McIntyre v. Wick

347 provisions seated in the of the the rule that constitutional Ausdale were back Van security person property car. liberally should be construed. A close the two men made The statements deprives and literal construction them of patrol prompt in the car were to each other efficacy, gradual half their and leads to an by actions undertook with ed Swenson depreciation right, if it consisted response.7 I stated in intent As to.elicit in more sound than in substance. It is Ramirez, actions should be scruti Swenson’s duty courts to be they interroga nized because constituted watchful for citizen, rights constitutional tion under Miranda: against stealthy encroachments practice troop- also common for state It’s thereon. people ers to advise of their Miranda they place custody. in rights when them 616, 635, 524, 535, 6 U.S. S.Ct. 29 L.Ed. Not Officer Swenson. Officer Swenson not (1886) 746, Schneckloth, (quoted only custody, secretly placed them 228-29, 2048, at U.S. 93 S.Ct. at 36 L.Ed.2d machine, recording activated the but failed 863-64) added). (emphasis at right to advise them of their to remain silent. His search of their car under these compel

circumstances was bound to a re-

sponse secretly from them which he was 440,

taping. Cody, In v. State N.W.2d (S.D.1980), we stated: “interrogation”

The term under Mi- only express ques- randa refers not SD tioning, but also to words or actions McINTYRE, Plaintiff, John (other police part on the than normally those attendant to arrest and v. custody) police that the should know are WICK, Hal G. Defendant.

reasonably likely to elicit an incrimina- ting response suspect. from the Douglas KAZMERZAK, Plaintiff, (citation (Sabers, J., dissenting) Id. at 852 omitted). FRYSLIE, Arthur F. Defendant. acting If [¶35] Swenson is outside the scope Highway of established South Dakota Nos. 19899. is, procedures,

Patrol as he he admits Supreme Court of South Dakota. entity type should “decide whether this Original Proceedings 1) 2) activity Policy; prohibit- should be only theory, practice.” Argued ed—not but in Id. Dec. 1996. made, that decision is Until this court should Decided Dec. 1996. coercive,

stop sanctioning blatantly unconstitutional, Trooper tactics of Swenson. Boyd

The “classic admonition” of v. United repetition:

States merits thing

It be that it is the obnoxious form; repulsive its mildest and least illegitimate prac-

but and unconstitutional get footing way,

tices their first

namely, by approaches slight silent legal procedure.

deviations from modes only by adhering

This can be obviated Ramirez, ing In Swenson testified that he obtained tactics. same incriminating past by employ- information in the Viken, results were certified Viken, candidates. The Pe- both M. Viken of Linda Lea and showed Wick Dewell, City, plain- on December chota, Rapid for Leach & elected one vote. had been tiffs. McIntyre votes 24.71% Johnson, Heide- Heidepriem of Scott N. Casey votes 22.94% Falls, Marlow, priem, Miner & Sioux 24.71% 4192 votes Wick defendants. 4689 votes 27.64% Rost MILLER, Justice. Chief timely McIntyre written no- delivered to initiate a of his intention tice to Wick ACTION 12-22- pursuant contest (No. 19898) McIntyre Plaintiffs John 12-2H7, McIntyre Pursuant to SDCL (No. 19899) Douglas filed Kazmerzak a of certio- petitioned this Court for writ also seek- separate petitions for writs of certiorari recount. This Court is- rari to review the in the recounts their re- ing our review of 12-21-50. upon based SDCL sued the writ is- legislative elections. We spective state 37, 32, 4 McIntyre disputes 33 and Exhibits in each case limited sued a writ of certiorari (See disputes Exhibit 22. Exhib- while Wick pursu- proceedings to review of the recount opinion.) its attached to this 12-21. Hal G. ant to ch Defendants SDCL (No. (No. 19898) Fryslie Fryslie # 19899 Kazmerzak Arthur F. Wick 19899) to dismiss each action have asked us Legis- general In election in the 1996 [¶ 5] writ, asserting quash each that the South Miner, Clark, (composed District 6 lative Representatives has the Dakota House of part Codington Kingsbury, Hamlin and jurisdiction judge to the election exclusive in County), the candidates for two seats qualifications of its members. returns and Representatives Republican on the House of opinion, in For the reasons set forth Frys- Lakness and Arthur F. ticket were Joe legislature that while the has the conclude lie; Roger the Democratic candidates authority finally to determine who exclusive Douglas Kazmerzak. On November Lee and legislative in contest will be seated election 5, 1996, night gave a the election totals thir- jurisdiction proceeding, this Court has margin to Kazmerzak: teen-vote irregularities and in the tabu- review errors votes 32.95% Lee 6506 proceeding. in lation of votes recount Kazmerzak 4526 votes 22.92% Lakness 4198 votes 21.26% Fryslie votes 22.86% 4513

FACTS McIntyre # 19898 v. Wick Fryslie asked for a recount. The [¶ 6] general Legis- in In the 1996 [¶ 2] win, changing recount reversed Kazmerzak’s four candidates lative District there were tally to: for two seats in the South Dakota House votes 33.00% Lee Representatives: Democrats R. McIn- John 22.88% Kazmerzak 4519 votes and, tyre Casey; Republicans Dick Hal 21.24% Lakness 4195 votes Judy tally Rost. The vote Wick Fryslie 4521 votes 22.89% election was: McIntyre 4195 votes 24.73% Kazmerzak, McIntyre, like delivered [¶7] Casey votes 22.93% 24.71% Wick votes initi- timely notice of his intention to written Rost 4687 votes 27.63% pursuant legislative ate a contest to SDCL petitioned for 12-22-26. He also this Court recount. a writ of certiorari to review the McIntyre initially was declared [¶ 3] writ. 12-21-47. We issued the SDCL margin. been elected a four-vote have 12-21-50. SDCL in accordance petitioned Wick for a recount in Kazmerzak contends that auditors 12-21-12. The recount was con- Hamlin, Kingsbury, and Clark counties presence representatives in the for ducted differently proceedings summarily counted certain ballots than audi- the recount and have Codington in tors Miner and counties. The responded plaintiffs’ by argu- contentions when voters marked ballot problem arose ing jurisdiction this Court has no whatsoever indicating straight head a column at the act in disagree. this arena. We We hold party ticket vote and also marked the ballot legislature that while the has the exclusive next to the name of one candidate authority finally determine who will be same political party not the other in but pro- seated election contest devoted to the section the ballot ceeding, jurisdiction this Court has to review counties, only race. In two the candidate irregularities and errors the tabulation of vote, given whose name was marked was proceeding. votes recount party’s while three counties both of the rely upon [¶ 10] Defendants the fol given pursuant candidates were a vote to the lowing language from South Dakota Consti straight ticket. III, § tution Article 9:

JURISDICTION Each judge house shall be the of the elec- qualifications tion Defendants have moved to returns1 and its own quash the of certiorari issued to review writs members. precinct

