Does South Dakota's new law forcing the Secretary of State to post the statewide voter file online clash with the older law that bans putting voter file data on the internet for unrestricted access?

Plain-English summary

The 2025 Legislature passed HB 1062, which amended SDCL 12-4-37 to require the Secretary of State to post a weekly update of the statewide voter registration file on the Secretary's website. The amendment ran headlong into SDCL 12-4-41, which has long prohibited voter file information from being "placed for unrestricted access on the internet" or used for commercial purposes.

Representative Rehfeldt asked the AG whether the two statutes conflict. AG Marty Jackley concluded they don't, but only because of how the Secretary of State has actually implemented the posting requirement. The Secretary doesn't dump a downloadable file at a static URL. Instead, anyone who wants the file fills out an online request form with their contact information and acknowledges that they have read the use restrictions in SDCL 12-4-9 and 12-4-41. The system then emails them a one-time link that expires in 12 hours.

That setup, the AG said, "is a reasonable, and minimal, restriction on access" that satisfies the SDCL 12-4-41 prohibition while still posting the file under SDCL 12-4-37. "Unrestricted access" means access without any gate; the request form is a gate. The Legislature is presumed to have known SDCL 12-4-41 existed when it passed the posting amendment, and statutes should be harmonized when possible rather than read as implicitly repealing one another.

The AG's analytical posture is conservative on both ends. The Secretary's request form is described as "minimal," not as a tightly locked-down vault. The AG flagged that if the Legislature wanted unrestricted bulk download, it could amend SDCL 12-4-41 directly. Until then, the request-form-with-time-limited-link approach is what the AG endorses.

What this means for you

For Secretary of State election staff

Your current implementation has explicit AG approval. The combination of (a) request form, (b) statutory acknowledgement, (c) one-time link, (d) 12-hour expiration is the model. If you ever modify the system, make sure each of those four elements stays or is replaced by something equivalent. Removing the acknowledgement, leaving a static URL up, or extending the link well beyond the user's session would all weaken the "restricted access" framing.

For political data users, candidates, and parties

Your access to the file does not become a one-click website link. You still need to submit a request through the Secretary's form for each retrieval, acknowledge the statutory restrictions, and download within the 12-hour window. Build that step into your data-refresh process. The file is updated weekly, so plan for at most weekly re-pulls.

For journalists requesting the file

The mechanism works the same for media as for anyone else. You submit the form, acknowledge the limits, and use the link in time. The SDCL 12-4-41 restrictions on commercial use and unrestricted republishing still apply to you. If you plan to publish data derived from the file (for example, a story analyzing voter demographics), be careful about what counts as "republishing" the file under SDCL 12-4-41. Aggregate analysis is different from posting the raw file.

For voter registration advocates and researchers

The file is now refreshed weekly, which is a real upgrade over the prior more-restrictive access model. But the use restrictions stay: no commercial use, no unrestricted reposting. The AG opinion does not weaken or expand those restrictions; it confirms the Secretary's choice of access mechanism is legal under both statutes.

For state legislators

If your goal in passing HB 1062 was true unrestricted public access (no form, no acknowledgement, just a download link), the AG opinion tells you the Secretary's current implementation does not deliver that, and that is the lawful outcome under the current statutory pair. To get unrestricted bulk download, you would need to amend SDCL 12-4-41 to carve out the Secretary's online posting.

For South Dakotans worried about voter privacy

The voter file contains your registered name, address, party affiliation, and voting history (whether you voted, not how). The AG opinion confirms the Legislature's privacy guardrails are still in force: no commercial use, no unrestricted internet posting. The new weekly online refresh increases access for legitimate users but does not strip the privacy framework.

Common questions

Q: What does HB 1062 actually change?
A: It adds a weekly online posting requirement at the Secretary of State's website. Before HB 1062, accessing the voter file involved a more involved request process. The amendment standardized weekly updates and pushed them onto the website infrastructure.

Q: What does "unrestricted access" mean in SDCL 12-4-41?
A: The opinion reads it as access with no gate at all. A static URL that anyone could click is unrestricted. A request form, a click-through acknowledgement, and a time-limited link constitute "restricted" access in the AG's reading.

