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In the Matters of the Petitions for Writs of Certiorari as to Review of Ballots and Recount to South Dakota House of Representatives
JOHN McINTYRE,
Plaintiff,

v.
HAL G. WICK,

Defendant.

Douglas Kazmerzak, Plaintiff,
v.
Arthur F. Fryslie, Defendant.

South Dakota Supreme Court
Original Proceedings
#19898, 19899

Linda Lea M. Viken
Viken, Viken, Pechota, Leach & Dewell, Rapid City, SD
Attorneys for Plaintiffs.

Scott N. Heidepriem
Johnson, Heidepriem, Miner & Marlow, Sioux Falls, SD
Attorneys for Defendants.

Argued Dec 20, 1996; Opinion Filed Dec 31, 1996


MILLER, Chief Justice
ACTION
[¶1] Plaintiffs John McIntyre (No. 19898) and Douglas Kazmerzak (No. 19899) filed separate petitions for writs of certiorari seeking our review of the recounts in their respective state legislative elections. We issued a writ of certiorari in each case limited to review of the recount proceedings pursuant to SDCL ch 12-21. Defendants Hal G. Wick (No. 19898) and Arthur F. Fryslie (No. 19899) have asked us to dismiss each action and quash each writ, asserting that the South Dakota House of Representatives has the exclusive jurisdiction to judge the election returns and qualifications of its members. For the reasons set forth in this opinion, we conclude that while the legislature has the exclusive authority to finally determine who will be seated in a legislative election contest proceeding, this Court has the jurisdiction to review irregularities and errors in the tabulation of votes in any recount proceeding.
FACTS

#19898 - McIntyre v. Wick
[¶2] In the 1996 general election in Legislative District 12, there were four candidates for two seats in the South Dakota House of Representatives: Democrats John R. McIntyre and Dick Casey; and, Republicans Hal Wick and Judy Rost. The vote tally of the election was: McIntyre 4195 votes 24.73%
Casey  3889 votes 22.93%  
Wick  4191 votes 24.71%  
Rost  4687votes 27.63%  
16962  

[¶3] McIntyre was initially declared to have been elected by a four-vote margin. Wick petitioned for a recount in accordance with SDCL 12-21-12. The recount was conducted in the presence of representatives for both candidates. The results were certified on December 4, 1996, and showed that Wick had been elected by one vote.
McIntyre 4191 votes 24.71% Casey 3891 votes 22.94% Wick 4192 votes 24.71% Rost 4689 votes 27.64%
16963
[¶4] McIntyre delivered timely written notice to Wick of his intention to initiate a legislative contest pursuant to SDCL 12-22-26. Pursuant to SDCL 12-21-47, McIntyre also petitioned this Court for a writ of certiorari to review the recount. This Court issued the writ based upon SDCL 12-21-50. McIntyre disputes Exhibits 37, 32, 33 and 4 while Wick disputes Exhibit 22. (See Exhibits attached to this opinion.)
#19899 - Kazmerzak v. Fryslie
[¶5] In the 1996 general election in Legislative District 6 (composed of Clark, Miner, Kingsbury, Hamlin and part of Codington County), the candidates for two seats in the House of Representatives on the Republican ticket were Joe Lakness and Arthur F. Fryslie; the Democratic candidates were Roger Lee and Douglas Kazmerzak. On November 5, 1996, the election night totals gave a thirteen-vote margin to Kazmerzak:
Lee 6506 votes 32.95% Kazmerzak 4526 votes 22.92% Lakness 4198 votes 21.26% Fryslie 4513 votes 22.86% 19743
[¶6] Fryslie asked for a recount. The recount reversed Kazmerzak's win, changing the tally to:
Lee 6520 votes 33.00% Kazmerzak 4519 votes 22.88% Lakness 4195 votes 21.24% Fryslie 4521 votes 22.89% 19755
[¶7] Kazmerzak, like McIntyre, delivered timely written notice of his intention to initiate a legislative contest pursuant to SDCL 12-22-26. He also petitioned this Court for a writ of certiorari to review the recount. SDCL 12-21-47. We issued the writ. SDCL 12-21-50.
[¶8] Kazmerzak contends that auditors in Kingsbury, Hamlin, and Clark counties counted certain ballots differently than auditors in Miner and Codington counties. The problem arose when voters marked the ballot at the head of a column indicating a straight party ticket vote and also marked the ballot next to the name of one candidate in the same political party but not the other in the section of the ballot devoted to the legislative race. In two counties, only the candidate whose name was marked was given a vote, while in three counties both of the party's candidates were given a vote pursuant to the straight ticket.