1. While the “election has not been term returns” trae number of votes cast in the constitution, code, explicitly measure, law, defined in our person, each or amendment law, case an examination of the authorities below ballot, appears upon which the official and leads to the conclusion that "election returns” envelope shall enclose the same in the de- precincts are sheets from and counties show- judge § scribed in 12-20-10. The of election ing legisla- the total votes cast for each individual deputed to deliver the election returns to the implements carrying tive candidate. The used in charge officer in of the election shall return it ballots, boxes, out the election such as ballot separate envelopes wrappers from other or books, voting poll machines and as well as the returned at the time he delivers the election totals, compilation method of vote of are not returns. included within the term. 12-20-37, 1890), (passed Under SDCL 1889, In III, when South Dakota Constitution Article Secretary required State is of to furnish to the enacted, XXVI, § required § was 9 Article 8 county “envelopes auditors all returns of judges certify of the constitutional election to and office, required votes to be made to his with XXVI, "return the result” of the election. Article printed envelopes directions on the as are Governor, required § Justice, 11 Territorial Chief necessary by deemed the state board of elections Secretary and territorial to "canvass the guidance for the and direction of the officers in 1877, time, 27, 29, §§ returns.” At that PolC ch. making according the returns to law.” It is (now 12-20-21) required SDCL the return of returns,” envelopes doubtful these would be of envelope containing sufficient “the the unofficial ballots, books, ballots, entity separate tally poll poll tally size to accommodate from sheets and sheet, registration 12-20-47, and lists passed which also re- books. Under SDCL also quired charge 1890, to be returned to the office in of open the Board of State Canvassers "shall 1877, 27, § the election. See also PolC ch. counties[J” examine returns from all the (SDCL 12-20-35); 1877, (SDCL § PenC 12- Early case law from this Court is also of assis- 26-25); (SDCL l-8-l(6)). § SL ch. 105 2 process describing tance in which election statutory If there is a definition of what consti- Sheldon, existed at that time. In Woods v. tutes an “election it is found or at least return” (1896), S.D. 69 N.W. 602 there is a de- 12-20-11, described in SDCL 12-20-10 and both scription of what constitutes an election return passed provides: in 1911. SDCL 12-20-10 presidential in a election. It consisted of a by There shall be furnished the officer in by abstract of the election results certified charge voting precinct, of the election to each county auditor. It did not consist of the bal- election, for each a blank list which shall have lots themselves or even the from the returns space after each candidate's name and after voting precincts. individual rence, Smith v. Law- measure, law, each or amendment to be voted (1891), S.D. 49 N.W. deals election, upon at such in which to enter the an election for which in the sheriff occurred precinct number of votes cast in the for each general first election after enactment of our candidate, measure, law, amendment, or to- level, precinct state constitution. At the gether envelope with an addressed to the offi- poll vote totals were into the books. At written charge cer in of the election and labeled in county level election were an returns letters, plain "Immediate—Unofficial Return— compilation county abstract or votes put Do not this in ballot box." precincts. from the various It is clear that at provides: SDCL 12-20-11 complete, judges no time were the individual ballots considered When the vote count is upon part the election shall enter such blank list the to be of the election returns. give must provision court ing a constitutional plain language of contend the Defendants instrument, legis- must seek to regard makes each house of to whole provision disputed legisla- must, judge of provisions, lature the exclusive various harmonize the principle sepa- elections and that tive provisions). give effect to all the possible, if any involvement powers forecloses ration Heinrich, 25, 27 449 N.W.2d also State v. See judiciary by with this exclusive (S.D.1989)(this uphold the statute Court will However, oversimplification function. unconstitutionality beyond is shown unless jurisdic- ignore require this Court would doubt); In re a reasonable Certification authority granted to it under anoth- tion (Elbe), 113,116 Question Law 372 N.W.2d constitution: provision of our state er (S.D.1985)(statutes con- presumed are to be appel- have such Supreme Court shall stitutional). may provided jurisdiction be late agree with defendants We Supreme Court Legislature, and the pri “plain meaning” is the ascertaining the any original any justice issue thereof interpreta mary component heard of constitutional which shall then be or remedial writ Walker, by that court. Poppen and determined tion. See Const, right 238(S.D.1994)(Supreme Court has V, § art. S.D. provision accord construe constitutional Here, specifically in- plaintiffs have However, many plain meaning). with its jurisdiction writs to issue voked this Court’s precise to define the courts have wrestled proceedings of certiorari to review the upon jurisdiction imposed limitations their 12-21-47 pursuant to SDCL recount boards provisions “plainly worded” constitutional 12-21-48(1). provides 12-21-47 body judge empowering pertinent part: qualification of its members. aggrieved candidate is Whenever See, Annotation, e.g., Courts Jurisdiction final determination made as a result Qualifications Determine Election or recount, to proceedings any he have the Body, upon Legislative and Conclu cer- Member of such recount board reviewed Decision, by chapter!.] provided by tiorari as Con siveness Affected Making Statutory stitutional or Provision 12-21-48(1) provides: Body Judge and Legislative Election Original jurisdiction pro- of such certiorari Members, Qualification 107 ALR its Own ceeding shall be as follows: (1937). (1) the same involves submitted Where upon in question voted or referred Supreme The United States Court county, or the nomina- more than one grappled this issue in Roudebush v. with electors, presidential tion or election Hartke, 31 L.Ed.2d U.S. S.Ct. senator, representative States United (1972). Hartke won election to the United Legislar Congress, member oppo- his Senate from Indiana and States ture, officer, judicial or state or Roudebush, nent, petition for a re- filed Supreme Court[.] by judicially appointed commission. count (emphasis supplied). We decline defendants’ injunction against sought Hartke a federal responsibilities im- ignore invitation on the basis that it would be the recount by posed upon us South Dakota Constitution I, 5,§ of the Constitu- prohibited Article Y, § 12-21-47 and 12- Article 5 and SDCL provides which tion of the United States Accordingly, must reconcile 21-48.2 part: pertinent statutory provisions these constitutional and judge of the elec- Each house shall be the III, Dakota Article with South Constitution tions, Club, qualifications of its own returns and § Auto. Inc. v. 9. See South Dakota (S.D.1981)(in Volk, members!.] constru- dissenters, legis- accept position others. These enactments all reflect clear of the two 2. If we safeguard fair elections em- unconstitu- lative intent to then we must at a minimum declare 12-21^-7, powering courts to review mis- following South Dakota tional statutes: SDCL 12-21-48(1), proceedings. perhaps in recount and a host of takes 12-21-50 Supreme gover- North Dakota injunction granted was issue was Court. The Supreme appealed to the United States nor also moved that Court to issue an order held: declaring judgment Court which the district court’s void appeal gover- ab initio. Both the found, and the along many other Indiana has nor’s motion were based on a States, necessary constitutional procedure that one provision making legisla- irregularity each house of the guard against and error judge ture availability of a of the election returns tabulation of votes is the qualifications integral part recount is an of its members. In both the recount.... A process appeal hearing argued of the Indiana electoral and is and the motion it was powers provision within the ambit of the broad dele- that this constitutional denied the I, § gated jurisdiction Art. to the States district court to issue the order special for a election. The North Dakota It is true that a verification of the State’s court held: accuracy pursuant of election results to its I, 4,§ powers totally separable is not

Art. accept argu- If we extend the judge power from the Senate’s elections IV, give ment of the contestees and Art. can and returns. But a recount be said to Const, Ill, § 26 to S.D. art. [identical only if “usurp” the Senate’s function it 9], overriding effect, § giving without ability to make an frustrates the Senate’s VI, meaningful § consideration to Art. independent judgment. A recount final [i.e., jurisdiction courts], of district prevent indepen- does not the Senate from [i.e., NDCC Ch. 16.1-16 election contest dently evaluating the election more court], proceedings in district an undesir- than the initial count does. The Senate is able and absurd result would be reached. reject accept apparent free to or win- Every primary general in- count, and, chooses, if ner in either it legislative Every volves some candidates. conduct its own recount. se, challenge per of such election as distin-

