Clay County petitioners ran short of valid signatures to put a county commissioner size change on the ballot before the deadline. Could later signatures carry over to the next primary? Could circulators be paid? Did unsigned-by-circulator petitions count? And when could a signer take their name off the petition?

Plain-English summary

In early 1989, the Clay County State's Attorney brought AG Roger Tellinghuisen a tangled petition story. Clay County residents had wanted to grow the county commission from three members to five. They had collected what they believed were enough signatures (the SDCL 7-8-3 threshold was 15 percent of registered voters measured against the last general election) and had filed the petition with the Board in April 1988. Then deduplication knocked the count below the threshold. The petition missed its statutory window for submission to the voters at the next primary (June 7, 1988). After the primary, organizers kept gathering signatures and eventually exceeded the 15 percent figure. Now they wanted to use the petition for the 1990 primary. The State's Attorney asked five questions.

AG Tellinghuisen worked through each.

On questions 1 and 2, about carry-over of signatures: the original April 1988 signatures were no longer valid for any purpose because the petition they attached to had become a nullity when it failed to qualify for the June 1988 primary. But the post-primary signatures were not lost. Those signatures attached to a new petition effort for the next primary (1990). They could carry over, with the caveat that the 15 percent threshold had to be recalculated against the registered voters at the most recent general election. A new general election had occurred in November 1988, between the failed June primary and the AG opinion, so the threshold number itself was likely different.

On question 3, about paid circulators: the U.S. Supreme Court had recently decided Meyer v. Grant, 108 S.Ct. 1886 (1988), holding that a Colorado statute prohibiting payment of petition circulators imposed an unjustified burden on political expression. South Dakota's parallel statute was SDCL 2-1-13. AG Opinion 88-50 had already concluded that SDCL 2-1-13 was effectively invalidated by Meyer. The 89-01 opinion confirmed this: paid circulators were permitted.

On question 4, about circulator affidavits: SDCL 7-18A-12 (with the parallel SDCL 2-1-10 for state-level petitions) required each person who circulated a petition to attach a sworn affidavit before filing. Corbly v. City of Colton, 278 N.W.2d 459 (S.D. 1979) had held that failure to attach a sworn affidavit invalidated the signatures on the petition. So a petition page without the circulator's affidavit could not count, even if the signatures on it were otherwise valid.

On question 5, about signer withdrawal: no statute directly addressed this. The South Dakota Supreme Court had said in Healey v. Rank, 140 N.W.2d 850 (S.D. 1966), that signers could withdraw their names if they acted in a timely manner. Other jurisdictions (Knowlton v. Hezmalhalch from California; Jefferson Highway Transp. Co. v. St. Cloud from Minnesota; ALR annotation) had set the timeliness line at the moment of submission to the authorized body. Drawing on those, the AG concluded that a Clay County signer could withdraw before the petition was submitted to the Board of County Commissioners, but not afterward.

Currency note

This opinion was issued in 1989. 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 has amended the petition statutes (including SDCL 2-1-13 and county petition mechanics) multiple times since 1989, and additional Supreme Court decisions on the constitutional limits of petition regulation have developed since Meyer v. Grant.

What the opinion meant at the time

For petition organizers running into Clay County's exact predicament (deduplication killing a signature count just before a deadline), the opinion meant the work was not entirely wasted. Signatures collected after the missed deadline attached to a fresh petition effort and could be used for the next primary, subject to the recalculated threshold.

For circulator workflows, the opinion freed petitioners to pay circulators (typical practice in larger states had already been to pay; Meyer v. Grant made it constitutionally protected expression). The mid-1989 timing was important because South Dakota's no-pay statute remained technically on the books even though it could no longer be enforced.

For petition validity disputes, the opinion confirmed the procedural rule that the circulator's affidavit was a make-or-break element. Without it, the signatures gathered by that circulator were a nullity. Corbly had said so a decade earlier, and the AG was confirming the same answer in the county petition context.

