Could a South Dakota county auditor have deputies register voters outside the auditor's office, and what could the auditor do for a voter from another county who could not appear there to register?

Plain-English summary

Mr. Klauck asked the AG four questions about voter registration outside the county auditor's office, voters from other counties, and the meaning of "physically unable to appear."

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

The AG concurred with earlier opinions that an auditor lacked authority to specifically appoint deputies who would work outside the office to register voters. He said those opinions needed clarification to answer the question fully.

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 said that if a county auditor needed deputies to register voters outside the office, the following provisions should generally be followed:

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 12-4-5.1.

The AG found no law forbidding registration by the auditor's office outside the office or county seat. He expressly contemplated commissioner authorization to hire additional deputies for outside registration; his concurrence with the earlier opinions did not create a distinction between deputies hired only for outside work and those also working inside.

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. Because the statutory card did not require an oath, any valid reason stated would suffice for the auditor to forward the materials needed for registration. He did not decide whether any specific physical or occupational circumstance qualified.

The AG did not define the outer limit of a "valid reason" or decide whether mere inconvenience would qualify.

Currency note

This opinion applied South Dakota voter-registration provisions as they stood in 1971. Check current election law and official registration guidance before relying on its procedures today.

What the opinion meant at the time

For county auditors, the opinion allowed registration outside the office or county seat. The auditor should prescribe the hours and places, and existing deputies could be sent out if commissioners authorized a change in working hours.

For county commissioners, the AG said authorization was needed to hire additional deputies and establish their hours and compensation. Commissioners could allow mileage, and their authorization was needed to pay it.

For a voter who could not appear before the auditor in the home county, the opinion described completing the SDCL 12-4-7 application in another county and having it forwarded to the proper auditor.

An auditor could not register a resident of another county directly. The forwarding procedure was available when the voter stated an inability to appear before the auditor of the county where they wished to vote.

Common questions

Q: Could the auditor pay deputies extra for outside-the-office work?
A: For existing deputies, the AG said SDCL 12-4-2 barred compensation above their already authorized salaries. Commissioners could authorize mileage allowances. The AG separately said commissioners would establish compensation and hours for any additional deputies hired.

Q: What if the auditor wanted to hire seasonal deputies just for a pre-election registration drive?
A: The AG said commissioners' authorization was needed to hire additional deputies for outside registration and to establish their compensation and hours. He did not address the terms of a seasonal hiring program.

Q: What if the outside-the-office registration locations were on private property (e.g., shopping malls, factories)?
A: The opinion allowed an auditor to set places for outside registration, but did not address access to private property.

Q: Could the auditor authorize a campaign organization or political party to register voters as deputies?
A: The opinion did not address appointing a campaign organization or political party to register voters. It discussed deputy county auditors authorized by county commissioners and the officials made deputies under SDCL 12-4-2.

Q: For inter-county absentee registration, how did the receiving auditor verify the applicant's residency in the home county?
A: The opinion did not prescribe a residency-verification process. It said the receiving auditor could have the voter complete the SDCL 12-4-7 application and forward it to the auditor of the proper county.

Q: Did "physically unable to appear" include people who simply did not want to appear in person?
A: The AG said any valid reason stated would suffice to forward the materials needed for registration. He did not decide whether simple preference or a busy work schedule was a valid reason.

Q: What about voter registration in nursing homes or hospitals where many residents could not travel?
A: The AG permitted registration outside the auditor's office under the procedures he described. He did not discuss nursing homes, hospitals, or actual county practices.

Background and statutory framework

The quoted SDCL 12-4-2 gave each county auditor charge of registration in that county and made city auditors, township clerks, and town clerks deputies for registration assistance.

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.

Under SDCL 7-7-22, a deputy county auditor could perform the auditor's acts. The AG said commissioners authorized deputy numbers, hours, and compensation under SDCL 7-7-20 and could allow mileage under SDCL 7-7-24.

The AG read SDCL 12-4-7's phrase "physically unable to appear" broadly, noting that the statutory card did not require an oath.

The AG concurred with earlier opinions about specifically appointing deputies for outside registration, but clarified that commissioners could authorize additional deputies for it and that regularly employed deputies could be sent out if their hours were properly changed.

The auditor could prescribe outside registration hours and places. The AG said the auditor had flexibility to vary the arrangements for local conditions, while following the statutory registration deadline and rules for deputy authorization.

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)
• 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