(dissenting).
[¶62] 1. The constitution requires the Legislature to be the judge of the election returns of its members.
[¶ 63] A plain review of Article III, § 9 of the South Dakota Constitution demonstrates it is not ambiguous: “Each house shall be the judge of the election returns and qualifications of its own members.” The constitution vests in the Legislature the jurisdiction to decide this dispute. It is not appropriate for judicial review despite the purported legislative delegation of the duty to this court in SDCL 12-21-48(1). An objective reading of the cases relied on in the majority opinion does not provide, expressly or impliedly, authority for the South Dakota Supreme Court to review a recount and issue a non-binding, advisory opinion. At its essence, the dispute here is a nonjusticiable controversy — a political question — which is beyond our jurisdiction to consider in any form.
[¶64] The United States Supreme Court has unequivocally ruled that political questions are outside the jurisdiction of judicial decision makers. In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663, 686 (1962), the Court explained what has become the definitive test for determining whether a justiciable controversy exists:
We have said that “in determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” The nonjusticiablity of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
A political question is one
of which courts will refuse to take cognizance, or to decide, on account of their purely political character, or because their determination would involve an encroachment upon the executive or legislative powers.
“Political question doctrine” holds that certain issues should not be decided by courts because their resolution is committed to another branch of government and/or because those issues are not capable ... of judicial resolution.
Black’s Law Dictionary 1158-59 (6th ed.1990) (citation omitted).
[¶ 65] The Court explained this further in Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). Nixon makes clear the two concepts cannot be considered separately; “the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.” Id. at 228-29, 113 S.Ct. at 735, 122 L.Ed.2d at 9.
[¶ 66] It is apparent from the language of Article III, § 9 that this issue is textually committed. Initially, in examining the language, we note that the framers of the constitution used the word “shall” in granting to the Legislature the authority to judge its members’ election returns. When “shall” is the operative verb in a statute, it is given “obligatory or mandatory” meaning. See In re Groseth Int'l, Inc., 442 N.W.2d 229,231-32 (S.D.1989) (citing Person v. Peterson, 296 N.W.2d 537 (S.D.1980); Tubbs v. Linn, 75 S.D. 566, 70 N.W.2d 372 (1955); 2A Sutherland Stat. Const. § 57.03 at 643-44 (4th ed.1984); Sutton, Use of “Shall” in Statutes, 4 J. Marshall LQ 204 (1938), reprinted in 1A Sutherland Stat. Const. 691 (4th ed.1985)). The actual text of this constitutional provision plainly demonstrates that the people conferred on the Legislature the authority to judge election returns of its members.
[¶ 67] Plaintiffs focus on the word “members” and assert that a “membereleet” becomes a “member” only after the individual *365has been sworn in prior to the commencement of the legislative session in January. Therefore, they claim, this court may review a recount because its “action as it relates to votes for the member-elect are not superseded by the Legislature’s rights relating to its members.” The text of the constitution demonstrates that the fault with this assertion is two-fold: 1) Article III, § 8 clearly refers to “members-eleet” as “members” when it provides that “Members of the Legislature ... before they enter upon their official duties [shall take an oath]” and a “member” refusing the oath forfeits office (emphasis added); and 2) the claim that any action this court takes will not be superseded by the Legislature is contradicted by Plaintiffs themselves when they argue this court will “[determine] who has won,” yet the “Legislature [has] the authority to determine ... who should be seated.”
[¶ 68] It is this second fallacy, coupled with the mandatory “shall,” which makes this a nonjustieiable issue under Baker and Nixon. If this court issues this advisory and nonbinding opinion, it may be modified or ignored by the Legislature. “[T]he lack of finality ... counsels] against justiciability.” Nixon, 506 U.S. at 286, 113 S.Ct. at 739, 122 L.Ed.2d at 13.
