# Larson v. Locken

> South Dakota Supreme Court · February 8, 1978 · 262 N.W.2d 752

URL: https://www.frixlaw.com/law-library/cases/9851984

## Case

- **Full name:** Keith LARSON, Clarence Erickson, Ernest Allbee and Harlow Holler, Plaintiffs and Respondents, v. Virgil LOCKEN, Defendant and Appellant
- **Court:** South Dakota Supreme Court
- **Decided:** February 8, 1978
- **Citations:** 262 N.W.2d 752; 1978 S.D. LEXIS 150
- **Precedential status:** Published
- **Opinion:** Dissent by Porter
- **Judges:** Morgan, Dunn, Wollman, Zas-Trow, Porter
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851984

## Opinion text

PORTER, Justice
(dissenting).
The allegations of irregularity pertain only to the sixteen absentee ballots cast in the election. None of the absentee ballots bore an official stamp, SDCL 12-16-30, and all were therefore void. Lingo v. Noonan, 75 S.D. 442 , 67 N.W.2d 779 (1954). The ballots cast in person on election day were officially stamped. Plaintiffs could have demonstrated in an appropriate proceeding, that the absentee ballots (all of which were counted) affected the outcome of the election, if that were so. However in the record now before us, there is no showing by respondents that the procedural irregularities had any effect on the election outcome. Under this record we have no basis to assume that the election result did not express the will of the voters.
*758 The trial court did not find fraudulent conduct or bad faith on the part of appellant, the election winner. Thus, we need not reach the issue of the remedy to be afforded where the election process is permeated by fraud but the actual effect on the outcome cannot be precisely proven.
Violations of election statutes constitute a crime for which the person or persons involved may be individually prosecuted. See SDCL 12-26. However, we should not hold that an election may be set aside by the courts, in this instance, or on another day in an election in which thousands of votes were cast, absent evidence of fraud or bad faith or evidence that the prohibited conduct probably altered the election result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851984. Public record. Not legal advice.