In a South Dakota road district, if I own three parcels of land in the district, do I get three votes? And can I vote absentee in road district elections?

Plain-English summary

Custer County State's Attorney Kelley asked the AG two practical questions about how road district elections actually work:

1. If a landowner owns multiple lots in a road district, do they get multiple votes?
2. Is absentee voting available in road district elections?

On multiple votes: No. SDCL 31-12A-1.2 defines an "eligible voter" as a landowner of land in the district. It uses the singular term "land" rather than tying votes to individual parcels. The statute also caps corporations, partnerships, and multiple co-owners of a single parcel to one vote each, which the AG reads as evidence the legislature wanted one vote per landowner across the board. This tracks the earlier ruling in AGO 83-17 by AG Tellinghuisen. One landowner = one vote, regardless of how many parcels they own.

On absentee voting: It depends on the election type and the district size. The AG worked through four scenarios:

1. Formation elections: Absentee voting is available, 46 days under SDCL 12-19-1.2.
2. Initial trustee elections in small districts (under 1,000 voters): No absentee voting. Trustees are nominated and elected at the same meeting where the formation vote occurs, so absentee voting is logistically impossible (you can't vote for someone not yet nominated).
3. Initial trustee elections in large districts (over 1,000 voters): Absentee voting available, 20 days under SDCL 6-16-5.2.
4. Annual trustee elections (any size district): No absentee voting. The annual elections are conducted under SDCL 8-3 (township law), which only authorizes absentee voting when nominating petitions are filed under SDCL 8-3-1.1. Road district trustee candidates file a different nominating procedure under SDCL 31-12A-17, so the absentee-voting trigger does not apply.
5. Referendum elections: Absentee voting available, 15 days under SDCL 9-13-21.

The opinion is dense statutory work threading several chapters of South Dakota law (chapters 6-16, 8-3, 9-13, 9-20, 12, 12-19, and 31-12A). The result is a clear operational map for whoever administers road district elections.

What this means for you

If you own land in a South Dakota road district

You have one vote. If you own ten parcels in the district, you still have one vote. If you and your spouse co-own a parcel, the two of you have one vote total. The road district's election officials should not be issuing multiple ballots based on parcel count.

When you can vote absentee:

• Formation election (whether the district is created): Yes, absentee voting opens 46 days before the election.
• Initial trustee election in a small district: No. You will need to attend the meeting in person.
• Initial trustee election in a large district: Yes, absentee voting opens 20 days before the election.
• Annual trustee election (any size district): No. You need to vote in person.
• Referendum (on special assessment or bond issue): Yes, absentee voting opens 15 days before the election.

If you are a road district administrator running elections

Use the opinion as your operational reference:

• Provide one ballot per landowner, not per parcel.
• For corporations, partnerships, LLCs, and other entities: require a written designation of the officer or agent voting on the entity's behalf (SDCL 31-12A-1.2). Keep that documentation in the election records.
• For multiple co-owners of a parcel: require the owners to decide among themselves who casts the one vote, and document the decision.
• For absentee ballot availability, follow the type-specific schedules listed above.
• For annual trustee elections and small-district initial trustee elections, plan for in-person-only voting. Communicate this clearly to landowners in advance.

If you are a state's attorney advising road districts

The opinion lays out the framework clearly enough that your job is largely procedural: confirm the road district's election plan matches the opinion's table of when absentee voting applies. Documentation is the main risk: a landowner's claim to multiple votes based on parcels, an entity's failure to designate an agent, or an absentee voter in an election where absentee is not permitted.

The opinion's specific approval of AGO 83-17 (AG Tellinghuisen) is useful. Both opinions reach the same one-vote-per-landowner conclusion, despite intervening amendments to SDCL chapter 31-12A. That continuity of interpretation strengthens the rule.

If you are organizing a road district petition or referendum

When the formation election happens, expect absentee voting to be available. Build the campaign timeline around the 46-day absentee window. If the district will end up over 1,000 eligible voters, plan for absentee voting in the initial trustee election as well; under that threshold, plan for in-person-only initial trustee voting at the formation meeting.

For a referendum on a special assessment or bond issue, absentee voting opens 15 days before. That is a shorter window than formation elections, so plan outreach accordingly.

If you are a member of a road district board of trustees

The opinion confirms the annual trustee elections are in-person-only. Communicate that to landowners well before each annual meeting; absent that, you may get last-minute requests for absentee ballots that you have to deny. The legal posture is firm under the opinion, but the customer-service posture benefits from advance notice.

If you are pushing for special district election reform

The opinion identifies asymmetries the legislature could address:

• Different absentee rules for small vs. large districts in initial trustee elections.
• No absentee voting at all in annual trustee elections, despite absentee being standard in most South Dakota elections.
• Different absentee windows (46 days vs. 20 days vs. 15 days) depending on election type.

A legislative cleanup could harmonize these rules. The opinion is the map of what would need to change.