guished challenge specifically from a di- candidate, rected to a will inci- expressed, For the reasons we conclude and, dentally involve a candidate I, Constitution, § that Art. does result, aas the house involved would be prohibit conducting from Indiana upon called to resolve the conflict. We recount of the 1970 election ballots for session, legislature know that the is not United States Senator. generally, primary general when the Roudebush, 25-26, 405 U.S. at 92 S.Ct. at Consequently, elections are held. consid- 810-11, 31 L.Ed.2d at 11-12. delay confusion and would result. erable home, to [¶ 14] Closer the North Dakota We do not believe the framers of the Con- Supreme upheld jurisdic- Court has also remotely had an intent. stitution such disputed tion of its courts to act in election addition, recognize In must also notwithstanding provi- cases a constitutional Legislature position is not in a sion identical to Dakota South Constitution remedy. provide any equitable affirmative III, § Article 9. In State ex rel. Olson v. reject Legislature The could the “election” Bakken, (N.D.1983), 329 N.W.2d 575 526 bal- legislator may put opera- of a which into precinct lots an election were not counted provisions tion certain of the Constitution labeling because of the erroneous of some of resulting and statutes in the Governor call- voting precinct. machines The ing special election. But other affirma- rejection open of these ballots threw race equitable tive remedies would not be avail- representatives of for the state house where able. margin victory purported winner’s was Significantly, than 526 the action commenced less votes. Pursuant state stat- utes, brought contesting voters a court action twelve voters did not contest the election specifically any legislative A candidate the election. district court ordered that a (NDCC 16.1-16-10, held, §§ chal- special seq.). limited et The election be to those vot- lenge process to the election which ers whose ballots had not been counted. The was appealed to the 526 votes not counted. The contest district court’s order was were Ingles then opening of the ballot boxes. legislative candi- only incidentally involved prohibition this Court for a writ applied to dates. inter- directing the circuit court to cease its issue, resolving we cannot overlook In this depositions. with the ference ques- a basic constitutional that it involves tion, importance. its right to vote and questions Ingles asserted that all attempted con- a contest or connected with foregoing legal Taking into account deter- legislative office are to be test for announced in the cases men- principles and, exclusively by legislature mined earlier, application giving full tioned reason, circuit court exceeded its statutory proce- constitutional deposi- jurisdiction by interfering with the dures, that the district court we conclude Thus, jurisdiction of the issue of the tions. subject matter jurisdiction over has disputes involved in courts to become voters contest- brought to it the twelve placed legislative office was over state However, pro- under the ing election. oppor- this Court and a full squarely before IV, § North Da- of Art. visions tunity presented for this Court to hold was Constitution, house will be the kota each jurisdiction judiciary no to become has of members. judge on the election its final However, disputes. embroiled these (citations Olson, at 578-79 omit- held: Court ted)(emphasis original). 3 of 9 of article the Constitution Section foregoing authorities demon- part follows: of this state reads as that, provision strate that constitutional judge of the “Each house shall be the judge of the elec- house shall be the “[e]ach qualifications returns and election qualifications tion returns and of its own power of house own members.” The each members,” simple, does not consist sixteen Legislature to determine the elec- unambiguous have as- words defendants qualification tion and of its own members Const, Ill, Quite § art. serted. S.D. Twenty- plenary. When the is therefore contrary, the courts in these cases have Legislature at the Fourth shall assemble meaning and struggled precise to find the next, January any person eapitol on language. implication of such While may appear either whomsoever before explicit in its own view of Court has not been right and assert his and title to house Dakota Article the effect South Constitution admitted, far therein. It be so seat III, jurisdiction § to act in 9 has on its concerned, that, present issues are as the disputes, its views are cer- asserted, is so then if such a claim whether prior tainly implicit in at least two decisions.3 at all to the or not the house will listen Ingles In rel. him, [¶ State ex Circuit claimant, 16] proof require it what will County, Spink claim, Court 63 S.D. investigation what it will make of his (1934), Motley Ingles N.W. finally and what decision it will come representa- claim, candidates for the state house concerning entire- are matters equal number of exclusively tives and received an votes. ly for that house to deter- Ingles of an election contest presented, served notice mine. If such a claim is began taking depositions investigate from the clerk the house sees fit to the mat- ter, including opening power and auditor the and exami- of the no one can doubt the Motley procured interrogate nation of the ballot boxes. house to summon and wit- nesses, prohibition a from circuit court and ballot boxes writ of the to order ballots directing Ingles depositions relating to the election to the contested to cease the reviewing qualifications legisla placed upon for 3. Reliance has also been cerned with Gutzler, Walter v. tive office not the results of an election recount. Moreover, Court's decision in State ex rel. that, (S.D. 1977), gener proceedings 249 N.W.2d 271 once the Gutzler held, brought auspices power pass upon of an election contest al election has been to under qualifications repre pursuant in note a state to SDCL 12-22-7. As conceded candidate for legis exclusively infra, jurisdiction Court has no over sentative is vested in the house of Here, however, representatives we are lative election contests. under South Dakota Constitution III, Gutzler, however, § with the review of an election recount Article 9. is not instruc concerned inquiry. present election contest. tive in our was con not Gutzler examination, or the above-cited au- States Constitution brought in for seat same, .... or send a thorities open and examine That, purpose. out for that committee system, has an extensive election Our state however, is here which is not the situation procedure con- which includes a recount time, present the rela- us. At the before sections, sixty-one namely, taining individual, tor, endeavoring an Ingles, as through 12-21-1 12-21-61. The entire information, presumably some to assemble procedure in- purpose of this recount was it to the purpose presenting legislature to act as a meth- tended support of a Representatives House of policing superintending od of expects hereafter to make claim which he system so that a candidate state’s election to a seat house with reference before said advantage deprived is not taken of or therein. Adoption of Daschle’s view fair election. 319, 258 N.W. at 281. Ingles, 63 S.D. at totally legislature’s would defeat circuit uphold on to This Court went abrogate legislative man- scheme and prohibition to of its writ of court’s issuance the recount date to this court review Ingles had not com- Ingles on the basis procedures of state. If a defeated procedures for applicable plied with all question regarding has a candidate contest. of his election commencement ballot-counting proce- correctness of the Daschle, In Thorsness v. race, congressional only his dure his (S.D.1979) ], Thorsness, I Leo [Thorsness procedure. The recourse is the recount opponent for the Daschle’s defeated Tom step application an final for a candidate is pe- Representatives, House United States to this court. To for a writ of certiorari from this for a writ of certiorari titioned deprive him deprive him of this is to of his em- procedures the recount Court to review statutory standing ques- right and his Daschle ployed by -several recount boards. voting process.... accuracy of the tion the on the quash the writ moved to dismiss and post-election long as a state court’s [A]s United States Constitution basis that under impede independent procedures do not I, House of § the United States Article election results determination of the had the final and exclusive Representatives Congress, there is no reason United States of its jurisdiction to determine the election why protect and enforce a state members.4 rejecting the notion again Once judi- procedures through post-election its from judiciary is foreclosed involve- that the agree. possibility The cial review. We disputes by a constitutional ment in election Congress may to make its own decide body the granting to a provision apart from investigation and determination elections, judge the returns power to court and the judgment of the state members, this Court qualifications of authority Congress has the final fact that following pertinent observations: made the consti- do not to make such determination granting motion to effect of Daschle’s of state a bar to the enforcement tute judicial preclude dismiss would be legal procedures designed to insure i.e., procedure, of a recount review outcome of its elections. elections, holding political in a manner Therefore, to dismiss the Daschle’s motion agree in this state. We cannot quash the Janu- petitions and to light Thorsness holding of the United with such III, pertinent Thus, providing § during 9 in contrary tution Article defendants' assertions that, matter, Congress] part shall be the separation powers [of "Each house hearing on this elections, qualifications judge returns and clearly that the in Thorsness I albeit was in issue anything, we view the judiciary members[.]” own If separation of its was between the state powers the state separation issue between Representatives un- the United States House of I, Congress judiciary in Thors- § and United States 5 rath- States Constitution Article der United separation of acute judiciary ness I as more than and the state er than between the state powers case which involves issue in the instant representatives Dakota under South house of and, legislature III, judiciary and the state § vein it is the state 9. In this Constitution Article therefore, I, separate levels of not concern does Article that United States Constitution notable government. virtually § Dakota Consti- is identical to South 5,1979, 12-21-47, 12-21-48, ary count -writ certiorari issued boards. Supreme amplified 12-21-2. As the Court court is denied. Roudebush, supra, integral a recount is an I, Thorsness at 168-70. N.W.2d part process. necessary of the electoral It is These authorities lead to the conclu- guard against irregularities to errors judiciary may that sion exercise a limited tabulation votes and verifies the accu- jurisdictional legislative role election dis- racy of election results.6 I, putes.5 In Thorsness we defined role only logical [¶ 20] It is that such re judicial power as the review of recount sponsibilities imposed upon judiciary. be procedures. charge police It is our Olson, supra. legislature See The not is superintend system the state’s election so normally general in session when the election advantage that candidates are not taken of or Consequently, is held. considerable confu deprived required of fair elections. We are delay sion and would result if the above procedures designed to enforce state in- superintending responsibilities were borne legal sure the outcome of elections. It for is exclusively by legislature.7 purposes legislature spe- these has cifically empowered this Court to review re- jurisdic- This is not to overstate the procedures judicially appointed count re- reviewing tion of this Court in recounts. The conclusion, regard pursuant 5. As much has been made to these races to SDCL ch 12- However, of the failure of constitutional amendments in clearly 22. this would have exceeded explicitly permit- 1974 and 1976 that would have jurisdiction of this Court as a "contest” re- legislature judiciary ted the to vest in the lates to a determination of the election. SDCL power to determine contested elections. See above, 12-22-1. As outlined this Court has no 1, 7;§ 1974 S.D. Sess. L. ch. 1975 S.D. Sess. L. power any under the constitution to make final Const, Ill, § ch. 7. See also S.D. art. Histori- regards determination of the election as who will argue cal Notes. Defendants failure of these power legisla- be seated. That remains with the clearly peo- amendments reflects the will of the III, ture under South Dakota Constitution Article ple judiciary legisla- that the not involve itself in recount, however, § only 9. A is addressed to the difficult, disputes. tive election We find it how- correct determination of the true and actual ever, any to draw conclusion as to the will of the count of the ballots cast. SDCL 12-21-1. people from the failure of these constitutional recount, therefore, Duties in connection with a regarding amendments. The amendments deter- are more in the nature of a ministerial or admin- legislative mination of contested merely elections were judicial istrative function than a or determinative part one of one section of some seventeen function, particularly legislature where the re- separate substantially sections that would have power tains the final of determination. See rewritten all of Article III of the South Dakota Roudebush, (court supra duties in connection dealing Legislative Depart- Constitution with the with a recount be characterized as ministe- Accordingly, impossible ment. it is to ascertain administrative); Rank, Healey rial or v. 82 S.D. people concerning precise the intent of the (1966)(duties 140 N.W.2d 850 of a recount proposed sections amendments that the Moreover, board are ministerial in nature and it has no people rejected. to the extent the functions). Thus, judicial quasi-judicial plain- proposed amendments demonstrate a belief clearly judiciary attempting bring tiffs currently power erred in does not hold the their elections, legislative proceedings determine contested contest do before this Court and it was disagree. As the balance of our decision on for that reason that this Court’s writs of certiora- demonstrates, jurisdictional issue explicitly the final ri were limited to a review of the re- power clearly ap- of determination lies with the pursuant proceedings count to SDCL ch 12-21. plicable legislature house of the and we do not provisions of SDCL ch 12-22 are not in presume to invade it. Unlike conflict with this determination. certain contests, legislative other election election con- tabulating procedures 6. The inconsistent at issue pursuant tests must be instituted to SDCL 12-22- Fryslie, in # ¶ discussed at Kazmerzdk nothing 26. SDCL 12-22-2. There is in SDCL herein, seq. aptly impor- 55 et demonstrates 12-22-26 which would indicate that a contest tance of this function. provision pro- instituted under that a court fact, ceeding. In SDCL 12-22-27 which deals vein, In that we note a dearth of affirmative depositions legislative election contests equitable legislature remedies available from the requires depositions to be filed with the Sec- irregularities process. Even retary of State rather than the clerk of court. procedure contest outlined in strongly This is indicative that the election con- vague SDCL 12-22-26 and 12-22-27 is procedures obscurity. test shrouded in some outlined SDCL 12-22-26 and Plaintiffs errone- ously attempted jurisdiction proceedings to invoke the 12-22-27 relate to contest before legislature Court to hear the “contest” filed with and not court. reasons, foregoing deny For the we authority [¶ 23] this endeavor limits our quash proceed and Ingles, the defendants’ motions to clearly supra. When outlined irregulari- Capitol purported the in Janu- review of legislature at with our the assembles may appear and errors of votes ary, any before either ties the tabulation person any rights presented by plaintiffs.9 to his and title house and assert procedures with in accord the seat therein legislature. If such a prescribed by the STANDARD OF REVIEW asserted, house whether or not the claim is to proceedings In certiorari re it, proof require, what it will