JURISDICTION
[¶9] Defendants have moved to quash the writs of certiorari issued to review the recount proceedings and have summarily responded to plaintiffs' contentions by arguing this Court has no jurisdiction whatsoever to act in this arena. We disagree. We hold that while the legislature has the exclusive authority to finally determine who will be seated in a legislative election contest proceeding, this Court has jurisdiction to review irregularities and errors in the tabulation of votes in any recount proceeding.
[¶10] Defendants rely upon the following language from South Dakota Constitution Article III, 9:
Each house shall be the judge of the election returns (1)  and qualifications of its own
members.
Defendants contend the plain language of this provision makes each house of the legislature the exclusive judge of disputed legislative elections and that the principle of separation of powers forecloses any involvement by the judiciary with this exclusive legislative function. However, such oversimplification would require this Court to ignore jurisdiction and authority granted to it under another provision of our state constitution:
The Supreme Court shall have such appellate jurisdiction as may be provided by the
Legislature, and the Supreme Court or any justice thereof may issue any original or remedial
writ which shall then be heard and determined by that court.
S.D. Const. art. V, 5.
[¶11] Here, plaintiffs have specifically invoked this Court's jurisdiction to issue writs of certiorari to review the proceedings of recount boards pursuant to SDCL 12-21-47 and 12-21-48(1). SDCL 12-21-47 provides in pertinent part:
Whenever any candidate is aggrieved by the final determination made as a result of any
recount, he may have the proceedings of such recount board reviewed upon certiorari as
provided by this chapter[.]
SDCL 12-21-48(1) provides:
Original jurisdiction of such certiorari proceeding shall be as follows:
(1) Where the same involves a submitted or referred question voted upon in more than one county, or the nomination or election of presidential electors, United States senator, representative in Congress, member of the Legislature, or any state or judicial officer, in the Supreme Court[.]
(emphasis supplied). We decline defendants' invitation to ignore the responsibilities imposed upon us by South Dakota Constitution Article V, 5 and SDCL 12-21-47 and 12-21-48.(2)  Accordingly, we must reconcile these constitutional and statutory provisions with South Dakota Constitution Article III, 9. See South Dakota Auto. Club, Inc. v. Volk, 305 NW2d 693 (SD 1981)(in construing a constitutional provision court must give regard to whole instrument, must seek to harmonize the various provisions, and must, if possible, give effect to all the provisions). See also State v. Heinrich, 449 NW2d 25, 27 (SD 1989)(this Court will uphold the statute unless its unconstitutionality is shown beyond a reasonable doubt); In re Certification of Question of Law (Elbe), 372 NW2d 113, 116 (SD 1985)(statutes are presumed to be constitutional).
[¶12] We agree with defendants that ascertaining the "plain meaning" is the primary component of constitutional interpretation. See Poppen v. Walker, 520 NW2d 238(SD 1994)(Supreme Court has right to construe constitutional provision in accord with its plain meaning). However, many courts have wrestled to define the precise limitations imposed upon their jurisdiction by "plainly worded" constitutional provisions empowering a legislative body to judge the election and qualification of its members. See, e.g. , Annotation, Jurisdiction of Courts to Determine Election or Qualifications of Member of Legislative Body, and Conclusiveness of its Decision, as Affected by Constitutional or Statutory Provision Making Legislative Body the Judge of Election and Qualification of its Own Members, 107 ALR 205 (1937).
[¶13] The United States Supreme Court grappled with this issue in Roudebush v. Hartke, 405 US 15, 92 SCt 804, 31 LEd2d 1 (1972). Hartke won election to the United States Senate from Indiana and his opponent, Roudebush, filed a petition for a recount by a judicially appointed commission. Hartke sought a federal injunction against the recount on the basis that it would be prohibited by Article I, 5, of the Constitution of the United States which provides in pertinent part:
Each house shall be the judge of the elections, returns and qualifications of its own members[.]
The injunction was granted and the issue was appealed to the United States Supreme Court which held:
Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount ... . A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, 4.
It is true that a State's verification of the accuracy of election results pursuant to its Art. I, 4, powers is not totally separable from the Senate's power to judge elections and returns. But a recount can be said to "usurp" the Senate's function only if it frustrates the Senate's ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.
...
For the reasons expressed, we conclude that Art. I, § 5, of the Constitution, does not prohibit Indiana from conducting a recount of the 1970 election ballots for United States Senator.
Roudebush, 405 US at 25-26, 92 SCt at 810-11, 31 LEd2d at 11-12.