[The Legislature] cannot require the judiciary as a co-ordinate department of government to hold a trial and render a decision which in its nature must be purely tentative or advisory and wholly subject to its own review, revision, retrial, or inaction. This would be imposing upon the judicial department of government the investigation of a matter not resulting in a judgment, not finally fixing the rights of parties, and not ultimately determining a state of facts. It would subject a proceeding arising in a court to modification, suspension, annulment or affirmation by a part of the legislative department of government before it would possess any definite force.
Manifestly this is in contravention of ... separation of the legislative and judicial departments of the government.
Dinan v. Swig, 223 Mass. 516, 112 N.E. 91, 94 (1916).
[¶ 69] The actual language of Article III, § 9 of our state’s constitution mandates that election returns of the members are to be judged by the Legislature itself. Thus, because there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department,” Baker requires the conclusion that this is a nonjustieiable controversy.19
[¶70] 2. The constitution can not be changed by the Legislature or the judiciary; only the people have that power through a constitutional amendment.
[¶ 71] The people of South Dakota established the constitution:
The policy of the State of South Dakota is set by the people of South Dakota. This is principally done by the people through enactment of a constitution, ratification of amendments, and enactment of statutes through their legislative representatives.
Cummings v. Mickelson, 495 N.W.2d 493, 510 (S.D.1993) (Sabers, J., dissenting). It is clear from the constitution, and from the failure of two proposed amendments20 to this constitutional provision which would have empowered the Legislature to vest in the judiciary the determination of contested legislative elections, that the people want the Legislature to be the judge of the election returns of its own members. The will of the citizens of this state in rejecting such a provision is unique evidence that under the constitution as originally framed, the Legislature— not this court — has the authority to determine the election returns. See Poppen v. Walker, 520 N.W.2d 238, 246 (S.D.1994).
[¶ 72] Plaintiffs insist the Legislature had the power to delegate its authority to judge *366the outcome of the elections of its members and did delegate that authority to this court. They assert that since the Legislature has a constitutional obligation to provide for this court’s appellate jurisdiction, it also has the authority to delegate to this court the constitutional obligation placed upon it to judge the election returns of its members. S.D.Const. Art. Y, § 5. Plaintiffs’ contention that this court has the jurisdiction to decide these issues ignores the significance of the constitutional enactment of the people.
[¶ 73] “It is the duty of the Supreme Court, not the legislature, to determine the meaning of constitutional terms. The legislature cannot define the scope of a constitutional provision by subsequent legislation.” Poppen, 520 N.W.2d at 242 (stating that it is a function of the judiciary, not the legislature, to define the scope of constitutional provisions) (citing South Dakota Auto. Club v. Volk, 305 N.W.2d 693, 700 (S.D.1981); Edge v. Brice, 253 Iowa 710,113 N.W.2d 755, 759 (1962)).
[¶ 74] Justice Morgan’s dissent in Thorsness v. Daschle, 279 N.W.2d 166, 170-71 (S.D.1979), might have been written for this case:
The majority opinion calls for an exercise in futility.
How in the world can anyone argue that the questions “who won the election?” and “who will be seated?” are mutually exclusive. It is purely an appeal to the provincial and quixotic.
[[Image here]]
Let us look at Roudebush v. Hartke, et al., 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), on which the majority so heavily relies. The United States Supreme Court clearly states that the question “who is entitled to be seated?” is a nonjusticiable political question. The Court then goes on to uphold the right of a candidate to exercise his right to a recount before court-appointed recount commissioners which his opponent had sought to enjoin. It is, first of all, noteworthy that the decision pointed out in detail the distinction between judicial and nonjudieial functions of the courts. Under Indiana statute there was no provision for judicial review, merely for court appointment of the recount commissioners, which the decision denominated a nonjudicial function. So, while assuring the candidate his right to recount board review, the Court in fact reiterated its previous holding ... that the outcome of the election, being a political question, was not a justi-ciable question because of the separation of powers provided by the United States Constitution. Thorsness wants the five members of this court to reexamine for a second time the ballots that have been examined and reexamined. The principal contention as to almost every ballot is whether or not it bears an identifiable mark. These issues were presumably argued before the election boards and, beyond any question, were argued before the recount boards. Thorsness wants us to be the court of last guess. I have participated in enough election contests to know the futility21 of trying to determine whether a ballot was fatally marked by the voter or inadvertently by an election clerk or judge, or perhaps now by recount board members. Lacking some divinely inspired perception, it can be no more than a guess, *367but it must be made under the guise of the judicial function of this court.
What possible precedential value for future elections can be gleaned from a determination that Exhibit 4 from Swan Lake Township of Turner County or Exhibit 20 from Estelline Precinct of Hamlin County, or any of the other seventeen-hundred-plus exhibits, were in fact marked ballots or not? It is a fact question that will have to be determined exhibit by exhibit, case by case, so long as paper ballots are used.
In summation, I believe that the majority has embarked this court on a quest that will expend an extremely large amount of judicial time for no purpose, not unlike Don Quixote riding out to joust with windmills for the favor of the illusory Dulcinea.
(Emphasis in original; original footnotes omitted; footnote added). Likewise, the issue presented here — the determination of two contested legislative elections — does not present a justiciable controversy.22 The constitution requires the Legislature — not this court — judge the outcome and only an amendment to the constitution would confer on us the authority to pass judgment in this matter.
[¶ 75] 3. If this court has no jurisdiction to issue a final, binding opinion, we should issue none at all.
[¶ 76] The majority concedes that we do not have jurisdiction to render a real opinion, one that would be final and binding on the Legislature. In fact, this court has absolutely no authority to render an advisory opinion to the Legislature. Article V, § 5, provides in part: “The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.” (Emphasis added). See also In re Constr. of Art. Ill, 464 N.W.2d 825, 826 (S.D.1991) (“The Governor’s power to require an advisory opinion from the Supreme Court ⅛ confined exclusively to such questions as may raise a doubt in the executive department, — never in the legislative. Were we to construe it otherwise, it would be liable to become the medium of great abuse.’” (Citation omitted; emphasis added)). “In effect ... we would be giving an advisory opinion to the ... legislature, and such an opinion exceeds our authority.” Id. at 827.
[¶ 77] In ¶ 22, the majority opinion states:
In Thorsness I, we made clear this Court’s lack of any jurisdiction to dictate the final determination of a legislative election. Our review of a recount and judgment in such a proceeding merely constitutes evidence. It remains with the house to perform its constitutional duty of determining who shall sit and this court can express no opinion on the outcome of that deliberation.
(Emphasis added; footnote omitted.) It would be one thing if our “advisory opinion,” which merely constitutes evidence, would be binding on the Legislature — but it has no binding effect. It would be another thing if this “evidence” had to be accepted or rejected by the Legislature based on standards of review similar to rules of appellate procedure. However, this “evidence” may be totally rejected by the Legislature in an absolutely arbitrary manner. In other words, our “advisory opinion” is nothing more than mere “evidence” which may be rejected out of hand. Nowhere in the Constitution does it say that the Supreme Court should provide evidence for the Legislature. In effect, our “advisory opinion” becomes a “nonopinion.”
[¶ 78] Therefore, we are left to issue a nonbinding, advisory opinion — one that “merely constitutes evidence.” Simple logic would dictate that if the Supreme Court of the *368State of South Dakota can not issue a binding, final opinion, it should issue none at all. See Boesch v. City of Brookings, 534 N.W.2d 848, 850 (S.D.1995) (we do not issue “opinion[s] merely for the purpose of establishing a precedent”). Accordingly, recount results should go directly to the parties, and to the Legislature for its consideration in judging the election returns as required by the constitution. S.D.ConstArt. Ill, § 9.
[¶ 79] I join Justice AMUNDSON’S dissent.
AMUNDSON, Justice(dissenting).
[¶ 80] I dissent.
