A county auditor wanted to send deputies into the community (workplaces, shopping centers, nursing homes) to register voters, rather than requiring all registrations at the auditor's office. Was that legal? Could the auditor use existing deputies or appoint special outside-the-office deputies? Could auditors register voters from other counties who happened to be in their county temporarily? And how flexibly could 'physically unable to appear' in the absentee-registration statute be interpreted?

Plain-English summary

Mr. Klauck, presumably a county auditor or election official, asked the AG four questions about expanding voter registration beyond the county auditor's office.

Question 1: Could the auditor appoint deputies specifically to register voters outside the office?

The AG split this question. Strictly speaking, no, the auditor could not appoint special "outside-the-office" deputies. Prior AG opinions in 1959-60 AGR 2, 1963-64 AGR 234, and 1963-64 AGR 341 had so held, and the AG concurred.

But the analysis needed clarification. SDCL 12-4-2 gave the county auditor "complete charge of the registration of all voters in his county," with city auditors, township clerks, and town clerks "constituted his deputies for the purpose of assisting in such registration." SDCL 12-4-3 gave the auditor broad powers to prescribe "reasonable rules and regulations as to the hours which his office shall be open and as to the places and the manner of registration as may be necessary."

Under SDCL 7-7-22, a deputy county auditor could do all acts the auditor could do. Deputies had to be authorized by the county commissioners (SDCL 7-7-20), who set their number, hours, and compensation.

Putting these together, the AG concluded that if a county auditor wanted to use deputies to register voters outside the office, the auditor should:
1. Prescribe the hours and places of outside registration.
2. Obtain county commissioner authorization for the deputies, with set compensation and hours of employment. Mileage allowances could be made under SDCL 7-7-24.
3. Cease outside registration twenty days before the election, per SDCL 12-4-5.1.

The bar on "appointing deputies who will work outside the office" was about the formal designation: a deputy could not be hired specifically and only for outside-the-office work. But a deputy who could also do in-office work could be sent outside the office.

Question 2: Could existing employed deputies be sent out of the office to register voters?

Yes, with proper authorization. The county commissioners had to authorize changes in working hours. The deputies' compensation could not be increased beyond their authorized salaries (SDCL 12-4-2's "no additional compensation" rule applied to compensation above the salary already set). But mileage allowances had to be authorized by the commissioners and could be paid.

The auditor's office had to maintain minimum hours under SDCL 7-7-2, but outside-the-office hours could be added.

Question 3: Could auditors register voters from other counties?

No. The AG ruled that an auditor of County A could not register a voter who was a resident of County B and happened to be in County A. Each county's auditor had charge of registration for that county's residents.

But there was a workaround. If a voter from County B appeared in County A and stated that he was "unable to appear" before his home county's auditor, the County A auditor could have him fill out the absentee-registration application provided by SDCL 12-4-7 and forward it to the County B auditor for processing.

Question 4: How broadly should "physically unable to appear" in SDCL 12-4-7 be interpreted?

Quite broadly, the AG said. The card did not require an oath, so any valid reason stated would be sufficient to cause the county auditor to forward the materials. A wheelchair-bound voter, a bedridden voter, or a voter confined by occupation (e.g., overnight nurse, long-haul truck driver, factory shift worker) could all qualify.

The framing was that SDCL 12-4-7 was meant to facilitate registration for people who genuinely could not make it to the auditor's office during normal hours, not to be a strict medical-incapacity test. The county auditor had discretion to accept a wide variety of "unable to appear" reasons.

Currency note

This opinion was issued in 1971. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's voter registration framework in SDCL Chapter 12-4 has been substantially modernized since 1971. The National Voter Registration Act of 1993 ("Motor Voter") and subsequent federal and state changes have introduced motor-vehicle and agency-based registration, mail registration, and online registration options that did not exist in 1971. Modern voter registration practices should follow current SDCL Chapter 12-4 and Secretary of State guidance.

What the opinion meant at the time

For county auditors interested in increasing voter registration, the opinion opened a pathway. Existing deputies could be sent to community locations (workplaces, churches, retirement homes, civic events) to register voters, as long as the county commissioners authorized the working-hours change and any mileage allowance. This expanded voter access well beyond the courthouse-only model.

For county commissioners, the opinion clarified their role. They had to approve the auditor's outside-the-office plan in terms of deputy hours and mileage. They were the budget gatekeepers; the auditor was the procedural designer.

For voters with limited mobility or restrictive schedules, the opinion expanded their access to registration. They could either request absentee registration under SDCL 12-4-7 (with a broad interpretation of "unable to appear") or be reached by traveling deputies if the county auditor was running an outside-the-office program.

For voters temporarily out of their home county (college students, traveling workers, hospital patients), the absentee-registration card forwarded through SDCL 12-4-7 gave them a registration option even if they could not return home.