[¶14] Closer to home, the North Dakota Supreme Court has also upheld the jurisdiction of its courts to act in disputed election cases notwithstanding a constitutional provision identical to South Dakota Constitution Article III, 9. In State ex rel. Olson v. Bakken, 329 NW2d 575 (ND 1983), 526 ballots in an election precinct were not counted because of the erroneous labeling of some of the voting machines in the precinct. The rejection of these ballots threw open a race for the state house of representatives where the purported winner's margin of victory was less than 526 votes. Pursuant to state statutes, voters brought a court action contesting the election. A district court ordered that a special election be held, limited to those voters whose ballots had not been counted. The district court's order was appealed to the North Dakota Supreme Court. The governor also moved that Court to issue an order declaring the district court's judgment void ab initio. Both the appeal and the governor's motion were based on a constitutional provision making each house of the legislature the judge of the election returns and qualifications of its members. In both the appeal and the motion hearing it was argued that this constitutional provision denied the district court jurisdiction to issue the order for a special election. The North Dakota court held: If we were to accept and extend the argument of the contestees and give Art. IV, 26 [identical to S.D. Const. art. III, 9], an overriding effect, without giving meaningful consideration to Art. VI, 8 [i.e., the jurisdiction of district courts], and NDCC Ch. 16.1-16 [i.e., election contest proceedings in district court], an undesirable and absurd result would be reached. Every primary and general election involves some legislative candidates. Every challenge of such election per se, as distinguished from a challenge specifically directed to a legislative candidate, will incidentally involve a legislative candidate and, as a result, the house involved would be called upon to resolve the conflict. We know that the legislature is not in session, generally, when the primary or the general elections are held. Consequently, considerable confusion and delay would result. We do not believe the framers of the Constitution remotely had such an intent.
In addition, we must also recognize that the Legislature is not in a position to provide any affirmative equitable remedy. The Legislature could reject the "election" of a legislator which may put into operation certain provisions of the Constitution and statutes resulting in the Governor calling a special election. But other affirmative equitable remedies would not be available.
Significantly, the action commenced by the twelve voters did not contest the election of any legislative candidate specifically (NDCC 16.1-16-10, et seq.). The challenge was to the election process in which 526 votes were not counted. The contest only incidentally involved legislative candidates.
In resolving this issue, we cannot overlook that it involves a basic constitutional question, the right to vote and its importance.
Taking into account the foregoing legal principles announced in the cases mentioned earlier, and giving full application to the constitutional and statutory procedures, we conclude that the district court has jurisdiction over the subject matter brought to it by the twelve voters contesting the election. However, under the provisions of Art. IV, 26, of the North Dakota Constitution, each house will be the final judge on the election of its members.
Olson, 329 NW2d at 578-79 (citations omitted)(emphasis original).
[¶15] The foregoing authorities demonstrate that a constitutional provision that, "[e]ach house shall be the judge of the election returns and qualifications of its own members," does not consist of sixteen simple, unambiguous words as defendants have asserted. S.D. Const. art. III, 9. Quite to the contrary, the courts in these cases have struggled to find the precise meaning and implication of such language. While this Court has not been explicit in its own view of the effect South Dakota Constitution Article III, 9 has on its jurisdiction to act in legislative election disputes, its views are certainly implicit in at least two prior decisions.(3)
[¶16] In State ex rel. Ingles v. Circuit Court of Spink County, 63 SD 313, 258 NW 278 (1934), Ingles and Motley were candidates for the state house of representatives and received an equal number of votes. Ingles served notice of an election contest and began taking depositions from the clerk and auditor including the opening and examination of the ballot boxes. Motley procured a writ of prohibition from the circuit court directing Ingles to cease the depositions and the opening of the ballot boxes. Ingles then applied to this Court for a writ of prohibition directing the circuit court to cease its interference with the depositions.