will listen to view election recounts: investigation it will make and what what may completely court all of review concerning finally come to decision it will proceedings had to such recount relative as entirely exclusively and claim are matters certifications, by such shown correct is determine. If a claim house to any errors made in the determination of presented, and the house sees fit to investi- ballots, questions validity as to and in it, gate power can doubt the of that no one returns, any computation of errors witnesses, interrogate house to summon which be from such manifest certifica- relating to to order and ballot boxes ballots tion. brought in to the contested seat open to for examination and and examine Accordingly, 12-21-57. this SDCL Court’s pur- same or a committee out for that send novo, Duffy scope of review is de v. Morten pose. son, (S.D.1993), 497 N.W.2d since construing a review of a ballot involves docu Supreme men As Court [¶22] ment, question of law which does re Roudebush, supra, judiciary tioned quire weigh the Court evidence. Thors usurps only functions if it frus the above (S.D. Daschle, 590, 592 v. ness N.W.2d ability indepen trates house’s make an 1979) II [Thorsness ]. judgment. dent final Recounts and review Following review, judgment [¶25] “[t]he however, recounts, prevent do not house each as by the court shall be such rendered evaluating independently from the election required by applied as deems the law court any the initial Each more than count does. present- to the facts disclosed the record reject accept apparent house is free ed, pronounce the court and shall what count, and, chooses, winner in if it either correct the election in- deems the result of I, conduct recount. In Thorsness we its own 12- volved as shown the record.” SDCL jurisdic made lack clear this Court’s 21-59. tion to the final determination of dictate Our of a recount election.8 review McIntyre # 19898 v. Wick merely judgment proceeding in such a complied A. Exhibit [¶26] Whether It each constitutes evidence. remains with requirements. absentee ballot duty of perform house its constitutional Contest determining sit court can In In Matter Election as who shall and this (S.D. Effmgton, 462 express opinion on the outcome of that to New N.W.2d no 1990),we said: deliberation. Noonan, legisla- carry superintending

8. In 76 S.D. out function Wame (1956), of two 74 county this Court reviewed the action itself mandated in its enactment ture boards in a state race. recount legislature 12-21—47 and 12-21-48. If Wame To extent that can be construed involvement, may certainly displeased it with our authorizing judiciary to the issuance of direct repeal provisions these and avoid "constitu- election, hereby it is overruled. certificate of perceives Our crisis” it to exist. decision tional however, is to harmonize and herein intended argument, During counsel for the defen- oral statutory give and constitu- effect to all current specter of a cri- dants "constitutional raised provisions required tional as is rules engage reject if in such a We sis” we review. Volk, interpretation. supra. See construction the reason decision makes notion for our by defendants accom- No construction offered legislature’s this mat- clear the determination of plishes task. review, conducting merely ter is In final. our 358 Locken,

In Larson desiring [Larson 262 [a]n N.W.2d absentee voter to vote (S.D.1978)], 755 apply person charge this court noted that mail to the in purpose voting the the for absentee statutes is election an absentee ballot. The application request to allow voters who are or shall be made in unable attend writing polling place day signed by applicant the on oppor- the vote, fraud, voting precinct, tunity prevent place voting state his reasonably residence and reason for which the ballot prompt achieve a determination requested. is Further, of the result of the election. held that it policy was not the of the law to receiving After the absentee ballot and mark- disfranchise voters of an [sic] because elec- ballot, ing the place “[t]he voter shall mistakes, negligence,

tion official’s or mis- envelope provided voted ballots in the return conduct. envelope. sign and seal the The voter shall the statement on envelope.” the return voting Absentee ballot laws are considered returning SDCL 12-19-7. Prior to the ab- mandatory. person sentee ballot to charge of the rule, general statutory As a di- election, sign the voter must the self-execut- respect rections to the voter with to the ing envelope affidavit on the return which time making applications and manner of states ballot, for an absentee the manner of I,_[voter]_, penalty imper- under same, marking taking of the (5 sonating registered years voter im- affidavit, prescribed and the return of prisonment $5,000 fine), I state that ballot, affidavit, together with the registered am a precinct, voter coun- regarded are mandatory and strict ty, and state named on the front of this compliance required. therewith is envelope, and that I voted the enclosed Id., AmJur2d, (citing N.W.2d at 755 Voter]_ _[Signature ballot. Brown, § (1966))(citing Elections statutory ARSD 5:02:10:05. These and ad- Co., [Brown v. Dakota Public Service provisions require ministrative voter (1941)]). S.D. N.W. sign twice, in making application once for the Legislature The South specifi- Dakota has again absentee ballot easting after cally spoken on provided this issue. It has ballot. through SDCL 12-19-34 that it inappro- Upon receipt ballot, of an absentee priate for informalities to invalidate an person charge of the election must election. provides: SDCL 12-19-34 record the voter’s poll- name the election informality No mere in the matter of book after confirmation that “[t]he written carrying or executing provisions out application and signed statement were both chapter of this shall invalidate the elec- by the voter.” SDCL 12-19-10. When tab- tion rejection or authorize the ballots, ulating absentee the election board thereof, returns provisions and the carefully compare shall the statement on chapter liberally shall be construed the reverse side of the official return en- purposes for the expressed herein or velope with application the written re- intended. ceived from charge the officer in Although voting absentee ballot laws are opening election without breaking or mandatory, considered the violations seal of envelope. the return If the board here do not mandate that this election is satisfied that the ballots received were Here, be set aside. the absentee voters voted appears voter whose name on substantially complied with the absentee the statement registered and that he is voting requirements, informally. albeit precinct previously and has not voted procedures [¶ 28] The procuring, voting for precinct election, in that they at the shall and tabulating an gov- absentee ballot are enter poll- the voter’s name on the election erned and, statute. SDCL 12-19-2 sets forth opening book after envelope with- requirements application opening, for an ab- out unfolding examining provides, sentee ballot and in pertinent part, contain, envelope may ballots the affix to substantially complied the ab- deposit voter stamp and the official the ballots legal laws. Exhibit 37 is a proper in the ballot box sentee voter the ballots prescribed in not the manner This determination does count the ballots ballot Wick.10 of by gain board elections. in net or for either candi- the state result loss date, was as a vote for as the ballot counted SDCL 12-19-47. in the recount total. Wick 37 is return Exhibit an official [¶30] and 33 B. Whether Exhibits 32 [¶32] voter The statement of absentee envelope. to envelope were invalid due extraneous marks. printed of the contains on the back signature Sta the of the voter. purported duty It is the of the courts and [¶ 33] appli envelope of the is the pled the front to “ carry out judges to ‘determine and signed purportedly ballot cation for absentee that intent of the elector when satisfied the 12-19-47, the by voter. Under SDCL express has to such the elector endeavored open envelope or did not election board by prescribed by manner law or intent that due to determination count the ballot upon directions found the ballot. signature not the same. required was Woods, 1, 2 Stellnerv. board, however, en opened the The recount Fletcher, (S.D.1984)(quoting 36 S.D. Ward v. the dis velope and counted ballot over (1915)). 98, 103, 153 N.W. member of the three member sent of one signature that on the board believed who provides: 12-20-7 [¶ 34] SDCL necessarily the vot envelope was ballot Any part or from which it ballot a ballot A objected counting to the ballot. er’s and impossible to the voter’s is determine envelope placed was in the copy of this ballot void not be count- choice shall be and shall original taped shut. The which was then complying ed. When marks stamped with official ballot ballot was inclusive, 12-18-21, on a §§ 12-18-16 precinct in with stamp and mixed the other sufficiently plain gather there- are ballot ballots. of the intention and part from a voter’s alleges placed be- marks on the ballot McIntyre irregularity an are no [¶ there 31] duty contrary § 12-18-22 it signatures on ballot shall be tween the the absentee part. such application judges the absentee statement of election to count voter physical on 37. After examination Exhibit provides further ARSD 5:02:16:16 [¶35] signatures signatures, we conclude the judges to duty be the that shall “[i]t difference, however, This are not identical. the voter’s best efforts determine use their writing may simply be a result the voter marking section This intent ballot. applica- signature her on the absentee ballot liberally by judges to shall be construed printing tion her name on the absentee person’s is counted.” that each vote assure Additionally, voter the record statement. statutoiy and Applying 36] on the these any signature [¶ void evidence the in give effect to fraud- rules statement was false or administrative absentee voter (cid:127) voter, that Exhibits we we conclude ulently Absent evidence tent of executed. law, are unable find, are invalid because we a matter of that both 32 and 33 cannot voter; based on the voters’ intent signatures not those of the same to determine are placed marks11 on the ballots. therefore, required that extraneous we are to conclude precise on the bilily cross or check properly as a to make was also counted Exhibit 37 10. Judy ballot. Rost. vote for appears to have been Any mark which other provides voter “[n]o 12-18-22 deliberately placed the voter on the ballot upon it place which identify mark his ballot easily shall the ballot is could and which mark, voted be identified as the one afterwards in the identifying which ballot him.” judges such a mark opinion contains be counted. provides: shall not further ARSD 5:02:16:17 awith mark identifying ballot has been marked Unless the be construed as an No mark shall person a third to determine opinion judges to enable it could so as if in the mark voter, the by particular was marked appeared normal the ballot on the ballot in the have v. identifying Church mark. See voting through ina- is not an mark inadvertence course Exhibit 32 indicates darkened The matter of erasures has been the subject variety ovals in front of of a the names of candidates of law South Dakota. First, Heltibridle, McIntyre, placed A Wick Rost. line was S.D. Woodruff (1916), through 156 N.W. McIntyre’s the oval in front of Court held that name. erasures impossible identifying It is constituted an mark to determine from the addi which select, invalidated a ballot. The tional line it next discus- whether was intended to sion of Therefore, adoption erasures occurred change or obliterate choice. concerning the administrative rules elections. impossible find it to determine the voter’s 5:02:16:17, 1977, adopted specifi- ARSD as in intent and the ballot must be invalidated. cally provided that erasures were not identi- in This determination results a net loss of fying marks which would serve invalidate one vote for Wick. Then, 1979, a ballot.13 in we were called Similarly, upon apparent Exhibit 33 also con to consider the contradiction tains an prevents extraneous mark which holding between our in and the Woodruff newly-adopted determination of the voter’s intent. The administrative rules ARSD II, in Party ovals front of both title 5. Thorsness the Democratic 285 N.W.2d at 591. In II, Republican however, Party straight Thorsness unnecessary it was tickets specifically apparent were darkened. The oval in address front of the contra- Republican Party authority has two diction of on through lines it. erasures because the ballot, subject dispute After review of impossi validity we find it of that concerned the which, either, ble to party determine if of the governing of the administrative rules elec- whole, votes the tions specific provisions voter intended to as a not the cast and the ballot must ARSD Following be invalidated. This determina 5:02:16:17. Id. our decision II, tion does not in in gain result a net or Thorsness loss for the administrative rules candidate, either as specific the ballot was not count amended to remove the exam- in ples ed the recount total. of what was considered to be a non- identifying Determining mark.14 validity 4, evidencing [¶ 39] C. Whether Exhibit of Exhibit 4 in requires the instant case us to erasure, legal is a ballot. apparent address the contradictions authority concerning erasures at this time.

