Thorsness v. Daschle, s. 12645

• Decision Date: 27 November 1979
• Docket Number: Nos. 12645,s. 12645
• Citation: 285 N.W.2d 590
• Parties: Leo K. THORSNESS, Plaintiff, v. Thomas DASCHLE, Defendant. to 12652, 12657, 12658, 12660, 12663 and 12679.
• Court: South Dakota Supreme Court

Page 590

285 N.W.2d 590

Leo K. THORSNESS, Plaintiff, v. Thomas DASCHLE, Defendant.

Nos. 12645 to 12652, 12657, 12658, 12660, 12663 and 12679.

Supreme Court of South Dakota.

Nov. 27, 1979.

Steven L. Jorgensen of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for plaintiff.

Lawrence L. Piersol of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant; Michael L. Luce, Sioux Falls, on brief.

HENDERSON, Justice.

This Court has previously decided that it is empowered to conduct a post-election review of the Thorsness-Daschle election to the United States Congress. See Thorsness v. Daschle, 279 N.W.2d 166 (S.D.1979). The review has now been completed. We determine that Daschle won.

Subsequent to our initial decision herein, this Court held a conference with counsel for the parties to narrow the issues presented by this proceeding. Pursuant to that conference, this Court by independent order required counsel to examine all disputed ballots and segregate them into categories in such manner as to eliminate questions not seriously urged with respect to certain ballots, to offset ballots that presented identical issues as to validity, and to segregate ballots into classes or groups presenting identical questions. Counsel for the litigants and officers of this Court executed this function of the judicial review in the courtroom of the Supreme Court and maintained the integrity of the ballots.

Counsel for the parties then submitted to this Court a report and stipulation regarding the results of their extensive examination and segregation of disputed ballots. The substance of this report and stipulation was that there were ten different categories of disputed ballots; that as of June 13, 1979, Daschle had a lead of 105 votes over Thorsness; that there was no longer an issue of the verification on the selective recount petitions; that 275 ballots for each candidate were offset; that there remained 1,114 ballots still in issue; and that there were five counties in which total wards and precincts were challenged in toto because of alleged irregularities. A full and complete written record was preserved by counsel and officers of this Court with respect to each disputed ballot.

Thereafter, in subsequent argument before this Court, counsel agreed that there were only 1,084 ballots, in ten different categories, for this Court to consider, and both counsel abandoned their positions that the entire vote in wards and precincts in five counties were invalid. On August 27 and 28, the Court inspected and voted upon the 1,084 ballots. In this review, the ballots were counted or not counted based upon the majority view of the Court.

There arises in this case the question of whether the Administrative Rules as promulgated are invalid because they allegedly attempt to overrule prior decisions of this Court. In 1974, the legislature created the State Board of Elections and conferred upon it the right to make rules concerning the conducting of elections in this state. SDCL 12-1-5 and SDCL 12-1-9. In 1977, administrative rules were promulgated thereunder.

We indicated in Nist v. Herseth, 270 N.W.2d 565 (S.D.1978), and in Corbly v. City of Colton, 278 N.W.2d 459 (S.D.1979), that the Board's rules were as binding as statutes. We see no reason to hold to the contrary here. The legislature has determined that the Board should have the rule-making power necessary to prescribe forms providing for uniformity of election procedures (SDCL 12-1-9), to promulgate rules and regulations necessary to clarify the procedures for counting and canvassing ballots (SDCL 12-20-52), and to adopt regulations governing the conduct of recounts (SDCL 12-21-6.1). As is true in other areas of statutorily delegated rule-making authority, the legislature no doubt could have spelled out in greater detail the guidelines or standards to be followed by the Board. The fact that the details...