[¶17] Ingles asserted that all questions connected with a contest or attempted contest for legislative office are to be determined exclusively by the legislature and, for that reason, the circuit court exceeded its jurisdiction by interfering with the depositions. Thus, the issue of the jurisdiction of the courts to become involved in disputes over state legislative office was placed squarely before this Court and a full opportunity was presented for this Court to hold the judiciary has no jurisdiction to become embroiled in these disputes. However, this Court held: Section 9 of article 3 of the Constitution of this state reads in part as follows: "Each house shall be the judge of the election returns and qualifications of its own members." The power of each house of the Legislature to determine the election and qualification of its own members is therefore plenary. When the Twenty-Fourth Legislature shall assemble at the capitol on January 8 next, any person whomsoever may appear before either house and assert his right and title to any seat therein. It may be admitted, so far as the present issues are concerned, that, if such a claim is so asserted, then whether or not the house will listen at all to the claimant, what proof it will require of him, what investigation it will make of his claim, and what decision it will finally come to concerning such claim, are matters entirely and exclusively for that house to determine. If such a claim is presented, and the house sees fit to investigate the matter, no one can doubt the power of the house to summon and interrogate witnesses, to order ballots and ballot boxes relating to the election to the contested seat brought in for examination, and to open and examine the same, or send a committee out for that purpose. That, however, is not the situation which is here before us. At the present time, the relator, Ingles, as an individual, is endeavoring to assemble some information, presumably for the purpose of presenting it to the House of Representatives in support of a claim which he expects hereafter to make before said house with reference to a seat therein.
Ingles, 63 SD at 319, 258 NW at 281. This Court went on to uphold the circuit court's issuance of its writ of prohibition to Ingles on the basis that Ingles had not complied with all of the applicable procedures for commencement of his election contest.
[¶18] In Thorsness v. Daschle, 279 NW2d 166 (SD 1979) [Thorsness I], Leo Thorsness, Tom Daschle's defeated opponent for the United States House of Representatives, petitioned for a writ of certiorari from this Court to review the recount procedures employed by several recount boards. Daschle moved to dismiss and quash the writ on the basis that under United States Constitution Article I, 5, the United States House of Representatives had the final and exclusive jurisdiction to determine the election of its members.(4) Once again rejecting the notion that the judiciary is foreclosed from involvement in election disputes by a constitutional provision granting to a legislative body the power to judge the elections, returns and qualifications of its members, this Court made the following pertinent observations:
The effect of granting Daschle's motion to dismiss would be to preclude a judicial review of a recount procedure, i.e., the manner of holding elections, in a political election in this state. We cannot agree with such a holding in light of the United States Constitution or the above-cited authorities... .
Our state has an extensive election system, which includes a recount procedure containing sixty-one sections, namely, SDCL 12-21-1 through 12-21-61. The entire purpose of this recount procedure was intended by the legislature to act as a method of policing and superintending the state's election system so that a candidate is not taken advantage of or deprived of a fair election. Adoption of Daschle's view would totally defeat the legislature's scheme and abrogate the legislative mandate to this court to review the recount procedures of the state. If a defeated candidate has a question regarding the correctness of the ballot-counting procedure in his congressional race, his only recourse is the recount procedure. The final step for a candidate is an application for a writ of certiorari to this court. To deprive him of this is to deprive him of his statutory right and his standing to question the accuracy of the voting process... .
[A]s long as a state court's post-election procedures do not impede an independent determination of the election results by the United States Congress, there is no reason why a state may not protect and enforce its procedures through post-election judicial review. We agree. The possibility that Congress may decide to make its own investigation and determination apart from the judgment of the state court and the fact that Congress has the final authority to make such determination do not constitute a bar to the enforcement of state
procedures designed to insure the legal outcome of its elections.
Therefore, Daschle's motion to dismiss the Thorsness petitions and to quash the January 5,
1979, writ of certiorari issued by this court is denied.
Thorsness I, 279 NW2d at 168-70.
[¶19] These authorities lead to the conclusion that the judiciary may exercise a limited jurisdictional role in legislative election disputes.(5) In Thorsness I, we defined that role as the power of judicial review of recount procedures. It is our charge to police and superintend the state's election system so that candidates are not taken advantage of or deprived of fair elections. We are required to enforce state procedures designed to insure the legal outcome of elections. It is for these purposes that the legislature has specifically empowered this Court to review recount procedures of judicially appointed recount boards. SDCL 12-21

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