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Thursday, July 9, 2009

State Law Conflicts on Water District Vote: Standard Drops from 60% to 50%+1

Lake Madison resident Steve Kant, an opponent of the proposed Interlakes Water Project (and current Madville Times sponsor), sends along some important information about the upcoming July 18 vote. We were of the impression that Chapter 46A-18 of South Dakota Codified Law, on water project districts, governed the upcoming election. Specifically, SDCL 46A-18-20 requires a 60% vote to create the new district [emphasis mine]:

46A-18-20. Establishment of district--Vote required. If at least sixty percent of the votes cast in an election are in favor of formation of the water project district, the Board of Water and Natural Resources shall by resolution create and establish the water project district and give it a corporate name. Upon filing of a true copy of the resolution with the secretary of state, the district shall become a political subdivision of the state with the authority, power, and duties prescribed by this chapter.
Source: SL 1984, ch 293, § 19.

But wait! SDCL Chapter 6-16-5 on special district elections calls for a majority vote:

6-16-5. Election on question of incorporation in districts containing less than one thousand voters--Election of directors or trustees. If the proposed district contains less than one thousand eligible voters as defined in § 6-16-6, the county auditor shall set a date, time, and location for a meeting to be held within the district to conduct an election on the question of formation of the special district. The date may not be more than sixty days after the appropriate board declares that the application for incorporation is valid. The auditor shall appoint three judges of election, one of whom shall serve as the superintendent, to conduct the election. The vote upon the question of incorporation shall be by ballot which conforms to a ballot for a statewide question except that the statement required to be printed on the ballot shall be prepared by the state's attorney. After the vote is cast and counted, the judges shall prepare a certification showing the whole number of ballots cast, together with the number voting for and the number voting against incorporation, and shall return the certification to the county auditor. If a majority of the votes cast on the question of formation is in favor, an election shall be conducted by those present at the same meeting to elect the initial board of directors or trustees.
Source: SL 1998, ch 36, § 5; SL 2006, ch 29, § 3; SL 2008, ch 35, § 2, eff. Feb. 27, 2008.

Uh oh! Someone dropped the style-and-form veto pen!

How do we resolve these apparently conflicting statutes? From what Steve tells me, the Secretary of State's office originally advised the 60% vote was the correct standard. However, the Attorney General's office has evidently weighed in to say the newer statute, 6-16-5, takes precedence, and the water project district requires only a majority vote to be formed.

Such conclusion also is supported by SDCL 46A-18-14, which explicitly states that "The election shall be held as provided in §§ 6-16-4 to 6-16-6, inclusive," and which also postdates poor, forgotten 46A-18-20. Darn—supermajorities are kind of fun (as Al Franken will soon attest).

Given that the proposed district has 709 eligible voters, advocates of the district just saw their work get as many as 70 people easier. 60% to 50%+1... that's a big difference! So, while someone at the LRC gets out the higlighter, the advocates of the district breathe a sigh of relief.

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