Common questions

Q: I am a corporation that owns land in the district. How do we vote?
A: SDCL 31-12A-1.2 says the corporation gets one vote, cast by an officer or agent designated in writing presented to election officials. Your corporate board (or whoever has authority under your bylaws) should designate the voting officer, document it, and present that designation at the election.

Q: My LLC owns three parcels in the district. Do we get three votes?
A: No. SDCL 31-12A-1.2 explicitly says "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." Your LLC gets one vote, regardless of how many parcels it owns.

Q: I'm a minor whose name is on the deed. Can my parent vote on my behalf?
A: Yes. SDCL 31-12A-1.2 provides that "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."

Q: Two siblings co-own a parcel in the district. Can we both vote?
A: No. SDCL 31-12A-1.2: "[I]f 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." You and your sibling get one vote between you and must decide who casts it.

Q: What if my road district has exactly 1,000 voters?
A: SDCL 6-16-5 applies to districts "with less than one thousand eligible voters"; SDCL 6-16-5.1 and 6-16-5.2 apply to those with more. A district with exactly 1,000 voters appears to fall into the larger-district framework (over 1,000 is the threshold for the smaller-district rule). Verify with your state's attorney for borderline cases.

Q: When is the annual trustee election?
A: SDCL 31-12A-15 directs annual trustee elections to be conducted according to SDCL chapter 8-3 (township law). Township annual meetings are typically held in March or April, but check chapter 8-3 for the exact statutory schedule applicable to your district.

Q: Why is absentee voting available in initial trustee elections in big districts but not small ones?
A: Mechanics. In small districts, the legislature directed that trustees be "nominated by the eligible voters in attendance at the meeting" (SDCL 31-12A-17), at the same meeting where the formation vote happens. There is no way to absentee-vote for someone who has not yet been nominated. In large districts, candidates file nominating petitions 30 days before, so the names are known in advance and absentee voting is logistically possible.

Q: Where does the 1,000 voter threshold come from?
A: SDCL chapter 6-16 distinguishes special district elections by size. Different election procedures apply at the over/under 1,000 voter line. The threshold was a legislative choice to balance simplicity (small districts can do everything at one meeting) with practical access (large districts need the standard machinery).

Background and statutory framework

Road district election rules pull from at least three chapters of South Dakota law:

• SDCL chapter 31-12A (road districts proper) sets eligibility and references other chapters for procedural details.
• SDCL chapter 6-16 (special district formation) controls formation elections.
• SDCL chapter 8-3 (township) controls annual trustee elections.

Plus Title 12 (general election law), chapter 12-19 (absentee voting), chapter 9-13 (municipal elections), and chapter 9-20 (municipal referendums) supply background rules.

The opinion's analytical achievement is harmonizing these chapters without rendering any of them surplusage (citing Ibrahim and Argus Leader Media v. Hogstad). The specific-controls-general rule from Jans v. Dep't of Pub. Safety lets the AG let SDCL 6-16-5.2's 20-day absentee window govern initial large-district trustee elections instead of Title 12's default 46-day window.

The one-vote-per-landowner rule rests on careful reading of SDCL 31-12A-1.2. The statute could have written "one vote per parcel" (some special district statutes in other states do) but it did not. The legislature's structural choices — one vote for entities, one vote for groups of co-owners — point in the same direction. Continuity with AGO 83-17 makes the rule sturdier still.

The annual-trustee-election no-absentee rule is the part most likely to surprise modern voters. South Dakota generally allows absentee voting in elections; chapter 8-3 (township) is an outlier in conditioning absentee availability on petition-style nominations. Because road district annual elections borrow from chapter 8-3 but use a different nomination mechanism (SDCL 31-12A-17 certificates of nomination, not 8-3-1.1 petitions), absentee voting is statutorily not available. The legislature could amend.

Citations and references

Statutes:
- SDCL 31-12A-1.2 (eligible voter definition)
- SDCL 31-12A-1, -1.1, -6, -10, -15, -17, -21, -22, -23 (road districts)
- SDCL 6-16-4 through 6-16-6, 6-16-5.1, 6-16-5.2 (special district elections)
- SDCL 8-3-1.1, 8-3-17.1 (township nominating petitions and absentee)
- SDCL 9-13-21 (municipal absentee)
- SDCL 9-20-14 (municipal referendum)
- SDCL 12-1-2, 12-19-1.2 (Title 12 applicability and absentee window)

Prior AG opinion:
- AGO 83-17 (AG Tellinghuisen, one-vote-per-landowner)

Cases on statutory interpretation:
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
- Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42, 932 N.W.2d 135
- Jans v. Dep't of Pub. Safety, 2021 S.D. 51, 964 N.W.2d 749 (specific controls general)
- Ibrahim v. Dep't of Pub. Safety, 2021 S.D. 17, 956 N.W.2d 799 (no surplusage)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• 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. 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.

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.

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

MJJ/SRB/dd