October 6, 1988

Mr. Timothy J. Wilka 
Minnehaha County State's Attorney 
415 North Dakota 
Sioux Falls, South Dakota 57102

Official Opinion No. 88-47

Charge for lists of voters

Dear Mr. Wilka:

You have requested an official opinion from this office regarding the following factual circumstances:

FACTS: 

The Minnehaha County Auditor has received a request from the South Dakota Democratic Party's political director for a copy of the auditor's most recent Minnehaha County voter list. Consistent with the policy of the Minnehaha County Auditor's Office, the Democratic Party requested that the voter list be of the same format in which the records are normally maintained. Additionally, the Democratic Party requested that these computer-generated public records be provided on magnetic tape. The request noted "tape = all voters." The County Auditor's Office advised the director of the Democratic Party that the cost of the tape itself was $17.50. The layout cost was $5.00. The cost per voter name was $.01 per name. Consequently, the total actual cost for the requested material was $763.45 for 74,095 names. The Democratic Party has objected to the cost of this bill, maintaining that Minnehaha County's price should be much lower in order to be consistent with the price of voter registration lists in other counties. The Minnehaha County Auditor determines the cost of a voter registration list by reviewing overhead cost expense, materials, programmer time, computer data retrieval time, and other like factors. The cost is then approved by the county commission. Any requesting party, regardless of affiliation, is charged the same fee.

Based upon the foregoing facts, you have asked the following questions  regarding the cost of providing voter registration lists:

QUESTIONS: 

1.   Based upon SDCL 12-4-24.1, is it lawful for a county auditor to establish an actual cost which includes a tape charge, layout charge, and price per name so long as the actual cost is reasonable and charged uniformly to any requesting party identified by SDCL 12-4-24.1? 

2.   Given the different variables in computing the actual cost of providing voter lists, does South Dakota law prohibit the method or amount charged by the Minnehaha County Auditor for providing the voter lists? 

3.   Does SDCL 12-4-24.1 contemplate one statewide pricing list for providing voter lists?

IN RE QUESTION NO. 1:

Each of the questions you have asked involves a review of SDCL 12-4-24.1, which states: 

Upon request the county auditor shall provide at their actual cost no more than five copies of precinct registration lists to the chairman or central committee of each organized political party, and a copy to each candidate  requesting them, by the first Tuesday of the month preceding an election. (Emphasis added.)

Title 12, pertaining to the registration of voters, does not specifically state what the term "actual cost" means for the purposes of SDCL 12-4-24.1. Nor does Title 12 state who should calculate the actual cost of registration lists.

The Legislature, in SDCL 7-8-20(7), has, however, authorized county commissioners to "superintend the fiscal concerns of the county and secure their management in the best possible manner." This general authority to govern the financial concerns of the county allows the commissioners to delegate the authority to the county auditor to determine the actual costs of voter registration lists. The county auditor, as clerk of the board of county commissioners, according to SDCL 7-10-1, has the authority to determine the actual costs of voter registration lists and submit those costs to the county commission for approval. It appears that Minnehaha County has appropriately undertaken this procedure.

In regard to the computation of the actual cost itself, the county auditor has the authority to establish, and the county commissioners have the authority to approve, costs in the manner which they deem proper, so long as the costs are actual costs. According to Black's Law Dictionary 33 (5th ed. 1979), "actual cost" is a term which "imports the exact sum expended or loss sustained  rather than the average or proportional part of the cost." In other words, considering the facts presented, actual cost would be interpreted to mean that the county auditor may determine the appropriate cost, with the approval of the county commission, which is neither an average cost nor a price which has been determined by comparing the prices in other counties.

Therefore, in regard to your Question No. 1, it is lawful for the county auditor to establish an actual cost, including a tape charge, layout charge, and price per name when compiling a voter registration list.

IN RE QUESTION NOS. 2 AND 3:

Considering the response set forth concerning Question No. 1, the answer to your Question No. 2 is no. The answer to your Question No. 3 is no.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General