For signers who later regretted joining a petition, the opinion drew a clear line: withdraw before submission to the Board, or live with the signature.

For county auditors and Boards of County Commissioners reviewing petitions, the opinion gave a coherent framework: check the affidavit on each sheet, count only signatures attached to properly attested sheets, allow withdrawal requests received before submission, and recognize that an expired petition cannot be revived; a new effort begins fresh against the latest general election baseline.

For county states attorneys advising clients on the mechanics of these citizen petitions, the opinion was a one-stop reference covering five common questions.

Common questions

Q: Why did the original April 1988 signatures lose all value?
A: The opinion treated the petition itself as having become a nullity when it failed to qualify for the June 1988 primary. The signatures attached to that petition; once the petition was dead, the signatures could not be revived for a different petition.

Q: Could organizers ask original signers to re-sign for the new petition?
A: Yes, in practice. The opinion did not bar re-collection; it just said the existing signatures could not be reused without a new signing event.

Q: How did the 15 percent threshold recalculate?
A: SDCL 7-8-3 set the threshold against "the total number of registered voters at the last preceding general election." Between April 1988 and the 1990 primary, the November 1988 general election had occurred. The threshold for the post-1988 petition effort was therefore measured against November 1988 registration, not the earlier figure.

Q: What if the November 1988 general election had increased registration significantly?
A: The threshold count went up accordingly. The opinion did not address whether that adjustment might push the post-primary signature count back below the threshold, but mathematically it could.

Q: Was Meyer v. Grant binding on South Dakota law?
A: The U.S. Supreme Court's First Amendment ruling applied to all state statutes that imposed similar restrictions on paid circulation. SDCL 2-1-13's prohibition fell within that category. The AG had already taken this position in Opinion 88-50; Opinion 89-01 confirmed the result.

Q: If a circulator forgot to sign the affidavit, could it be added later?
A: The opinion did not specifically address late-added affidavits, but Corbly had described the affidavit as a precondition to filing. A post-filing addition would face a real risk of being treated as untimely.

Q: When did the withdrawal-cutoff clock start?
A: The opinion described it as ending when the petition was submitted to the authorized body (here, the Board of County Commissioners). It did not require waiting until the Board acted; the act of submission itself closed the withdrawal window.

Background and statutory framework

South Dakota's county commission can have three or five members. SDCL 7-8-3 governs changes between the two configurations: 15 percent of registered voters can petition for an increase or decrease, and the Board must put the question on the ballot at the next primary election. The registered-voter baseline is the most recent general election.

Petition mechanics generally are governed by SDCL chapter 2-1 (statewide) and SDCL chapter 7-18A (counties). Two key procedural rules cross both chapters: the circulator-affidavit requirement (SDCL 2-1-10 for statewide, SDCL 7-18A-12 for counties) and, historically, a prohibition on paid circulators (SDCL 2-1-13). The affidavit had to be filed before the petition was submitted, had to be signed under oath, and had to attest that the circulator and each signer were qualified voters.

The paid-circulator question changed dramatically in 1988. The U.S. Supreme Court decided Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, holding that Colorado's prohibition on paid circulators imposed an unjustified First Amendment burden on political expression. The decision was a square strike at state statutes like SDCL 2-1-13. AG Opinion 88-50 had concluded shortly afterward that SDCL 2-1-13 was effectively invalidated, and Opinion 89-01 followed that prior reading.

The affidavit-validity question was addressed by Corbly v. City of Colton, 278 N.W.2d 459, 462 (S.D. 1979). The South Dakota Supreme Court had held that a petition without the circulator's sworn affidavit could not have its signatures counted. The rule was strict; the affidavit was not a nicety but a substantive precondition.

The withdrawal-of-signature question had less direct South Dakota authority. Healey v. Rank, 140 N.W.2d 850 (S.D. 1966), recognized a right to withdraw if done timely. Other jurisdictions had been more specific about when "timely" ran out. Knowlton v. Hezmalhalch, 89 P.2d 1109 (Cal. 1939), and the Jefferson Highway Transp. Co. line of Minnesota cases set the cutoff at submission to the authorized body. The AG read these together to find the same line in South Dakota.