[¶ 40] Exhibit 4 evidences an erasure by the voter. The ballot indicates mark in overriding [¶42] The consideration oval McIntyre before and Democrat Dick in determining validity of a ballot is the Casey. Additionally, the oval ability before Wick to determine the voter’s intent. Stell partially ner, was marked and 2-3; erased.12 355 N.W.2d at SDCL 12-20-7. It Walker, 450, 452, 198, 10 S.D. provided, N.W. any Unless otherwise letter of the (1898)(stating lay alphabet. "[i]t would be difficult to down any permit rule that would provided, the voter any himself Unless otherwise numeral. ballot, identifying from attempt his own following identifying are not marks and futile.”) to do so would be shall be counted: Tears, erasures, stains, smudges, coffee differ- Physical examination of the ballot indicates pencil, voting ent colors of ink or for two attempted the voter to erase the mark in the oval office, candidates for one holes in the ballot. attempted in front of Wick’s name. The erasure by physical markings is evidenced consistent currently provides: 14.ARSD 5:02:16:17 edge pencil with the metal of a standard eraser. No mark identifying shall be construed as an opinion judges mark if in the of the it could adoption, 13. At the time of ARSD 5:02:16:17 appeared have on the ballot in the normal provided, pertinent part: voting through course of inadvertence ina- or No identifying mark shall be bility precise construed as an to make a cross or check on the opinion mark judges when in the of the it ballot. appeared could have Any on the ballot appears in the nor- mark which to have been deliber- voting through mal course ately placed inadvertence or on the ballot the voter and inability precise to make a cross or easily identify check mark which could the ballot is an following mark, on the identifying ballot. The identifying are ballot which in the marks and shall not be opinion judges counted: contains such a mark Any name written on the ballot. shall not be counted. Legislative require District Dakota to disen used policy of South is not the right completely blacken oval in front their to vote. voter franchise citizens of the choice. ARSD 5:02:06:01.02. Ballots long “It been N.W.2d at 439. has Duffy, 497 requirement with this marked accordance duty it is in this state that the rule any identifying are to be and absent marks judges to ‘determine and and election courts legal ballots. 12-20-7. counted when carry out the intent elector has endeavored elector satisfied Exhibit a small [¶47] indicates manner prescribed in the express such intent Republican in the oval in front mark ballot^]’” upon found directions law straight argues that this Party ticket. Wick lner, at (quoting Stel straight party vote for the mark constitutes a Fletcher, 153 N.W. v. 36 S.D. Ward Party and a vote for Republican therefore vein, (1915)). every In must effort disagree. We Wick. true and be to determine voter’s made A voter’s intent is determined marking his Id. See intent ballot. actual ballot. by the marks on the Vallier 12-21-1. also SDCL Brakke, 343, 354, S.D. N.W. an An is extraneous [¶43] erasure (1895). the Neither election officials nor intentionally by the made mark on a ballot may go beyond the actual court voter’s deliberate marks which voter. Unlike other Id. to determine the voter’s intent. marks question the may a as to intent create Exhibit 22 Our examination of indicates voter, the voter’s inten an erasure indicates appearing mark in the oval in front of the the mark, original even tion remove the Party straight does not Republican ticket incomplete. there though the erasure is We appearing the comply with the directions on erasure, clearly conclude that an when fore completely next to blacken the oval ballot identify not incomplete, is an discernible but party or for which the voter the candidate a if it is ing mark which invalidates ballot the mark consistent to vote. Nor is wishes intent.15 possible by to determine the voter’s placed on the ballot the other marks in present the small mark the voter. Unlike clearly the is discerni- Here erasure 44] [¶ Party Republican in front of the the oval incomplete. An examination of the is ble but column, completely the the voter darkened no as to the intent of question leaves ballot in in front of other candidate’s names oval mark front of the in voter remove the cast, as individual votes were as well which for name. Exhibit 4 counts as a vote Wick’s initiated amendments and the constitutional not re- McIntyre.16 This determination does the Further included on ballot. measure candidate, gain for either in a net or loss sult more, darkened in front the voter also ovals as a for McIn- as was counted vote the ballot presi only Republican candidate for the tyre in the recount total. only can Republican and the dential electors D. Whether Exhibit constitutes Utilities for Public Commission. didate party a ticket vote. contrary to marks an intention These are counted, straight party ticket. The voter’s may be a Before a vote 46] ballot [¶ in the local not to for candidates sufficiently plain from choice vote choice must be voter’s imply county offices not intentionally by made does markings the vot- straight party in ticket in a choice to vote a 12-20-7. The manner which a er. SDCL Rather, just likely the prescribed by it is as delegate is those races. his vote voter Republican appearing in front rule includes mark and administrative statute straight of hesi entirely Party ticket is result option to select candidates based by See the voter. 12- tation or inadvertence political party affiliation. SDCL on their Church, ballots, 74 N.W. at 10 S.D. at such as those Optical scan 18-18. identifying as specifically erasures cognizant ARSD now list the amendment to 15. We are on the issue. but rather is silent mark from the list which removed erasures 5:02:16:17 being markings specifically as iden- noted not However, properly a vote for counts as tifying 16. Exhibit also marks. ARSD 5:02:16:17. Casey. administrative rule does note the amended (holding inadvertently top party a vot- at the column and marks made the circle ballot). name(s) square preceding do Exhibit 22 is not invalidate also marks the er printed valid This determination does not ballot. of one more candidates under in gain party straight result a net or loss for either candi- another column so to vote a date, spe- as the ballot does not cast a vote for party except ticket as to all races those Id.; candidate. cifically either voter. marked SDCL See also ARSD 5:02:16:24. 12-18-20. The of our of these [¶49] effect review give one ballots is Wick net loss of vote. procedures tabulating 53] The for [¶ Accordingly, received candidates have both party straight votes and crossover votes are 4,191votes.17 12-20-8, in provides: forth which set # Fryslie 19899 Kazmerzak v. votes, judges, counting in shall endeavor to the intention of the record challenges [¶ 50] Kazmerzak the inconsis- voter. Should there be a mark on the straight tent methods ballots which with a at ballot the circle the head of only party vote and mark in front of one of column, judges hold shall the intention party candidates voter to vote for all be to candidates Legislative counted District 6 asks in the column which is over the mark Court to determine the correct method placed, unless should there be mark counting such ballots. Such a determina- square at the left the name of some requires statutory interpretation tion candidate other column some on SDCL 12-18-18 and SDCL 12-20-8. judges ballot. The shall then hold Statutory interpretation [¶ 51] intention of the voter to be to vote the for question law, accordingly, of and our a re or candidate candidates before whose Gossman, view de novo. In re Estate of mark, placed he a name has and all for ¶ 124, 6, (citing 1996 SD 555 N.W.2d 102 in candidates the column over which has he State, Hosp. Valley Ass’n Sioux v. 519 mark, placed except a for the or candidate 334, (S.D.1994); King N.W.2d v. 335 John placed candidates where a mark has been Co., 619, Hancock Mut. Ins. 500 N.W.2d Life column; except, also, in other some that (S.D.1993)). interpret 621 “We statutes in where there is more than one candidate accord with River intent.” Fall the same column the for same and office Revenue, County v. Dep’t South Dakota voter placed the has a mark in square the ¶ 13, 620, 106, 1996 SD 552 624. N.W.2d left of at the the name of a for candidate Legislative plain, intent is “derived from the office in that some other column than other ordinary statutory popular meaning and mark, placed one over which he has a Whalen, language,” v. Whalen N.W.2d judges shall hold intention 276, (S.D.1992), and this Court “must only voter to be to for vote the candidate legislature assume that the meant what the or candidates for office before whose says give statute and therefore its words and placed he name has mark. a phrases plain meaning a and effect.” Nilson (giving See also ARSD 5:02:16:24 example Clay 598, County, 534 v. N.W.2d setting a crossover ballot forth and the meth- (S.D.1995)(quoting Caldwell v. John Morrell tabulated). byod which it should be Co., (S.D.1992)). & 489 N.W.2d 54] [¶ SDCL 12-18-18 further as instructs mind, proceed [¶ 52] With rules in these we procedure tabulating for bal- crossover governing examination of the statutes provides, pertinent part, lots and casting tabulating involving ballots a straight party may vote. A voter east a crossover shall [a ballot] be counted as straight party by “mark[ing] presidential vote his ballot cast for all or the candidate top in the party circle at the of a column.” party electors named under column marked, may SDCL 12-18-18. A voter a except also vote which has been so as to the ballot, whereby crossover the voter marks or office offices of a candidate or candi- III, Mortenson, ing Duffy § In elections controlled Article lots. (S.D.1993). SDCL 12-21-43 would break a tie draw- vote requires at the specifically marked in a ballot marked presidential electors or dates top party A mark in another col- column be counted a vote column. as another as for the candi- party be counted cast umn shall for all candidates in that unless the presidential electors or candidates date “in voter marks some other column on such mark name or names whose beside Furthermore, legislature has ballot.” placed. have been specifically provided procedure a voter a for conjunction to cast crossover ballot in with a question do not evi- The ballots [¶55] ' 12-18-18; party straight a vote. SDCL voting, straight but party or crossover dence provision has at vot- SDCL 12-18-20. No attempt bullet an unsuccessful rather party voting straight as that same column for bullet within a ing within the been made tabu- top of the ballot. When marked at party vote. votes, the counties

