STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 24, 1974
Mr. Gene Paul Kean
State's Attorney
Minnehaha County Courthouse
Sioux Falls, South Dakota 57102
OFFICIAL OPINION NO. 74-45
Election procedure
Dear Mr. Kean:
You have made reference to South Dakota Compiled Laws Title 12, Election Code, and have requested an opinion on the following specific questions:
1. Must a person, who is already a registered voter within a county, reregister if he moves from one precinct to another within the same county prior to an election?
2. If a voter resides in Precinct A and is registered to vote in Precinct A, but prior to the election moves to Precinct B within the same county, in which Precinct does he vote?
3. Who may challenge a person’s right to vote?
4. What procedure is followed in challenging a person’s right to vote?
5. Is SDCL 12-18-9 to be interpreted to mean that the party Central Committee may only appoint one poll watcher who must remain at the polls all day, or is this statutory provision to be interpreted to mean that only one poll watcher for each political party is allowed at the polling place at anyone specific time?
6. What activity may the poll watcher engage in while at the polling area during election hours?
The answer to Question 1 is, NO.
The rule governing new registration is contained within SDCL 12-4-12. The section of the Code requires a new registration in only two instances: If a person moves from one state into South Dakota, or, if a person moves from one county to another.
SDCL 12-4-12 reads as follows:
Any person moving to this state from another state, or moving from this state to another state, or from one county to another in this state, shall be required to make a new registration; new registrants previously registered elsewhere in this state shall be required to sign an authorization which shall be forwarded by the registration official to the auditor of the county of former registration, or other appropriate registration official, who shall remove the registrant's name from the registration list.
This code provision was completely rewritten by the 1974 reenactment, Chapter 118, Section 17. With this change in the law, a change of precincts within the same county is no longer a hindrance to the right of suffrage, and reregistration is not required prior to voting under this particular factual situation.
QUESTION 2:
Under present law, if the voter's name appears on the voting list in Precinct A, he may vote there even though he no longer resides in Precinct A (SDCL 12-18-7.1). Under prior law, the voter was required to reside in the precinct he was voting in (SDCL 12-3-4, repealed 1973). Prior to the election, the voter may, of course, request the county auditor to transfer his name to the voting list of the new Precinct B, or the auditor, acting on his own, can transfer the name to Precinct B after giving notice to the voter (SDCL 12-4-13). In either of those instances then, the voter would cast his ballot in the new Precinct B, because that is where his name will be found on the voting list. If a voter's name has erroneously been omitted from a precinct voting list, the voter may nevertheless vote upon confirmance of the error with the county auditor. (SDCL 12-18-7.1 and 12-18-7.2)
QUESTIONS 3 and 4:
Challenges to one's right of suffrage are permitted by South Dakota Compiled Laws only in a very few limited circumstances. A challenge to one's registration as a voter, prior to election day, can be made either by the county auditor or by any interested person. (SDCL 12-4-23.) A challenge may be made only for those specific grounds found in 12-4-18 which are that the person has been declared a mentally incompetent or has been convicted and sentenced for a felony. No other grounds are set forth for the challenge.
On election day, a challenge to a person's right to vote is permitted only under the provisions of SDCL 12-18-10. SDCL 12-18-10 reads as follows:
When a person shall make application for ballots, or where absentee ballot has been cast, his right to vote at that poll and election may be challenged only as to his identity as the person registered whom he claims to be or on grounds that within 15 days preceding the election he has been convicted of a felony or declared by proper authority to be incompetent, and such proceedings shall thereupon be had before the judges of election, who shall determine from the evidence presented whether or not the person shall be permitted to vote and they shall indicate beside the name on the registration list the grounds stated and the result of their decision.
It is not clear from the statute as to who may make the challenge. However, in view of the oath that election officials must take before each election (see SDCL 12-15-9 and 12-15-10), the judges and clerks of the elections have an inherent responsibility to challenge potential voters when one of the three grounds as set forth in SDCL 12-18-10 is ascertained.
The law is unclear whether on election day anyone besides the judges and clerks of election can challenge voters at the polling place. Unlike SDCL 12-4-23, where it is specifically allowed for any person to challenge a voter's name on the registration list, SDCL 12-18, "Arrangements and Conduct of Voting," does not have the same language. Because of the absence of this language, it would appear to be the intent of the Legislature that only the judges and clerks of the election at that particular polling place may challenge voters. However, if anyone else has reason to believe that the identity of the person about to vote should be questioned, or that the person has been declared an incompetent, or has been convicted and sentenced of a felony, this should immediately be brought to the attention of one of the judges of the election who should then make the inquiry of the prospective voter. Such a procedure would then be consistent with the obligation and duty of each judge and election official as these duties appear in SDCL 12-15 and 12-18.
QUESTION 5:
SDCL 12-18-9 now reads as follows:
The chairman of the party county central committee of each political party and each independent candidate shall have the right to appoint one poll watcher in each precinct. Each such poll watcher must be a registered voter of the precinct in which he is appointed to act. Poll watchers shall be permitted where they can plainly see what is done within the polling place, except within the voting booths or voting machines and such polling place shall be arranged that poll watchers can be so accommodated.
It appears that the abuse which the Legislature was intending to prevent in this particular instance was to prevent numerous persons of one political party from crowding and interfering with the election officials at the polling place. It would be a strained interpretation of the law to say that the Legislature intended each political party to allow only one person at the particular precincts for the whole of the election day. The polling places in South Dakota are opened at 8:00 in the morning and remain open until 7:00 in the evening. This would be a particular hardship if the law allowed only one person to remain at the polling place all day. It would be a further problem if the person had to remain at the polling place until all of the ballots were counted and no one was allowed to come in and spell him during this particular period of time. This is especially so in some of the larger rural areas where voting machines are not used. It is therefore my opinion that the law should be read to mean that each political party or each independent candidate is allowed only one poll watcher at the poll at anyone specific time, but different poll watchers can be used during the day so only one is there at a time.
In order that the election judge in each precinct may know who is to represent a particular political party or independent candidate, it is suggested that a list of poll watchers be provided to the election judge.
QUESTION 6:
SCL 12-18-9.1 reads as follows:
The superintendent of elections may order poll watchers and electors waiting to vote to position themselves in such places that they can neither see into voting booths or voting machines occupied by electors in the act of voting nor interfere with the official actions of the election board. (See also SDCL 12-18-9, previously cited.)
From the reading of 12-18-9 and 12-18-9.1, the election judges and officials are required to arrange the polling place in such a manner so that poll watchers can be accommodated. Depending upon the discretion of the election judge, this could be arrangements to "have the poll watchers seated at the table with the election judges or at a nearby table so that the poll watchers can plainly see what is being done in the immediate area. The statutory provision also provides that poll watchers shall be permitted where they can plainly see what is being done. In order to give this particular arragnement full force and effect, poll watchers should be placed in such a position so they can hear the names of the voters who are registering to vote. It is one of the primary functions of poll watchers to see who is voting so that they may report this back to their respective political parties. Election officials should clearly and loudly enough for the poll watchers to hear read off the name of each person after that person has announced his intention to vote. Poll watchers, however, may not be seated in such a fashion that they can view into the voting booths or to the voting machines. When the elector presents himself to the election official, the election official should repeat the name of the person so that the poll watchers have an opportunity to hear who is presenting himself for voting at that particular precinct.
Respectfully submitted,
Kermit A. Sande
Attorney General
KAS:MDT:jms