Q: Could the Secretary make the access more restrictive?
A: Yes. The AG opinion only requires "reasonable" restrictions to satisfy SDCL 12-4-41. The current 12-hour-link, request-form model is described as "minimal." If the Secretary wanted to require identity verification, paid licensing, or other gates, those would also satisfy SDCL 12-4-41 (and might run into other policy concerns).

Q: Can someone sue if the access process is too cumbersome?
A: HB 1062 requires the Secretary to post, but doesn't specify how. If the access process were so cumbersome it effectively prevented access, a legal challenge under the posting mandate is conceivable. The current model has not faced such a challenge.

Q: What are the use restrictions in SDCL 12-4-9 and 12-4-41?
A: Voter file data cannot be sold, used for commercial purposes, or posted for unrestricted internet access. SDCL 12-4-9 contains procedures for handling voter file content. Misuse can lead to civil penalties and potentially criminal liability depending on the specific violation.

Q: Do other states have similar restrictions?
A: Yes. Most states limit voter file use to election-related purposes and prohibit commercial sale. The specifics vary widely. SD's framework, with the new weekly online posting plus the use restrictions, is in the middle of the national range.

Background and statutory framework

South Dakota's voter registration file is maintained by the Secretary of State and includes registered voter names, addresses, party affiliation, and voting history. The file serves multiple legitimate uses: election administration, redistricting, political party operations, candidate outreach, voter list maintenance, academic research, and journalism. Each use comes with its own privacy and policy tensions.

SDCL 12-4-9 sets out procedures for accessing voter file information. SDCL 12-4-41 sets the use restrictions: no commercial use, no sale, no unrestricted internet posting. Those restrictions have been part of SD law for over a decade.

HB 1062 added the weekly online posting mandate to SDCL 12-4-37. The legislative purpose was to make the file more accessible to legitimate users (parties, campaigns, researchers) without requiring an individual paper or phone request each cycle. The Secretary of State's implementation translated that mandate into the request-form-plus-time-limited-link model.

The AG's interpretation uses standard statutory harmonization principles. Faircloth v. Raven Industries states that when statutes appear to conflict, courts (and the AG) reasonably interpret both to give effect to both. State v. Young presumes the Legislature knew about existing law when enacting new provisions. The AG combined those principles to read the posting mandate and the use restrictions as parts of one coherent scheme rather than as conflicting commands.

Citations and references

Statutes:
- SDCL 12-4-9 (voter file access procedures)
- SDCL 12-4-37 (weekly online posting mandate, amended by 2025 HB 1062)
- SDCL 12-4-41 (no unrestricted internet access, no commercial use)
- 2025 South Dakota House Bill 1062

Cases:
- Olson v. Butte County Comm'n, 2019 S.D. 13, 925 N.W.2d 463
- Goetz v. State, 2001 S.D. 138, 636 N.W.2d 675
- In re Implicated Individual, 2021 S.D. 61, 966 N.W.2d 578
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
- Faircloth v. Raven Industries, Inc., 2000 S.D. 158, 620 N.W.2d 198
- State v. Young, 2001 S.D. 76, 630 N.W.2d 85

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1768
• Original PDF: https://atg.sd.gov/OfficialOpinions/AG%20Opinion%2025-02%20Rep.%20Taylor%20Rehfeldt.pdf

Original opinion text

OFFICIAL OPINION 25-02

Re: Official Opinion Concerning SDCL §§ 12-4-37 and 12-4-41

Dear Representative Rehfeldt,

In your capacity as State Representative, you have requested an official opinion from the Attorney General's Office on the following questions:

QUESTION:

Does the language in SDCL § 12-4-37 requiring the Secretary of State to post a weekly update of the statewide voter registration file on the Secretary of State's website conflict with the language of SDCL § 12-4-41 prohibiting information obtained from the statewide voter registration file from being placed for unrestricted access on the internet?

ANSWER:

No, the statutes can be interpreted in a manner that harmonizes their provisions and gives effect to both statutes.

FACTS:

The South Dakota Legislature passed House Bill 1062 during the 2025 legislative session. The bill, in part, requires the Secretary of State to post a weekly update of the statewide voter registration file to the Secretary of State's website. The language at issue in your request was enacted as an amendment to SDCL § 12-4-37. The language of SDCL § 12-4-41 prohibits statewide voter registration file information from being placed on the internet with unrestricted access. The question has arisen whether the duty imposed on the Secretary of State by SDCL § 12-4-37 conflicts with the prohibition found in SDCL § 12-4-41.