The nullity-after-deadline conclusion on the original 1988 signatures rested on the statutory architecture. SDCL 7-8-3 required submission "at the next primary election" after the petition. When the petition failed the threshold for that primary, it could no longer satisfy the statute's submission requirement. The petition itself ceased to exist as a viable instrument, and the signatures attached to it lost their function. New signatures gathered after that point attached to a new petition for the next primary.

Citations and references

Statutes:
- SDCL § 7-8-3 (county commissioner number change)
- SDCL § 2-1-10 (state petition circulator affidavit)
- SDCL § 2-1-13 (paid circulator prohibition; effectively invalidated)
- SDCL § 7-18A-12 (county petition circulator affidavit)

Cases:
- Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886 (1988)
- Corbly v. City of Colton, 278 N.W.2d 459 (S.D. 1979)
- Healey v. Rank, 82 S.D. 54, 140 N.W.2d 850 (1966)
- Knowlton v. Hezmalhalch, 89 P.2d 1109 (Cal. 1939)
- Jefferson Highway Transp. Co. v. St. Cloud, 155 Minn. 463, 193 N.W. 960 (1923)

Other authority:
- Annot., 27 A.L.R.2d 604 (1953) (signer withdrawal)

Earlier AG opinions referenced:
- AGO 88-50 (paid circulator prohibition invalidated by Meyer)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2089-01.pdf

Original opinion text

January 3, 1989

Craig Thompson
Clay County State's Attorney
P.O. Box 295
Vermillion, SD 57069

OFFICIAL OPINION NO. 89-01
Requirements for petitions to change the number of county commissioners

Dear Mr. Thompson:

You have requested an official opinion relating to the following factual situation:

FACTS:

Pursuant to the provisions of SDCL 7-8-3, a number of Clay County residents wish to change the number of county commissioners from the current number of three (3) to five (5). Fifteen (15) percent of the registered voters of Clay County petitioned the Board of County Commissioners for the increase. Following the submission of said petition in April of 1988, however, a number of the signatures were found to be duplicated and thereby invalidated. Consequently, the number of actual signatures fell below the statutorily required fifteen (15) percent. As a result, the change of commissioners question was not submitted to a vote of the county at the "next primary election" which transpired on June 7, 1988. Subsequent to June 7, 1988 additional signatures have been collected and the actual signatures now exceed the statutorily required fifteen (15) percent.

QUESTIONS:

1. Since the change in county commissioners question was not submitted to a vote of the voters of Clay County at the "next primary election", do the persons gathering signatures for the petitions need to collect further signatures in order to obtain the necessary percentage of registered voters desiring such a change?

2. May the revised petition, including signatures obtained after the June 7, 1988 primary election, be allowed to "carry over" until the next primary election which is to take place in 1990?

3. May circulators of petitions be paid to carry petitions?

4. Does the fact that a petition was not signed by the person who actually circulated the petition invalidate the petition?

5. May a person who has signed a petition have his name removed therefrom after he has signed and, if so, for how long does a petitioner have such right of withdrawal?

IN RE QUESTIONS NO. 1 AND NO. 2:

SDCL 7-8-3 provides:

The number of county commissioners of any county may be increased to five or reduced to three. If fifteen percent of the registered voters of the county, based upon the total number of registered voters at the last preceding general election, petition the board of county commissioners for an increase or decrease in the number of county commissioners, the board shall submit the question to a vote of the voters of the county at the next primary election. Notice of the submission of such questions shall be given in the notice of such primary election. (Emphasis added.)

It is clear from the foregoing statutory language that the Board of County Commissioners must submit this type of question to the voters of the county at the "next primary election" which follows the proposal of said question. From the facts that you have presented, it would appear that the original signatures obtained for this petition would now be invalidated due to the fact that the petition which they proposed to the Board of County Commissioners was not suitable to be submitted to the voters of the county at the primary election on June 7, 1988. The reason the proposal was not submitted on June 7 was because it was determined that there were not enough valid signatures to require submission of the question to the voters. As a result, the petition to which these signatures attached became a nullity.

The signatures obtained after the June 7 primary election, however, should be allowed to "carry over" because they attached to a new proposal which sought to change the number of county commissioners. In fact, these signatures, if accurate, could be applied to a similar petition which could be presented to the Board of County Commissioners for submission to the voters at the next primary election. It should be noted that the specific number of required petitioners may have changed since the original petition drive was initiated in April of 1988 because a general election has transpired in the interim.

In light of the foregoing, it being understood that the signatures originally submitted for the June 7, 1988, primary are no longer valid for any purpose, the answer to your first question would be "Yes," to the extent that additional signatures must now be obtained in order to have the statutorily required number of persons desiring such a change based upon the total number of registered voters at the recent general election. Furthermore, the answer to your second question is also "Yes," only to the extent that the signatures obtained subsequent to the June 7 primary election are valid and are subject to the review of the Clay County Board of County Commissioners at some point prior to the next primary election.

IN RE QUESTION NO. 3:

Next you address the question of whether circulators of petitions may be paid to carry the petitions in light of recently enacted SDCL 2-1-13.

This Office recently opined that the statutory prohibition against paid circulation of initiative or referendum petitioners contained in SDCL 2-1-13 was indirectly invalidated by the United States Supreme Court's holding in Meyer v. Grant, __ U.S. ___, 108 S.Ct. 1886 (1988). See, Attorney General Opinion 88-50. In Meyer, the United States Supreme Court held that a Colorado statute which prohibited the payment of petition circulators imposed a burden on political expression which the State failed to adequately justify. Meyer, 108 S.Ct. at 1895.

Thus, the answer to your third question is "Yes", circulators may be paid to carry petitions despite the provisions of SDCL 2-1-13.

IN RE QUESTION NO. 4:

SDCL 7-18A-12 provides:

Each person who has circulated a petition shall, before filing the petition, attach his affidavit, signed under oath, which shall state that he and each of the persons who signed the petition is a qualified voter of the county. One or more pages of signatures may be attached to a single affidavit. (Emphasis added.)

It is clear from the foregoing statutory language that a circulator of a petition must sign and attach an affidavit thereto. See also, SDCL 2-1-10.

The South Dakota Supreme Court has held that failure to attach an affidavit, signed under oath, renders the signatures on such a petition invalid. Corbly v. City of Colton, 278 N.W.2d 459, 462 (S.D. 1979). Thus, the answer to your fourth question is "Yes," petitions which were circulated but not attested to by the circulator are invalid and the signatures thereon should not be applied toward the statutory requirement of signatures.

IN RE QUESTION NO. 5:

There are no applicable statutory provisions which establish the right of a person who has signed a petition to withdraw their name from such petition. It has been held, however, that there are instances in the absence of statute which would permit signers of a petition to withdraw their names if they acted in a timely manner. Healey v. Rank, 82 S.D. 54, 140 N.W.2d 850, 851-852 (1966). Other jurisdictions have set forth that the period for timely withdrawal ends with the filing of the petition before the body authorized to receive it. Knowlton v. Hezmalhalch, 89 P.2d 1109, 1113 (Cal. 1939); see also, Annot., 27 A.L.R.2d 604 (1953). In any case, withdrawals may not occur after a petition has been acted upon by the authorized body. Jefferson Highway Transp. Co. v. St. Cloud, 155 Minn. 463, 193 N.W. 960 (1923).

In the case at hand, it would seem that precedent in this State establishes that once the petition is submitted to the county auditor and forwarded to the Board of County Commissioners, any attempt to withdraw names from such a petition would be untimely. See, Healey, 140 N.W.2d at 852. Consequently, a person who had signed the petitions in question would have a right to withdraw their name prior to the submission of the petitions to the Clay County Board of County Commissioners but would not have such a right thereafter.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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