lating these bullet varying proce- 6 followed Legislative District Therefore, we hold that under 58] [¶ count- Codington and Miner counties dures. 12-20-8, both candidates only for the as vote the bullet vote ed party should be credited with same voter, by the specifically marked candidate places top if mark at the vote the voter party vote essentially overriding straight in front party and makes a mark column Clark, Hamlin, legislative race. for the only party’s legislative candi one of vote counties counted the bullet Kingsbury by Codington method dates. The used par- for candidates under as a vote both counting bal disputed Miner counties the ballot. top marked at the ty column lots in error. was provides that a mark 12-20-8 56] SDCL [¶ Accordingly, by interim order [¶59] top party of a column constitutes at the Codington directed the recount boards unless party for all candidates vote the ballots consis- Miner counties recount “in marks name of a candidate voter certify opinion tent the correct- on the ballot.” After other column some Court, tally Dakota to the South ed column, only marking top party of a Representatives, and other House of invoke the in another column crossover votes agency required law forth- official or ability particular in a to bullet vote voter’s 9, January 12-18-18; later 1997. Ballots with but not than SDCL 12-20-8. race. top party Upon receipt column and of the certifications from Cod- marked at the only in one the marked front of of this Court shall ington and Miner counties party of do not consti- that same pursuant candidates 12-21-59. judgment to SDCL enter a cross over to another column. tute GILBERTSON, plain reading of 12- 57] A SDCL

[¶ KONENKAMP [¶ 60] that, mark in some JJ., reveals absent a 20-8 concur. column, top voter’s mark at the of the other JJ., AMUNDSON, [¶ 61] SABERS supersedes other party column

the dissent. in that column. 12-20-8 party SDCL marks approximately equally, black voting and one not them is the result of a voter

18. A bullet vote candidate, voting him for allowed. with all the blacks number of candidates for the maximum only example, white a voter votes for one else. result is that each For when and no one The the voter vote and the a race which receives about 300 votes candidate candidate candidates, up voter has cast a to three 400 black for receives votes. The black candidate commonly strategy is used probably vote. This most bullet won a This has seat. [candidate] Thornburg minority candidates. See single-shot to elect vot- technique [or bullet] is called 30, 2752, Gingles, 92 L.Ed.2d 478 U.S. 106 S.Ct. minority voting ing. Single-shot enables a (1986). voting process has been of bullet 25 The at-large seats if concen- group win some it described follows: of a limited number vote behind trates its majority is and if the vote of candidates and 400 blacks a town of 600 whites Consider among the candidates. divided at-large to choose four council with an election 156, States, 446 184 City United U.S. Rome v. cast voter is able to four members. Each of 19, 1548, 19, n. 64 L.Ed.2d S.Ct. 1565 eight n. 100 Suppose are white candi- there votes. 119, 19(1980). dates, split among n. votes of the whites SABERS, (dissenting). interpreter as ultimate of Justice Court Constitution. requires 1. The constitution [¶62] political question A is one Legislature judge to be the of election of cogni- which courts will refuse to take of returns its members. decide, zance, or to on of account their III, plain § A review Article character, political purely or because their Dakota South Constitution demonstrates determination would involve an encroach- ambiguous: it is not “Each house shall be the upon pow- ment the executive or judge qualifica- election returns and ers. its tions of own members.” constitution The question “Political holds doctrine” Legislature jurisdiction in the vests certain issues not should be decided dispute. It appropriate decide this is not courts because is their resolution commit- judicial despite purported legisla- review government ted to another branch of delegation duty tive to this court capa- because those issues are and/or 12-21-48(1). objective reading An judicial ble ... resolution. majority opinion the cases relied on (6th Dictionary Black’s Law 1158-59 provide, expressly impliedly, does not au- (citation ed.1990) omitted). thority for the Supreme South Dakota Court explained The Court this further in non-binding, review recount and issue a States, 224, Nixon v. United 506 U.S. opinion. essence, advisory dispute itsAt 732, (1993). S.Ct. L.Ed.2d Nixon nonjusticiable controversy politi- here is a —a concepts makes clear the two cannot be con- beyond jurisdic- question cal our —which separately; judicially sidered “the lack of tion to consider in form. manageable may strengthen standards Supreme [¶64] United States Court textually conclusion that is a there demon- unequivocally has political ques- ruled that strable commitment to a coordinate branch.” jurisdiction judicial 228-29, 735, tions are outside the Id. at at 113 S.Ct. 122 L.Ed.2d Carr, decision makers. In Baker v. at U.S. 186, 691, 82 S.Ct. 7 L.Ed.2d apparent language [¶ It is from 66] (1962), explained the Court has what become III, § Article 9 that textually issue is determining the definitive test for whether Initially, examining committed. the lan

justiciable controversy exists: guage, we note that the framers the con granting stitution used the word “shall” in We have said that “in determining Legislature authority judge question politi- whether falls [the within members’ returns. When “shall” is category, question] appropriate- cal operative statute, given verb in it is system government ness under our of of “obligatory mandatory” or meaning. See In attributing finality to the action of the Int'l, Inc., 229,231-32 re Groseth 442 N.W.2d political departments and also the lack of (S.D.1989) Peterson, (citing Person v. 296 satisfactory judicial criteria a determi- (S.D.1980); Linn, N.W.2d 537 Tubbs v. 75 are nation dominant considerations.” The 566, (1955); S.D. 70 N.W.2d 372 2A Suther nonjusticiablity political question aof is (4th § land Stat. Const. 57.03 at 643-44 primarily a separation function of the of ed.1984); Sutton, Statutes, “Shall” Use of powers. Much confusion from results the (1938), LQ J. reprinted Marshall in 1A capacity “political question” label to (4th ed.1985)). Stat. Sutherland Const. 691 obscure the case-by-case inquiry. need for The text provi actual of this constitutional Deciding a whether matter has in plainly sion people demonstrates that the by measure been committed the Constitu- on Legislature authority conferred the the government, tion to another of branch or judge of election returns its members.

whether the action of that branch exceeds committed, authority whatever has been is [¶ Plaintiffs on 67] focus the word “mem- itself a delicate exercise constitutional bers” and assert a that “membereleet” be- interpretation, is responsibility only a of comes a “member” after the individual Manifestly is in of ... this contravention prior the commence- has been sworn January. judicial separation the legislative session in the ment of claim, government. Therefore, they may review departments this court itas relates to because its “action a recount 516, 91, Swig, 223 Mass. 112 N.E. Dinan supersed- are not the member-elect votes for (1916). relating to its by Legislature’s rights the ed III, of Article language The actual [¶ 69] constitution dem- The text the members.” § that 9 of our state’s constitution mandates is that fault with this assertion onstrates the the are to election returns of members be 1) III, clearly § refers to Article two-fold: Thus, judged by Legislature the itself. be- pro- it when “members-eleet” “members” “textually is cause there a demonstrable con- Legislature ... “Members the vides that to a stitutional commitment of the issue coor- they upon official duties enter their before department,” requires political Baker dinate and a “member” refus- oath]” take [shall nonjustieiable the conclusion that this is added); (emphasis ing office the oath forfeits controversy.19 2) that action this court the claim Legisla- by superseded takes not be the will constitution not be [¶70] The can by judicia- Plaintiffs themselves by Legislature ture is contradicted changed or the argue they power “[determine] this court will ry; only people when have won,” yet “Legislature [has] who through has a constitutional amendment. authority ... who should be to determine people The South Dakota estab- seated.” lished the constitution: fallacy, coupled with It is this second policy of South Dakota is State “shall,” mandatory this a which makes people of set South Dakota. This nonjustieiable under Baker and Nixon. issue through principally people done en- advisory this and non- If this court issues constitution, of a ratification of actment ig- or binding opinion, it be modified amendments, and enactment of statutes Legislature. lack of “[T]he nored legislative representatives. through their finality justiciability.” against ... counsels] Mickelson, Cummings v. Nixon, at 113 S.Ct. at 506 U.S. (S.D.1993) (Sabers, J., dissenting). It is L.Ed.2d at 13. constitution, from the clear from the judi- require Legislature] [The cannot proposed two amendments20 failure of gov- department of ciary as a co-ordinate provision which would have constitutional a deci- a trial and render ernment hold empowered Legislature to vest purely must sion which in its nature be leg- judiciary the of contested determination advisory wholly subject or tentative elections, people want the islative retrial, review, revision, inaction. its own Legislature judge of the election to be judicial imposing upon the This would be The will returns of own members. investiga- department government provi- rejecting of this state citizens resulting judg- tion not in a of matter unique that under the consti- sion is evidence ment, par- finally rights of fixing not framed, originally Legislature— tution as ties, ultimately determining a and not state authority to court —has the deter- subject proceeding It would facts. Poppen v. election returns. See mine the modification, suspen- arising in a court to (S.D.1994). Walker, 238, 246 520 N.W.2d sion, by part a annulment or affirmation of Legislature the had Plaintiffs insist legislative department government

the of authority judge delegate to to power the its possess it would definite force. before reason, difficulty by the ma- denced the encountered this there is no need to consider 19. For jority opinion standards. to discern such separate there "a lack of the hurdle of whether is manageable judicially stan- discoverable and Baker, resolving regard significance the 369 U.S. the failure for issue.” to the of dards 20. With 217, 710, judiciary at 686. Even the to allow the at 82 S.Ct. at L.Ed.2d to constitution amend elections, appar- join point, I Justice on it is to contested if we went to consider this determine lacking dissent. here evi- Amundson's ent that such standards are outcome of Supreme the elections of members relies. The United States Court delegate authority clearly question and did that to this court. states that “who is They Legislature nonjusticiable assert that since the has a entitled to be is a seated?” obligation provide constitutional political question. goes to for this The Court then on appellate jurisdiction, court’s also it has the uphold right to of a to exer- candidate authority delegate to this court consti- right cise his to a recount before court- obligation placed upon judge tutional toit appointed recount which commissioners his of its returns members. S.D.Const. is, opponent sought enjoin. had It first Y, § Art. 5. Plaintiffs’ that contention all, noteworthy pointed of that the decision jurisdiction court has the decide these judi- out in detail the distinction between ignores significance issues of consti- nonjudieial cial and functions of the courts. people. tutional enactment provi- Under Indiana statute no there was judicial review, merely sion for for court duty Supreme [¶ “It is 73] appointment commissioners, of the recount Court, not legislature, to determine the nonjudi- which the a decision denominated meaning of legisla- constitutional The terms. So, cial function. assuring while the candi- cannot the scope ture define of a constitu- review, right date his to recount board provision by legislation.” tional subsequent Court in fact previous reiterated its hold- Poppen, (stating 520 N.W.2d at 242 that it is election, ing ... the outcome judiciary, of legisla- function not political being question, justi- was anot ture, scope to define the of constitutional question separation ciable because of the provisions) (citing South Dakota Auto. Club powers provided by the United States Volk, 693, (S.D.1981); v. 305 N.W.2d Constitution. Thorsness wants the five Brice, 710,113 Edge 755, v. 253 Iowa N.W.2d members for court reexamine (1962)). second time the ballots that have been Morgan’s [¶ Justice 74] dissent Thors principal examined and reexamined. The Daschle, 166, ness v. 170-71 every contention as to almost ballot is (S.D.1979), might have been written for this or not whether it bears an identifiable case: presumably mark. These were issues ar- majority opinion calls for an exer- gued and, before the election boards be- futility. cise in yond any question, argued were before the anyone argue How the world can recount boards. Thorsness wants us to be questions won “who the election?” and guess. participat- the court last I have will mutually “who be seated?” are exclu- enough ed in election contests to know the It is purely appeal provin- sive. an futility21 trying to determine whether a quixotic. cial and fatally by ballot was marked the voter or inadvertently by judge, or election clerk Hartke, Let us look perhaps at Roudebush v. et now recount board mem- al., 15, 804, 405 U.S. 92 S.Ct. Lacking divinely 31 L.Ed.2d 1 inspired per- bers. some (1972), on majority heavily which the so ception, guess, it can be no more than a futility present 21. The invalidity of such an exercise determine voter's intent and due to See, example, repeated this case also. disregard extraneous marks in both issues? In deference reasonably plain instructions majority, adequately to the these issues A, absentee voter involved in Issue Exhibit 37. addressed Plaintiffs’ briefs and were not ad ¶¶ Supra Compare print- 26-31. the written and dressed all in at Defendants' stated briefs. As "signatures” ed and determine whether there Morgan: possible precedential Justice "What compliance was even substantial with those in- value gleaned” for future can elections be from structions. futility. City such an exercise in See Boesch B, ¶¶ 32-38, See Issue also Exhibits 32 and (S.D. 1995) (we Brookings, 534 N.W.2d C, compare analysis with the of Issue Exhib "opinion[s] merely purpose do not issue for the ¶¶4, it “every and determine whether 39— establishing precedent”). There was no [was effort made] to determine the voter's true trial, hearing, evidentiary just judg no a to rush marking and actual intent in his as ballot” stated that, intention, contrary ment majority’s to ¶ Likewise, majority opinion. in 42 of the are helpful. could be harmful rather than analysis being applied the same and tests to (“The (S.D.1991) power Governor’s guise made under but it must be advisory require opinion from this court. to an the Su- judicial function of Court n exclusively preme confined to such questions may as raise a doubt in execu- value for fu- possible precedential What department, legislative. in the tive from a gleaned —never can be ture elections otherwise, to it it would be Were we construe 4 from that Exhibit Swan determination great the medium of liable to become County Township or Ex- of Turner Lake (Citation omitted; emphasis add- abuse.’” Precinct of Ham- hibit from Estelline ed)). giving “In effect ... we would be an any of the seven- County, or other lin advisory opinion legislature, to ... exhibits, teen-hundred-plus in fact opinion authority.” an our Id. exceeds It is a fact ballots or not? marked at 827. to be determined question that will have exhibit, case, long so case exhibit ¶ 22, majority opinion 77] In states: [¶ paper ballots are used. I, In made Thorsness we clear Court’s summation, majori- I that the In believe jurisdiction final lack of dictate the quest ty this court on a that has embarked legislative determination a election. large expend extremely amount of will an judgment of a Our review recount and judicial purpose, not unlike time for no proceeding merely evi- such a constitutes joust Quixote riding with wind- out Don per- It remains the house to dence. illusory favor of the Dulcinea. mills duty determining constitutional form its original (Emphasis original; footnotes express no shall sit and this court can who added). Likewise, omitted; is- footnote opinion on the outcome that delibera- presented sue here —the determination tion. not