[¶ 81] Proposed amendments to Article III, § 9, were put to the electorate on two separate occasions in 1974 and 1976. Twice the people of South Dakota voted to reject these amendments which “would have empowered the legislative house to vest in the judiciary the determination of contested legislative elections.” S.D.ConstArt. Ill, § 9, Historical Note (1978); see also 1974 S.D.Sess.L. ch. 1, § 7; 1975 S.D.Sess.L. ch. 2, § 7. In other words, the people rejected the opportunity to vest in this Court the authority to determine who wins a seat in the Senate or House.23 I submit the majority is now attempting to make such an amendment by judicial fiat.
[¶82] While the majority contends it is “impossible to ascertain the intent of the people concerning the precise sections of the proposed amendments that the people rejected[,]” the fact remains, and the majority admits, the people voted down the amendment on two different occasions. "Whether there were a hundred sections or one section, there is no dispute that the entire amendment, including the section extending authority to this Court to determine contested elections, was twice rejected by the people.
[¶ 83] The majority disregards the will of the people of this state by overlooking the rejected amendments in 1974 and 1976. Previous decisions by this Court, however, emphasize the significance of the will of the people. See, e.g., State v. Moeller, 1996 SD 60, ¶ 103, 548 N.W.2d 465; Cummings v. Mickelson, 495 N.W.2d 493, 502 (S.D.1993); Kneip v. Herseth, 87 S.D. 642, 658-59, 214 N.W.2d 93, 102 (1974). Consistent with these opinions, we must accept the plain desire of the people that the authority to determine who shall be seated in either house is vested in those two bodies.
[¶ 84] Furthermore, the majority cites Ingles, 63 S.D. at 319, 258 N.W. at 281, for the proposition that this Court implicitly stated it had jurisdiction to resolve disputes similar to the one at hand. The majority opinion quotes certain language from Ingles to support this statement. However, a significant sentence is obviously overlooked or disregarded, wherein this Court stated: “The power of each house of the Legislature to determine the election and qualification of its own members is therefore plenary.” Id. (emphasis added). “Plenary” means absolute. Webster’s New Collegiate Dictionary 882 (1974). Thus, we have held that the Legislature’s authority to determine election disputes is absolute, and should remain as such today.24
[¶ 85] I further emphasize that the majority cites to no authority in the South Dakota Constitution which directs this Court to administer advisory opinions on such election disputes. See, e.g., In re Constr. of Art. Ill, 464 N.W.2d 825, 827 (S.D.1991) (stating the Court lacked authority to give an advisory opinion on reapportionment); In re Advisory Opinion Concerning H.B. 1255, 456 N.W.2d 546, 551 (S.D.1990) (stating the Court had no authority to render an opinion to the agriculture and business development finance authority). Moreover, as stated in Associated General Contractors v. Schreiner, we are to examine the Constitution in total. 492 N.W.2d 916, 923 (S.D.1992) (“in construing a constitutional provision, [the court] must have regard to the whole instrument, ... *369seek to harmonize the various provisions, and if possible, give effect to all of them.”). After one reads the entire Constitution, it is clear that any decision we render today is not binding on anyone and, therefore, cannot be enforced. Article III, § 9, of the South Dakota Constitution expressly grants to the Legislature the duty to determine contested elections of its members: “Each house shall be the judge of the election returns and qualifications of its own members.” Without a provision in the Constitution that authorizes the delegation of this authority to a coordinate branch of government, we cannot override this clear statement of authority granted to the Legislature; any decision by this Court concerning the validity of the elections would be nonbinding. As stated in Roudebush v. Hartke, “^Judicial interference with this ‘indubitable power’ was said to be possible only upon a clear showing of ‘such arbitrary and improvident use of the power as will constitute a denial of due process of law.’ ” 405 U.S. 15, 82, 92 S.Ct. 804, 814, 31 L.Ed.2d 1, 15 (1972) (Douglas, J., dissenting in part) (quoting Barry ¶. U.S. ex rel. Cunningham, 279 U.S. 597, 620, 49 S.Ct. 452, 457, 73 L.Ed. 867, 874 (1929)).
