected road district trustees at an annual election must file a certificate of nomination according to SDCL § 31-12A-17. Road district candidates do not file nominating petitions pursuant to SDCL § 8-3-1.1. Because of this, it is my opinion that the absentee voting provision found in SDCL § 8-3-17.1 is not applicable to annual road district trustee elections.

While SDCL § 12-1-2 generally provides that the election provisions of SDCL Title 12 apply, the Legislature has otherwise directed that road district annual elections proceed under the specific requirements of SDCL Ch. 8-3. Other than SDCL § 8-3-17.1, no provision in SDCL Ch. 8-3 directs that elections governed by that chapter must comply with the election provisions of either SDCL Title 12 or SDCL Ch. 12-19. The specific provisions of SDCL § 8-3-17.1 control absentee voting in road district trustee annual elections.

Because candidates for annual election to road district trustee do not file petitions pursuant to SDCL § 8-3-1.1, I conclude absentee voting is not available in those elections.

Finally, the ability to vote absentee in road district referendum elections must be reviewed. "Five percent of the eligible voters of the district may petition the board of trustees for referendum of any special assessment or bond issue. ... The referendum shall be governed, to the extent applicable, by chapter 9-20." SDCL § 31-12A-23. SDCL Ch. 9-20 is the section of State law governing municipal initiatives and referendums. SDCL § 9-20-14 provides that elections carried out under that chapter "shall be governed by the provisions of chapter 9-13 except as to the form of the ballots otherwise specifically provided." SDCL Ch. 9-13 governs municipal elections, and there SDCL § 9-13-21 provides that "ballots ... shall be available for absentee voting no later than fifteen days prior to election day. ... Absentee voting shall be conducted pursuant to chapter 12-19."

Similar to my analysis concerning the initial trustee elections in road districts with more than one thousand voters, SDCL § 12-1-2 allows the more specific provisions of SDCL § 9-13-21 to control absentee voting in road district referendum elections. See also Jans, 2021 S.D. 51, ¶ 18. It is my opinion that fifteen days of absentee voting is to be provided to eligible voters in road district referendum elections.

CONCLUSION

I conclude that an owner of land within a road district is entitled to only one vote in road district elections regardless of the number of parcels of land owned within the district. I also conclude that absentee voting is not available in every type of road district election. Absentee voting is available in road district formation elections, initial board of trustee elections in road districts with more than one thousand eligible voters, and in road district referendum elections. Absentee voting is not available in initial board of trustee elections in road districts with less than one thousand eligible voters, and in annual trustee elections in road districts of any size.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL