If sponsors filed the text of a South Dakota constitutional amendment with the Secretary of State after one gubernatorial election but gathered signatures and submitted the petition after a later gubernatorial election, which election's vote count sets the signature threshold?

Plain-English summary

In August 1998, sponsors of a proposed South Dakota constitutional amendment filed the full text of their measure with Secretary of State Joyce Hazeltine. Hazeltine's office told them they had one year to collect signatures and that the threshold was 31,162, which was ten percent of the 1994 vote for governor. Then November 1998 rolled around and South Dakota elected a new governor. Ten percent of the 1998 gubernatorial vote was 26,019, almost 5,000 fewer signatures. The sponsors asked whether the lower 1998 figure now applied to them.

AG Mark Barnett read Article XXIII, Section 1 of the South Dakota Constitution literally. It required signatures equal in number to "at least ten percent of the total votes cast for Governor in the last gubernatorial election." The natural reading was that "the last gubernatorial election" meant the most recent one as of the moment the question came up. In most cases the answer was the same regardless of which election was the reference point, because no intervening gubernatorial election would happen during the one-year signature window in SDCL 2-1-6.2. But when an election did happen mid-cycle (as it had here), the most recent election controlled the threshold for the petition submitted to the Secretary of State.

The opinion put the result in plainer terms: the 1998 vote count, not the 1994 vote count, set the signature requirement for a petition filed between June 1999 and August 17, 1999. The opinion also acknowledged that this rule could be uncomfortable for sponsors, because they would not know the final number when they started collecting signatures. The AG put that burden on the sponsors, characterizing it as a consequence of their own timing. He cited the Eighth Circuit's Dobrovolny v. Moore decision for the proposition that no federal constitutional issue arose from sponsors not knowing the exact requirement when the process started.

Currency note

This opinion was issued in 1999. 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 its initiative and referendum statutes several times since 1999, including changes to the filing window and to signature validation procedures, so the precise mechanics no longer track the 1999 framework.

What the opinion meant at the time

For initiative sponsors and the political committees backing them, the opinion was a planning instruction. If a gubernatorial election was going to happen between filing of the text and submission of signatures, the sponsors had to plan for a moving target. The safer practice was to assume the higher of the two possible thresholds and collect a cushion above that.

For the Secretary of State's elections division, the opinion gave a clean procedural rule: when accepting a petition for filing, count signatures against the most recent gubernatorial vote total, not the total that was current when the text was first filed.

For civic organizations using the initiative as a policy lever, the opinion meant that a long-running signature drive that bridged a governor's race could end up with a different (often lower, sometimes higher) threshold than expected. The "last gubernatorial election" language gave the process a built-in update mechanism tied to political turnout.

For practitioners advising sponsors, the opinion identified the controlling sentence in Article XXIII, Section 1 and cited the South Dakota Supreme Court's 1998 Beals v. Pickerel Lake Sanitary District decision for the rule that constitutional text should be read in its most natural and obvious meaning. The opinion's analysis came down to standard constitutional construction rather than any unusual procedural argument.

Common questions

Q: Did this opinion apply to ordinary statutory initiatives, too, or only to constitutional amendments?
A: The opinion focused on constitutional amendments because Article XXIII, Section 1 was the specific provision in play. Statutory initiatives are governed by Article III, Section 1 with its own thresholds. The reasoning, however, was about how to read "last gubernatorial election" in general, and similar logic would likely apply to any provision that tied a signature count to the most recent governor's race.

Q: Could the AG have applied the older, higher threshold to be fair to sponsors who had already started collecting?
A: The opinion considered and rejected that. The AG saw the constitutional text as unambiguous in pointing to the "last" election. The sponsors bore the timing risk, even though they had been told something different by the Secretary of State's office.

Q: What happened if the petition was filed before any intervening gubernatorial election?
A: The opinion noted that in most cases there would be no intervening election within the one-year window, so the question would not come up. The 1999 case was unusual because the sponsors had filed their text long enough before submission that an election fell inside their gathering period.

Q: Could sponsors withdraw and refile to lock in the older threshold?
A: The opinion did not address withdrawal mechanics. Article XXIII, Section 3 contemplated withdrawal by sponsors before submission to the voters, but the procedural details, and whether refiling would reset the clock, were not addressed.

Q: What did Dobrovolny v. Moore add to the analysis?
A: Dobrovolny was an Eighth Circuit decision from Nebraska holding that whether a state required a fixed or floating number of signatures for an initiated measure was a question of state law and did not present a federal constitutional issue. The AG used it to head off any argument that South Dakota's floating-number reading would create a federal due process problem.

Background and statutory framework

South Dakota's constitutional initiative process lives in Article XXIII of the state constitution. Section 1 sets out the petition requirement: signatures from qualified voters equal to at least ten percent of the total votes cast for governor in the last gubernatorial election, plus a one-year-before-the-next-general-election filing deadline. Section 3 governs the post-petition stages, including the requirement that the proposed amendment be approved by a majority of the votes cast at the next general election.

The legislative implementation is in SDCL Title 2, Chapter 1. SDCL 2-1-6.2, enacted in 1989, sets out the mechanics: sponsors must file the full text of the petition first, signatures may be collected for one year after the text filing, and the signed petition must be filed within that one-year window. The 1989 enactment date meant that in 1999 the statute had not yet generated any judicial or AG construction on the specific question the opinion addressed; the only earlier AG opinion on the general topic was 77-93, which the opinion called superseded by the newer legislative scheme.

The constitutional construction rule the AG applied came from Beals v. Pickerel Lake Sanitary District, 1998 S.D. 42, ¶ 25, 578 N.W.2d 134, 139. The South Dakota Supreme Court there restated the classical canon: the words of a constitution are interpreted in their most natural and obvious meaning unless context suggests a technical sense, and where the same words appear in different parts of the document, they are presumed to have a uniform meaning.