[¶ 86] Similarly, “judicial interference” with the expressly delegated power of the Legislature to judge the election returns is unwarranted in this case because, at this time, we do not know if the final decision in this dispute is “arbitrary and improvident” since no action has been taken as of this date. Even if such a contention can be made after the Legislature acts, it does not come into play at this time.25 Only after an individual has taken every step necessary to be seated in the appropriate house and been denied such a right would this Court be in a position to decide whether there had been a denial of due process of law based on the final decision made by the legislative body.
[¶87] Justice SABERS is authorized to state that I also join his dissent.
*370[[Image here]]
*371[[Image here]]
*372[[Image here]]
*373[[Image here]]
*374[[Image here]]
. For this reason, there is no need to consider the separate hurdle of whether there is "a lack of judicially discoverable and manageable standards for resolving the issue.” Baker, 369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686. Even if we went on to consider this point, it is apparent that such standards are lacking here as evidenced by the difficulty encountered in the majority opinion to discern such standards.
. With regard to the significance of the failure to amend the constitution to allow the judiciary to determine contested elections, I join Justice Amundson's dissent.
. The futility of such an exercise is present in this case also. See, for example, the repeated disregard of reasonably plain instructions by the absentee voter involved in Issue A, Exhibit 37. Supra ¶¶ 26-31. Compare the written and printed "signatures” and determine whether there was even substantial compliance with those instructions.
See also Issue B, Exhibits 32 and 33, ¶¶ 32-38, and compare with the analysis of Issue C, Exhibit 4, ¶¶ 39 — 44, and determine whether “every effort [was made] to determine the voter's true and actual intent in marking his ballot” as stated in ¶ 42 of the majority opinion. Likewise, are the same analysis and tests being applied to determine the voter's intent and invalidity due to extraneous marks in both issues? In deference to the majority, these issues were not adequately addressed in Plaintiffs’ briefs and were not addressed at all in Defendants' briefs. As stated by Justice Morgan: "What possible precedential value for future elections can be gleaned” from such an exercise in futility. See Boesch v. City of Brookings, 534 N.W.2d 848, 850 (S.D.1995) (we do not issue "opinion[s] merely for the purpose of establishing a precedent”). There was no trial, no evidentiary hearing, just a rush to judgment that, contrary to the majority’s intention, could be harmful rather than helpful.
. This case is much different than Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), where the Supreme Court found a justiciable controversy to exist over whether Powell, elected to serve in the United States House of Representatives, was unlawfully excluded from the House. It was undisputed that Powell had been duly elected and satisfied the qualifications to be seated in the 90th Congress. See U.S.Const.Art. 1, § 2. The Court found the controversy justiciable because its resolution turned solely on the meaning of the constitutional provisions and did not impose a political confrontation between the legislative and judicial branches of government.
. The people’s will is examined because, as we stated in Poppen v. Walker, "amendments to a constitutional provision proposed but rejected may be considered in determining the intent of the framers.” 520 N.W.2d 238, 246 (S.D. 1994).
. The issue in this case is the jurisdiction of legislative elections under the Constitution. Chapters 12-21 and 12-22 apply to municipal and county elections as evidenced by the reported cases. Therefore, there is no issue in this case regarding the constitutionality of those statutes as they apply to these other elections.
. By way of example, the case of Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), demonstrates this ripeness element to the justiciability of such a controversy. In Powell, the United States Supreme Court held that Powell’s petition was ripe for review where the United States House of Representatives had refused to seat Powell and adopted a resolution excluding him'from membership, even though it was undisputed that he had been duly elected and satisfied the constitutional qualifications to hold office. Given this posture, the controversy was limited to a determination of the meaning the phrase 'he the judge of the qualifications of its own members” of Article I, § 5 of the federal constitution. In this case, after the Legislature has made a final decision, the dispute would be ripe for determination of whether there were any constitutional deficiencies in that decision.