For South Dakota's overall voter participation rates, the opinion was modestly enabling. Counties willing to invest deputy time in outside-the-office registration could measurably increase enrollment, especially in larger urban counties with concentrated workplaces and population centers.

Common questions

Q: Could the auditor pay deputies extra for outside-the-office work?
A: No. SDCL 12-4-2 prohibited additional compensation. The deputy's existing salary covered all duties, in-office and out. The auditor could not bonus or differential-pay for the outside work. Mileage reimbursement was allowed, but as a reimbursement, not as additional compensation.

Q: What if the auditor wanted to hire seasonal deputies just for a pre-election registration drive?
A: The auditor could request the county commissioners to authorize seasonal deputies. The commissioners set number, hours, and compensation, so a temporary seasonal hire was within their authority to approve. The deputies, once hired, could register voters in or out of the office, subject to the same rules.

Q: What if the outside-the-office registration locations were on private property (e.g., shopping malls, factories)?
A: The auditor would need permission from the property owner. The statute did not address private property access for registration; it was a separate question of trespass and contract law. In practice, most private property owners welcomed registration deputies.

Q: Could the auditor authorize a campaign organization or political party to register voters as deputies?
A: No. The deputies had to be county auditor staff, authorized by the county commissioners. Partisan groups could not be deputized for voter registration. They could direct interested voters to the auditor's office or to outside registration events run by the auditor.

Q: For inter-county absentee registration, how did the receiving auditor verify the applicant's residency in the home county?
A: SDCL 12-4-7 did not require pre-verification. The applicant filled out the card stating residency in the home county; the receiving auditor forwarded the card; the home county auditor then verified residency and processed the registration. The receiving auditor was a pass-through, not a residency verifier.

Q: Did "physically unable to appear" include people who simply did not want to appear in person?
A: The opinion said any "valid reason" stated would suffice. "I'm too busy with my job and can't get away during your office hours" would arguably be a valid reason. The framing was that the statute was facilitative, not gatekeeping. Counties varied in how strictly they applied it.

Q: What about voter registration in nursing homes or hospitals where many residents could not travel?
A: The auditor could send deputies to nursing homes and hospitals to register voters in person, treating the visit as outside-the-office registration. Alternatively, the absentee-registration card under SDCL 12-4-7 could be used. Many counties used both approaches.

Background and statutory framework

South Dakota's voter registration system in 1971 was largely county-based. SDCL Chapter 12-4 governed the process. Each county auditor had primary charge; city auditors and township and town clerks served as ex officio deputies in their jurisdictions.

The system was designed around in-office registration. SDCL 12-4-3 specified that the auditor's office must be open during normal business hours for registration, with extended evening hours for six business days immediately preceding the close of registration (8:00 a.m. to 9:00 p.m. in counties with 10,000+ population, with county-commissioner option in smaller counties).

But the same statute (12-4-3) gave the auditor flexibility to prescribe "reasonable rules and regulations as to the hours which his office shall be open and as to the places and the manner of registration as may be necessary." This "places and manner" language was the textual hook for outside-the-office registration.

SDCL Chapter 7-7 covered county officers generally. The auditor had statutory deputies (SDCL 7-7-22 made a deputy auditor able to perform all auditor functions). The county commissioners were the budget body that approved deputy numbers, hours, and compensation (SDCL 7-7-20), with authority to allow mileage (SDCL 7-7-24).

The absentee-registration provision (SDCL 12-4-7) was a 20th-century addition designed to accommodate people who could not physically come to the auditor's office. It used the phrase "physically unable to appear," which the AG read flexibly.

Prior AG opinions on outside-the-office deputy appointments had been read strictly (no specially appointed outside-only deputies). The 1971 opinion confirmed that strict reading but expanded the workaround: regular deputies could be sent out, as long as the formalities (commissioner authorization, hours, mileage) were observed.

The opinion struck a balance between strict statutory interpretation (no special outside-only deputies) and policy flexibility (regular deputies could go anywhere with commissioner approval). The practical effect was to enable expanded voter registration drives by counties willing to invest deputy time.

Citations and references

Statutes:
- SDCL 12-4-2 (county auditor charge of registration; ex officio deputies)
- SDCL 12-4-3 (rule-making power; office hours)
- SDCL 12-4-5.1 (registration cutoff 20 days before election)
- SDCL 12-4-7 (absentee registration for physically unable)
- SDCL 7-7-2 (minimum office hours)
- SDCL 7-7-20 (commissioner authority over deputies)
- SDCL 7-7-22 (deputy may do all auditor acts)
- SDCL 7-7-24 (mileage allowance for deputies)

Prior AG opinions:
- 1959-60 AGR 2 (auditor cannot appoint outside-only deputies)
- 1963-64 AGR 234 (same)
- 1963-64 AGR 341 (same)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=507

Original opinion text

Power and duties of the county auditor in the registration of voters.