two contested elections —does omitted.) added; justiciable controversy.22 The It present (Emphasis a con- footnote Legislature thing “advisory opinion,” if requires stitution be one our would —not evidence, only judge merely an the outcome and constitutes would be which court — binding Legislature confer it no to the constitution would on has amendment —but judgment authority pass thing in this binding on It would be another if us effect. reject- accepted this “evidence” had be matter. Legislature based on standards ed jurisdiction no 3. If this court has proce- appellate to rules of review similar final, binding opinion, we should issue However, may to- this “evidence” be dure. none all. issue at tally Legislature in abso- rejected by the majority concedes that we do [¶ 76] The words, arbitrary lutely In other our manner. opinion, jurisdiction to render a real not have nothing “advisory opinion” is more than mere binding on the one that be final and would rejected out of which be “evidence” fact, Legislature. In this court has absolute- Constitution does it hand. Nowhere opinion ly authority advisory to render an no provide say Supreme that the Court should V, 5,§ Legislature. provides to the Article effect, Legislature. In our for the evidence authority part: has to re- “The Governor opinion” “nonopinion.” “advisory becomes quire opinions Supreme upon Court Therefore, non- important we are left to issue a questions of law involved “merely binding, opinion advisory power upon of his exercise executive —one added). Simple logic would (Emphasis constitutes evidence.” solemn occasions.” See Ill, Supreme Court of the re dictate that if the also In Constr. Art. N.W.2d qualifications to be seated in the 90th Con- 22. This case is much different than Powell McCormack, 1, § 89 S.Ct. Court gress. 395 U.S. 2. The See U.S.Const.Art. (1969), Supreme where the Court controversy justiciable L.Ed.2d 491 its res- because found the controversy justiciable to exist over found meaning solely on the of the con- olution turned Powell, elected to serve in United whether impose po- provisions did stitutional unlawfully Representatives, was States House of confrontation between litical undisputed It excluded from the House. was government. judicial branches of duly Powell had been elected and satisfied 368 phasize significance Dakota can not issue a bind- the

State South the will of the See, Moeller, ing, opinion, people. e.g., final it should issue at all. v. none State 1996 SD ¶ 60, 103, 465; City Cummings v. 548 v. Brookings, Boesch 534 N.W.2d N.W.2d See (we (S.D.1995) 848, Mickelson, 493, (S.D.1993); “opin- 850 do not issue 495 N.W.2d 502 Herseth, 642, 658-59, merely purpose establishing Kneip for v. 214 ion[s] the 87 S.D. 93, (1974). precedent”). Accordingly, 102 recount N.W.2d Consistent results directly opinions, accept plain go parties, to the and to the these we must the should Legislature authority judging people consideration in desire of the that the to its by required the election as con- who shall be in returns the determine seated either Ill, § 9. house is in those two stitution. S.D.ConstArt. vested bodies. join [¶ 79] I Justice dis- Furthermore, AMUNDSON’S majority [¶ In 84] the cites sent. 319, 281, gles, at at 63 S.D. 258 for the N.W. proposition implicitly that this Court stated it AMUNDSON, (dissenting). Justice jurisdiction disputes had to resolve similar to [¶ I80] dissent. majority the one opinion at hand. The Proposed III, [¶ to 81] amendments Article quotes language Ingles sup certain from to 9, put sepa § were to on the electorate two However, port significant this statement. in rate occasions 1974 and the 1976. Twice obviously sentence is overlooked or disre people reject of South Dakota voted to these garded, wherein this Court stated: “The empowered amendments which “would have power Legislature of each house of the to legislative judiciary to in the house vest qualification determine election the determination of contested plenary.” own is members therefore Id. Ill, 9,§ elections.” S.D.ConstArt. Histori added). (emphasis “Plenary” means abso (1978); cal Note see also 1974 ch. S.D.Sess.L. Collegiate Dictionary lute. Webster’s New 1, 7;§ 2, § ch. 7. In S.D.Sess.L. other (1974). Thus, held have that words, people rejected opportunity to Legislature’s authority to determine election authority vest Court the to determine absolute, disputes is should remain as who wins a seat in the or I Senate House.23 today.24 such majority attempting submit now majori- [¶ I emphasize 85] further that the judicial make an by such amendment fiat. ty authority no cites to South Dakota majority [¶82] While the contends it is Constitution which directs this Court ad- “impossible to ascertain the intent of the advisory opinions minister on people concerning precise sections of the See, Ill, disputes. e.g., In re Constr. Art. proposed reject- people amendments (S.D.1991) 825, 464 N.W.2d (stating ed[,]” remains, majority the fact authority give advisory Court lacked admits, people voted down the amend- reapportionment); opinion Advisory on re In ment on two different occasions. "Whether 1255, Opinion Concerning H.B. section, there were a hundred sections one (S.D.1990) (stating the Court no had dispute there is no the entire amend- authority opinion agricul- to render an to the ment, including extending the section author- development ture and business au- finance ity to this Court to determine contested elec- thority). Moreover, as stated Associated tions, rejected by people. was twice Schreiner, v. General Contractors we are majority [¶ disregards 83] ofwill examine the Constitution in total. (S.D.1992) people (“in overlooking this state construing N.W.2d rejected provision, amendments 1974 and 1976. Pre- constitutional [the court] must Court, however, vious decisions regard instrument, em- have to the whole ... because, people’s jurisdiction 23. The will is examined as we 24. The issue this case is the Walker, Poppen stated in elections under the Constitution. to a "amendments Chapters apply municipal 12-22 12-21 and provision proposed rejected constitutional but county report- elections as evidenced determining be considered in the intent of Therefore, ed cases. there is no issue in this case (S.D.1994). the framers.” 520 N.W.2d regarding constitutionality of those statutes they apply to these other elections.

369 (1972) 1, J., (Douglas, dissenting provisions, and L.Ed.2d the various to harmonize seek ¶. them.”). Barry ex Cun- U.S. rel. give to all of After possible, part) (quoting effect if Constitution, it is clear 597, 452, entire ningham, 620, one reads the 49 S.Ct. U.S. today is not any we render (1929)). that decision 457, 867, 874 73 L.Ed. and, therefore, anyone cannot be binding on Similarly, “judicial interference” 86] [¶ III, 9,§ Da- of South Article enforced. delegated power expressly with the grants to the expressly kota Constitution Legislature judge the election returns is Legislature duty to determine contested because, in this case at this unwarranted shall of its members: “Each house elections time, know if the final decision in we do not judge of the election returns be the “arbitrary improvident” dispute Without qualifications of own members.” autho- provision in the that no has been taken as of this date. a Constitution since action authority to a delegation of this rizes the if a contention can be made after Even such cannot government, branch acts, coordinate of Legislature it does not come into authority clear statement override this Only play at this time.25 after an individual Legislature; granted to the decision every step necessary to has taken be seated validity concerning the of the elec- this Court appropriate in the house and been denied nonbinding. As stated tions would be position in a right would this Court be Hartke, Roudebush v. interference “^Judicial had decide whether there been denial power’ was to be said with this ‘indubitable final process of law based on the decision due upon showing clear ‘such possible only body. made improvident power arbitrary use is authorized to [¶87] Justice SABERS process due a denial of as will constitute ” 804, 15, 82, join I dissent. 31 state that also his S.Ct. law.’ U.S. qualifica- way By example, case Powell v. elected and satisfied constitutional McCormack, posture, tions to hold office. Given this U.S. 89 S.Ct. (1969), ripeness controversy was limited to a determination of the L.Ed.2d 491 demonstrates phrase judge qualifi- meaning justiciability 'he of such a controver- element I, Powell, § 5 Supreme of its own members” of Article sy. Court cations In United States case, ripe In this after the petition for review the federal constitution. was held Powell’s decision, dispute Representa- Legislature has made a final House of where United States adopted ripe would be for determination of whether there tives had refused to seat Powell membership, excluding constitutional deficiencies that deci- even resolution him'from duly undisputed though he had been sion. it was

Case Details

Case Name: McIntyre v. Wick

Court Name: South Dakota Supreme Court

Date Published: Dec 31, 1996

Citation: 558 N.W.2d 347

Docket Number: None

Court Abbreviation: S.D.