October 2, 1979
The Honorable Alice Kundert
Secretary of State
State Capitol
Pierre, South Dakota 57501
The Honorable Tim P. Johnson
State Representative
Post Office Box 272
Vermillion, South Dakota 57069
Official Opinion No. 79-38
Voter registration
Dear Miss Kundert and Mr. Johnson:
You have requested an official opinion from this office based upon the following factual situation.
FACTS:
It has come to my attention that there are presently varying interpretations being applied to HB 1150 (1979 Session Laws, Ch. 96) by county auditors around the state which is resulting in a lack of uniformity in voter registration procedures from county to county.
At issue is whether county auditors must authorize duly certified notaries public to register voters upon a notary's application and completion of terms set forth in the act, or whether county auditors may at their discretion deny authorization to register voters to a set number or to none at all for that matter. It appears that in some counties every applying notary is read the instructions and authorized to register voters under terms of the act while in other counties, no notaries, or only a limited number will be allowed to have the instructions read to them and authorized to register voters.
Based upon the above facts, Mr. Johnson has asked the following question:
QUESTION:
Must county auditors authorize duly certified notaries public to register voters upon a notary's application and completion of the terms set forth in the act, or may county auditors, at their discretion, deny authorization to notaries and limit the number of persons authorized to register voters?
In addition, several related questions have been raised by the Secretary of State with respect to the same issues, and consequently, I am taking the liberty of addressing those questions in this opinion rather than dealing with them by separate opinion. Those additional questions are:
1. Do the county auditors have to allow a notary public from another county to come into their county, and pick up cards and register voters?
2. Can the county auditors demand to see either a notary seal or a notary commission of a notary from another county coming in to register voters in their counties?
3. If a county auditor has a school for certifying notaries to register voters, and a notary fails to show up, can the county auditor later refuse to certify that notary for failing to show up?
4. May out-of-state notaries be authorized to register voters?
5. Can the county auditor or any other person registering a voter demand proof of identity or proof of residency?
First of all, in response to the question Mr. Johnson raised, it is my interpretation of Chapter 96 of the 1979 Session Laws that county auditors do not have the discretion to refuse to authorize duly qualified notaries public in South Dakota from authorizing such notaries to engage in the registration of voters. This registration procedure is not one which enables a system of discretionary selection or discrimination whereby the auditor can select certain notaries to be the ones that will be authorized to register voters.
IN RE QUESTION NO. 1:
With respect to the first question raised by the Secretary of State, I believe the answer is yes. Under the present law a notary public is not limited to registering voters only in the county of the notary's residence. Such out-of-county notaries would, however, need to comply with all the requirements of Chapter 96 of the 1979 Session Laws, including the provisions of section 3 which require the return of all registration materials to the county auditor.
IN RE QUESTION NO. 2:
In my opinion the answer to this question is yes. Before a person is entitled to receive a written authorization to register voters under Chapter 96 of the 1979 Session Laws, it is proper for the county auditor to inquire into the person's status as a notary public or other officer, which is authorized by law to administer oaths or acknowledgements. (SDCL 12-4-7.)
IN RE QUESTION NO. 3:
The answer to the Secretary of State's third question is no. A county auditor can not refuse to give written authorization to a duly qualified notary to register voters merely because the notary shows up for the “instruction” required by Chapter 96 of the 1979 Session Laws, at a time other than an organized “school” which the auditor would have established.
IN RE QUESTION NO. 4:
It is my view that persons who seek to qualify to get written authorization to register voters in South Dakota, on the ground that they are a notary public from some other state, have not shown a sufficient status to comply with the provisions of SDCL 12-4-7 or Chapter 96 of the 1979 Session Laws. Consequently, such persons would not qualify to register voters in South Dakota on this basis.
IN RE QUESTION NO. 5:
With respect to the Secretary of State's final question, I believe it is clear that a county auditor can ask for some proof of identity in registering a voter. See SDCL 18-4-18, 18-5-5. I do not believe, however, that the auditor can independently inquire into proof of residency if the individual signs the required registration documents promulgated by the State Board of Elections.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
MVM:DOC:esp
cc: South Dakota County Auditors