Dear Mr. Klauck:

You have requested my opinion on the following questions:

1. Does the county auditor have authority to appoint deputies who will work outside the office to register people to vote?

2. Does the county auditor have the legal right to send employed clerks or deputies out of the office to register voters?

3. Do the various auditors over the state have the legal right to register citizens of other counties who happen to be there in school or for other temporary reasons and then forward the card to the proper auditor?

4. How flexible can the law SDCL 12-4-7 pertaining to absentee registration be interpreted for administration? Does physically unable mean confined in a wheelchair or bed or does it mean confined to an occupation?

ANSWER 1. My predecessors have ruled in 1959-60 AGR 2, 1963-64 AGR 234 and 1963-64 AGR 341 that the county auditor does not have the authority to specifically appoint deputies who will work outside the office to register people to vote. I concur in this proposition; however, these opinions need clarification in order to fully answer this question.

SDCL 12-4-2 provides:

The county auditor shall have complete charge of the registration of all voters in his county, and the auditor of each city, the clerk of each township and the clerk of each town in his county are hereby constituted his deputies for the purpose of assisting in such registration. In the case of independent school districts having territory in two or more counties, the county auditor of each such county shall have charge of those electors of such district residing in his county. No additional compensation shall be paid to the county auditor, city auditor, township clerk or town clerk for such services.

SDCL 12-4-3 further defines the county auditor's powers and duties in the area of voter registration:

The county auditor shall provide such prescribed forms, blanks, and other supplies as are necessary to carry out the provisions of this chapter. Subject to the provisions hereof, he shall prescribe such reasonable rules and regulations as to the hours which his office shall be open and as to the places and the manner of registration as may be necessary; provided, however, that on each of the six business days immediately preceding the close of registration for each general and primary election, the office of the county auditor in all counties having a population of ten thousand or more shall remain open from 8:00 a.m. to 9:00 p.m., and, in any other county, the board of county commissioners may order such office to remain open from 8:00 a.m. to 9:00 p.m. on any or all of said six business days immediately preceding the close of registration for each general or primary election, if such board deems it in the best interest of the residents of said county to do so.

These two statutes grant the county auditor broad powers to register voters according to rules and regulations prescribed by him relating to the hours, places and manner of registration as may be necessary.

A deputy county auditor may do all acts that the auditor may do pursuant to SDCL 7-7-22. Deputies for the county auditor have to be authorized by the county commissioners who will set the number of the deputies, their time of employment and fix their compensation. SDCL 7-7-20.

It is my opinion that if a county auditor feels that a deputy or deputies are needed to register voters outside the office of the county auditor the following provisions should be generally followed.

1. The auditor should prescribe the hours and the places the deputies would register the voters outside the office.

2. Authorization from the county commissioners would be needed to hire the additional deputy or deputies and their compensation and hours of employment would be established. The county commissioners could make mileage allowances pursuant to SDCL 7-7-24.

3. Registration outside the office of the county auditor would have to cease pursuant to 12-4-5.1 twenty days before the election.

I can find no provision of the South Dakota Compiled Laws that would forbid registration by the auditor's office outside either the county seat or the county auditor's office. The county auditor would also be allowed some flexibility on this point to make the process of registration easier or to vary the provisions according to the local conditions.

The county auditor may use the present deputies employed at his office to perform these functions provided that the county commissioners authorized a change in working hours. However, SDCL 12-4-2 provides that no additional compensation may be paid, and this would apply to compensation over and above the salaries already authorized to be paid to the deputies. Authorization for a mileage allowance would have to be obtained from the county commissioners in order to be paid.

The hours of registration would not be important. SDCL 7-7-2 provides the minimal hours that the auditor's office must be open, and the other statutes relating to hours of registration set a minimum. Additional hours may be added either by the county commissioners for the office as in SDCL 12-4-3 or for outside the office as set by the county auditor also in SDCL 12-4-3.

ANSWER 2. It is my opinion that the county auditor has the legal right to send regularly employed deputies out of the office to register voters provided that the requirements spelled out in Question 1 are met.

ANSWER 3. It is my opinion that the various auditors do not have the legal right to register citizens of other counties. If a voter appears and states that he is unable to appear before the county auditor in the county where he wishes to vote, the county auditor may have him fill out the registration application provided by 12-4-7 and forward it to the auditor of the proper county.

ANSWER 4. The terminology used in SDCL 12-4-7 is "physically unable to appear" and should be interpreted quite broadly. Since the card provided by the statute does not require an oath, any valid reason stated would be sufficient to cause the county auditor to forward the materials needed for registration.

Respectfully submitted,

Gordon Mydland
Attorney General