December 17, 1979

Mr. Jack Hanson 
State's Attorney 
Minnehaha County Courthouse 
Sixth and Dakota 
Sioux Falls, South Dakota 57102

Official Opinion No. 79-45

Voter registration by notaries public from other states

Dear Mr. Hanson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Mr. and Mrs. A live in Arizona on a seasonal basis.  They are residents of South Dakota for voting purposes.  A request is made by Mr. and Mrs. A for a voter registration card.  Because of the distance back to South Dakota, they desire to use an Arizona notary public (or any other official who may administer an oath) for the purposes of certifying their registration card. Under Official Opinion 79-38, it would appear that the County Auditor would have to appoint the notary public in Arizona as her deputy auditor or give authorization to such notary public before the voter registration would be valid.

Based upon the above facts, you have asked the following question:

QUESTION: 

Does the County Auditor have to deputize or authorize an out-of- state notary public (or other official authorized to administer oaths) before such notary may notarize a voter registration card for an individual who lives out- of-state but who has a legal voting residence in South Dakota?

As noted in your opinion request, the issue here presented was not addressed in Official Opinion 79-38.  You further comment, and correctly so, that the thrust of Official Opinion 79-38, in interpreting Chapter 96 of the 1979 Session Laws, focuses on the matter of county auditors having control over voter registration procedures, giving them their ability to prevent a horde of out-of-state notaries from coming into South Dakota and registering voters en masse.

The fact situation presented above is quite different from the factual situations considered in Official Opinion 79-38.  Under the fact situations presented here, I would agree with you that it certainly is impractical to require the South Dakotans living in Arizona on a seasonal basis, but maintaining their voting residence in South Dakota, to have to find an 'authorized' notary in Arizona to register to vote in South Dakota.  Clearly, this result was not contemplated by the Legislature in passing Chapter 96 of the 1979 Session Laws.  As discussed previously, the thrust of Chapter 96 of the 1979 Session Laws was to deal with en masse registrations in South Dakota by notaries who had no special training in voter registration matters or any specific procedure for accountability for the registration process.

Based on the above, it is my opinion that the answer to your question is no.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:DOC:esp