January 6, 1979

The Honorable Dorothy Nepstad 
State Representative
409 E. Fifth Street
Mitchell, South Dakota 57301

OFFICIAL OPINION NO. 78-2

Administrative rules of the South Dakota State Board of Elections

Dear Representative Nepstad:

You have requested an opinion as to the validity of several administrative rules adopted by the South Dakota Board of Elections on August 29, 1971. The specific rules you have inquired about state as follows:

5:02: 16:22. Abrogating of prior court decisions. Any prior decision of any court of the State of South Dakota interpreting the pro­cedure by which ballots are counted and canvassed inconsistent with this chapter is hereby abrogated.

5 :02: 16: 17. Identifying marks. No mark shall be construed as an identifying mark when in the opinion of the judges it could have appeared on the ballot in the normal course of voting through in­ advertence or inability to make a precise cross or check mark on the ballot. The following are identifying marks and shall not be counted:

Any name written on the ballot. Unless otherwise provided, any letter of the alphabet. Unless otherwise provided, any numeral.

The following are not identifying marks and shall be counted: Tears, smudges, erasures, coffee stains, different colors of ink or pencil, voting for two candidates for one office, holes in the ballot.

The following examples shall be counted and shall not be con­strued as identifying marks nor shall they be rejected for im­proper casting of the ballot.









The specific questions you have asked are:

QUESTIONS:

1. Are the above rules consistent with and not in excess of
267 statutory authority granted to the State Board of Elections to adopt rules?

2. If the rules are in excess of the Board's authority, what are the possible corrective measures?

Before specifically addressing your questions, I feel compelled to briefly describe the rule-making process and the role of the Office of Attorney General in that process. In so doing, I can perhaps explain why rules of the nature of those herein being discussed actually do sometimes become effec­tive rules.

The Administrative Procedures Act (SDCL 1-26-6.5) requires the Office of Attorney General to review all proposed rules as to their legality and notify the submitting agency of any objections prior to the date of the hearing for the adoption of said rules. In practice, this means that the Office of At­torney General is formally served with a copy of the proposed rules and, prior to the date of hearing, submits a letter containing the comments and objections to the agency. Then, either prior to the hearing or prior to the final adoption of the rule, the agency usually contacts the Office of At­torney General to discuss and reconcile objectionable rules. Generally, upon being assured that the objections have been met and satisfied, the Of­fice of Attorney General will, by signature, approve the finally adopted rules of the agency as a whole without any further scrutiny. From the stand­point of time it is not possible to give each set of submitted rules another total review. It is the duty of the submitting agency to meet the legal re­quirements to the satisfaction of the Office of Attorney General. However, if the Attorney General is made or becomes aware of the fact that not all legal objections have been met, he may refuse to approve said rules thus voiding the entire procedure and requiring the agency to start over. SDCL 1.26.6(4).

IN RE QUESTION NO. 1:

The rules which you have questioned are Rules 5:02: 16: 17 and 5:02: 16:22. This office, in a letter dated August 25, 1977, commented on these par­ticular rules as follows:

13. Rule 5:02: 16: 19. In my opinion this rule is contrary to SDCL 12-2-8 and the statutes which state how a ballot is to be marked (i.e. "X" or "√" in the square or circle).

16. Rule 5:02: 16:22. This is clearly outside the scope and in excess of the legal effect of a rule.

These rules were discussed with members of the State Board of Electioins and this office was left with the assurance that the rules would be amended to overcome the legal objections. Obviously this was not the case; the legal objections to the rules were not satisfied. The rules were signed by this of­fice after being assured that the legal objections had been satisfied. Ap­proval under these circumstances is not binding in my view and consequent­ly the approval given is hereby withdrawn until the legal objections to the rules are satisfied.

IN RE QUESTION NO.2:

In my answer to Question No. 1, I have expressed my opinion on the specific rules referenced in your request. In response to your Question No. 2, I will merely discuss, in general, some of the procedures available to change or clarify an administrative rule.

The Administrative Procedures Act (SDCL 1-26) provides a number of recourses. SDCL 1-26-15 provides:

Each agency shall provide by rule for the filing and prompt disposi­tion of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency. Rulings disposing of petitions have the same status as agency deci­sions or orders in contested cases.

SDCL 1-26-14 affords another form of declaratory relief through the circuit court if it can be shown a particular rule adversely affects one's legal rights.

SDCL 1-26-13 is self-explanatory and provides:

1-26-13. An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. The petition shall contain the text of substance of any new rule sought to be repealed, reasons for the proposal, and the name and address of the petitioner. Within thirty days after submission of a petition, the agency either shall deny the petition in writing (stating its reasons for the denials) or shall initiate rule-making proceedings in accor­dance with § 1-26-4. The agency shall serve a copy of any petitions and denials on the members of the interim rules committee.

Another approach is the introduction of legislation in one of several forms. As 1 have earlier stated, the Legislature is the sole grantor of authority to the State Board of Elections. Therefore, legislation could take the form of limiting the rule-making authority of the Board in certain areas, enacting substantive law to supersede certain rules, or merely repealing specific rules.

The above are not intended to be an exhaustive list of remedies, but only il­lustrative of the possibilities.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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