If a South Dakota county runs a petition drive to change the number of county commissioners but misses the next primary election deadline, can the signatures carry over to the next primary? Can circulators be paid? Must they sign an affidavit? Can a signer withdraw their name?

Plain-English summary

Clay County residents wanted to expand their Board of County Commissioners from three members to five. Under SDCL 7-8-3, 15% of the registered voters had to petition the board, and the question would then go to the voters at the "next primary election." The drive collected what looked like enough signatures by April 1988, but on review some signatures were duplicates and the actual count fell below 15%. The question did not make the June 7, 1988 primary. After that election, more signatures were collected and the petition once again exceeded 15%. The county auditor asked AG Roger Tellinghuisen five practical questions.

Question 1 and 2 (carrying over signatures): The post-primary signatures could attach to a new petition aimed at the next primary (1990), but the pre-primary signatures had become a nullity when the deadline passed without qualification. So circulators had to gather a fresh count to clear the 15% threshold, measured against the registered-voter base from the most recent general election (which had occurred in the interim).

Question 3 (paid circulators): SDCL 2-1-13 had banned paid circulators for initiative and referendum petitions. The U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1988), had struck down an identical Colorado law as a First Amendment violation on political expression. The AG's office had already opined in 88-50 that Meyer v. Grant indirectly invalidated SDCL 2-1-13. So circulators could be paid, despite the South Dakota statute on the books.

Question 4 (circulator affidavit): SDCL 7-18A-12 (and SDCL 2-1-10) required each circulator to attach a signed affidavit attesting that the circulator and each signer were qualified voters. The South Dakota Supreme Court had ruled in Corbly v. City of Colton, 278 N.W.2d 459 (S.D. 1979), that the failure to attach the affidavit voided the signatures. So a petition circulated without an affidavit was invalid on its face.

Question 5 (signature withdrawal): No statute spoke to withdrawal, but cases like Healey v. Rank (S.D. 1966) and out-of-state precedent established that a signer could withdraw timely, generally up until the petition was submitted to the authorized body. After submission to the Clay County Board, signers could not pull their names.

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. Specifically, SDCL 2-1-13 may have been formally repealed or amended since 1989 to align with Meyer v. Grant, and the petition-circulation framework has evolved in significant ways through later case law. Anyone running a current petition drive should consult current SDCL Title 2 chapters and current SD Secretary of State guidance.

What the opinion meant at the time

For Clay County's specific drive, the AG's answer meant essentially starting over with the signature count. New signatures collected after June 1988 could go onto a new petition; the pre-June signatures were void. And because a general election had occurred in the interim, the 15% threshold was now measured against a different (likely larger) registered-voter base.

The opinion's broader contribution was in three places:

1. The Meyer v. Grant incorporation. Tellinghuisen confirmed that a 1988 U.S. Supreme Court ruling on a Colorado statute had effectively invalidated South Dakota's parallel ban. That was a quick application of First Amendment doctrine that mattered immediately to anyone organizing petition drives in SD.

2. The affidavit-as-jurisdictional rule. Corbly had held that the circulator affidavit was not a technicality but a jurisdictional requirement. The AG reaffirmed that reading. Circulators who omitted the affidavit voided their work.

3. The withdrawal-timing rule. Signers could change their minds, but only until submission. The opinion gave county auditors a clean rule: stamp the petition received, and withdrawal closed.

Common questions

Q: Is this opinion still good law?
A: The Meyer v. Grant holding remains controlling federal law on paid circulators (the U.S. Supreme Court has reaffirmed it in later decisions). The Corbly affidavit rule remains South Dakota law. The withdrawal-timing rule remains the common-law position. SDCL 7-8-3, SDCL 7-18A-12, and related statutes may have been amended since 1989; check current text before relying on specific procedural requirements.

Q: What is the "next primary election" for SDCL 7-8-3 purposes?
A: The first primary election occurring after a sufficient petition is submitted. If the petition fails to qualify before that primary, the question must wait for the following primary. South Dakota holds primaries in June of even-numbered years.

Q: Why did the 15% threshold change after the general election?
A: SDCL 7-8-3 keys the 15% to "the total number of registered voters at the last preceding general election." When a new general election occurred in November 1988, the relevant base became that election's voter total, which was likely higher than April 1988's base. So absolute signature counts had to clear a higher bar to meet 15%.

Q: Can a non-resident or out-of-state circulator carry petitions?
A: This opinion does not address residency requirements for circulators. Meyer v. Grant and subsequent cases have considered residency restrictions on circulators as additional First Amendment burdens, with mixed outcomes. Current SD law and current Supreme Court case law should be consulted.

Q: What happens to the petition if circulators fail to provide affidavits but signers were genuine voters?
A: Corbly says the signatures are invalid regardless of whether the underlying signers were qualified. The affidavit is a free-standing requirement. The fix is to re-circulate (with affidavits this time), not to attempt to validate the orphaned signatures.

Q: Can a county board reject a petition without a hearing?
A: This opinion does not directly address the procedural requirements when a board reviews a petition. Generally, the board's review is ministerial (verifying signatures and percentage), not discretionary, but procedural due process likely requires some opportunity to cure obvious technical defects.

Background and statutory framework

South Dakota uses petition mechanisms throughout its government structure: initiatives, referenda, recall of officials, formation and dissolution of districts, and (as here) reorganization of county governance. SDCL 7-8-3 is the specific statute for changing the number of county commissioners; analogous statutes govern other county-government changes. The 15% threshold is a recurrent number across many petition statutes.

The procedural requirements layered onto petition drives in 1989 included:

1. The threshold percentage of registered voters (SDCL 7-8-3 at 15%).
2. The voter-base year (last preceding general election).
3. The destination body (county board of commissioners) and the destination election (next primary).
4. The circulator affidavit (SDCL 2-1-10 and 7-18A-12).
5. The (formerly) prohibited compensation of circulators (SDCL 2-1-13, after Meyer v. Grant effectively dead letter).

Meyer v. Grant was a watershed in petition-circulation jurisprudence. The Court held that paid circulation is a form of core political speech and that prohibiting it imposes a heavy burden the state must justify with compelling interests and narrow tailoring. Colorado failed that test, and SD's parallel ban followed. Later Supreme Court decisions (Buckley v. ACLF, 1999; Doe v. Reed, 2010) have continued to refine the framework.

Citations and references

Statutes:
- SDCL 7-8-3 (petition to change number of county commissioners)
- SDCL 2-1-10, 7-18A-12 (circulator affidavit requirement)
- SDCL 2-1-13 (paid circulator ban; effectively invalidated)

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

Prior AG opinions:
- Official Opinion 88-50 (Meyer v. Grant's effect on SDCL 2-1-13)

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

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1

Original opinion text

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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