Applied to "the last gubernatorial election," that canon pointed to "most recent" rather than "most recent as of the filing of the text." The AG saw nothing in Article XXIII or in SDCL 2-1-6.2 that froze the reference election at the front end of the cycle.

Citations and references

Constitutional provisions:
- S.D. Const. art. XXIII § 1 (initiative power, signature threshold, filing deadline)
- S.D. Const. art. XXIII § 3 (vote of the people, withdrawal)

Statutes:
- SDCL § 2-1-6.2 (full text filing, one-year signature window)

Cases:
- Dobrovolny v. Moore, 126 F.3d 1111 (8th Cir. 1997), cert. denied, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998)
- Beals v. Pickerel Lake Sanitary District, 1998 S.D. 42, 578 N.W.2d 134

Earlier AG opinions referenced:
- AGO 77-93 (superseded)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2099-01.pdf

Original opinion text

June 1, 1999

The Honorable Joyce Hazeltine
Secretary of State
State Capitol, Ste. 204
500 East Capitol Avenue
Pierre, SD 57501-5070

OFFICIAL OPINION NO. 99-01
Required Number of Signatures for Constitutional Initiated Measures

Dear Secretary Hazeltine:

You have requested an official opinion from this Office regarding the following factual situation:

FACTS:

Article XXIII, Section 1, of the South Dakota Constitution allows for an initiated constitutional amendment. On August 17, 1998, the full text of a constitutional amendment was filed with us. Based on SDCL 2-1-6.2, the sponsors were advised that they had one year to collect the needed signatures in order for the measure to be placed on the ballot for the November 7, 2000, general election. They were also told that the number of signatures needed was 31,162, which was 10% of the vote for governor in the last gubernatorial election (1994). Since then we had another gubernatorial election in November of 1998. Ten percent of the vote for governor in 1998 is 26,019.

Based upon the following you have posed the following question:

QUESTION:

If this petition is filed between now and August 17, 1999, is the signature requirement based upon the total number of votes cast in the 1994 or 1998 gubernatorial election?

IN RE QUESTION:

Article XXIII, Section 1, of the South Dakota Constitution provides:

Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment.

Article XXIII, Section 3, of the South Dakota Constitution provides:

Any constitutional amendment or revision must be submitted to the voters and shall become a part of the Constitution only when approved by a majority of the votes cast thereon. The Legislature may provide for the withdrawal by its sponsors of an initiated amendment at any time prior to its submission to the voters.

In order to implement these provisions of the South Dakota Constitution, the Legislature has enacted several statutes setting forth the process to place an initiated constitutional amendment measure on the ballot for vote. As indicated in your statement of facts, the most relevant statute to your inquiry is SDCL 2-1-6.2, which provides:

The full text of any initiative petition, referred law petition, or initiated constitutional amendment petition complete with names and addresses of the petition sponsors shall be filed with the secretary of state prior to circulation for signatures. The signer's post office box number may be given in lieu of a street address if the signer lives within a municipality of the second or third class. The form of the petitions shall be prescribed by the state board of elections. Signatures may be collected on initiative petitions for one year following the filing of the full text. The petition signatures shall be filed no later than one year after filing the full text with the appropriate filing officer. All sections of any petition filed under this chapter shall be filed with the secretary of state simultaneously together with a sworn affidavit on forms promulgated by the state board of elections, signed by two-thirds of the sponsors stating that the documents filed constitute the entire petition and to the best of their knowledge contain a sufficient number of signatures.

I note that this statute is of fairly recent origin, being first enacted in 1989. This statute has not been interpreted by the courts or this Office in answer to your specific question. The only prior Attorney General's Opinion concerning the general subject matter is AGO 77-93, which has been superceded by the current legislative scheme.

The answer to your question is resolved by interpreting the following sentence in Article XXIII, Section 1: "An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election."

This issue is one solely of state constitutional construction. The recent Eighth Circuit decision in Dobrovolny v. Moore, 126 F.3d 1111 (8th Cir. 1997), cert. denied, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998) clearly holds that issues involving the necessary number of signatures for initiated measures are controlled by state law. The standards for construction of constitutional provisions were recently set forth by the South Dakota Supreme Court in Beals v. Pickerel Lake Sanitary District, 1998 S.D. 42, ¶ 25, 578 N.W.2d 134, 139 (1998), which stated:

The words and terms of a Constitution, like those of a statute, are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense. The presumption is in favor of the natural and popular meaning in which the words are understood by the people who have adopted them; and where the same words are used in different parts of a Constitution or statute they are presumed to have a uniform meaning throughout the instrument, but this does not necessarily follow.

Applying the above standard of construction, I conclude that the number of required signatures by qualified voters must be based upon the gubernatorial election preceding the submission of the petition to the Secretary of State, not that preceding filing of the text of the measure. In most cases, of course, the signature requirement will be the same. Where, however, the initiative process begins and there is an intervening gubernatorial election during the signature gathering process under SDCL 2-1-6.2, the latest election controls the signature requirement. To construe this provision otherwise would be inconsistent with its plain language. The fact that the sponsors of the initiative measure do not know the exact number of signatures needed when the process begins is a burden that the sponsors must bear, since it is caused by their own timing of events. The Eighth Circuit decision in Dobrovolny, 126 F.3d at 1112 makes clear that no federal constitutional issue is created by the fact that sponsors of an initiated measure are unaware of the number of signatures required until its submission.

Thus, the answer to your question is that the number of signatures required to place the petition in question on the ballot for the 2000 election is ten percent of the total votes cast for governor in the 1998 general election.

Respectfully submitted,

MARK BARNETT
ATTORNEY GENERAL

MB:JPH:clr