IN RE QUESTION:

As stated above, you have asked whether the identified provisions of SDCL §§ 12-4-37 and 12-4-41 conflict.

When interpreting statutes, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Comm'n, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 15, 636 N.W.2d 675, 681). "When the language in a statute is clear, certain and unambiguous, there is no reason for construction[.]" In re Implicated Individual, 2021 S.D. 61, ¶ 16, 966 N.W.2d 578-583. The intent of a statute "must be determined from the statute as a whole, as well as enactments relating to the same subject." In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 807 (citations omitted).

SDCL § 12-4-37 states in part: "the secretary of state shall post a weekly update to the statewide voter registration file to the secretary of state's website." SDCL § 12-4-41 states in part: "[a]ny information obtained from the statewide voter registration file ... may not be sold, may not be used for any commercial purpose, and may not be placed for unrestricted access on the internet." Upon initial review, the language of SDCL § 12-4-37 appears to conflict with the prohibition found in SDCL § 12-4-41.

"Where two statutes appear to conflict, it is [the reader's] duty to reasonably interpret both, giving effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable." Faircloth v. Raven Industries, Inc., 2000 S.D. 158, ¶ 7, 620 N.W.2d 198, 201 (cleaned up). The implied repeal of one statute by the language of another is also strongly disfavored unless legislative intent to repeal is apparent in the legislative act. Id., ¶ 10. I must also presume the Legislature was aware of the prohibition contained in SDCL § 12-4-41 when it enacted the posting requirement in SDCL § 12-4-37. State v. Young, 2001 S.D. 76, ¶ 11, 630 N.W.2d 85, 89 (Legislature is presumed to be aware of prior laws when enacting new provisions).

Reviewing your question with these principles in mind, it is my opinion that SDCL § 12-4-37 and § 12-4-41 can be interpreted in a manner that harmonizes the statutes and gives effect to both provisions.

Reading the two provisions together, I conclude that it is reasonable to interpret SDCL § 12-4-37 as specifically authorizing the Secretary of State to post the weekly update of the statewide voter registration file to the Secretary's website, while SDCL § 12-4-41 operates to prohibit that information from being placed on the internet with unrestricted access. Under SDCL § 12-4-37 the Secretary of State is authorized to post the weekly update of the statewide voter registration file to the Secretary's website. But the prohibition in SDCL § 12-4-41 preexisted the recent amendment to SDCL § 12-4-37. The Legislature is presumed to have been aware of the "unrestricted access" prohibition at the time it tasked the Secretary of State with posting the statewide voter registration file online. That prohibition must and can be given its full effect.

It is my opinion, that while the Secretary of State is authorized to post the statewide voter registration file to the Secretary's website, it is reasonable for the Secretary of State to place certain requirements on accessing that file in order to give full effect to the "unrestricted access" language of SDCL § 12-4-41. Currently, the Secretary of State requires anyone seeking to access the statewide voter registration file to fill out an online request form providing that individual's contact information and their acknowledgement that they have read the provisions of SDCL §§ 12-4-9 and 12-4-41. Submittal of the form generates a onetime use link to access the statewide registration file. The link expires after twelve hours. This is a reasonable, and minimal, restriction on access to the statewide voter registration file that allows the Secretary of State to maintain compliance with the "unrestricted access" prohibition of SDCL § 12-4-41.

CONCLUSION

The language of SDCL § 12-4-37 and § 12-4-41 may initially appear to conflict, but I conclude that the statues can be interpreted together to give full effect to the language of both statutes. As stated above, SDCL § 12-4-37 specifically authorizes the Secretary of State to post the weekly update of the statewide voter registration file on the Secretary's website, while SDCL § 12-4-41 prohibits the information from the statewide voter registration file from being made available on the internet with unrestricted access. The Secretary of State has established a request procedure that gives full effect to the requirements of both provisions. If the Legislature intended a different result, it should clarify its intent regarding the interaction between the language identified in SDCL § 12-4-37 and § 12-4-41.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL