CHAPTER 83
(SB 13)
Elections, implementation of "Help America Vote Act."
ENTITLED, An Act to
implement certain provisions of the federal Help America Vote Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That chapter
12-18
be amended by adding thereto a NEW SECTION to read as
follows:
If any person is not authorized to vote pursuant to
§
12-18-7.2, is successfully challenged under
§
12-18-10, or is otherwise denied the ability to vote and the person maintains that he or she is
currently registered to vote in that precinct, the person may cast a ballot which shall be called a
provisional ballot. A member of the precinct election board shall notify any person who is denied
the ability to vote that the person may cast a provisional ballot.
Section
2.
That chapter
12-18
be amended by adding thereto a NEW SECTION to read as
follows:
Before giving a person a provisional ballot, the person shall complete an affirmation. The
person's name shall be written in the pollbook along with a designation that the person has cast a
provisional ballot. The person shall be given the ballot appropriate to the precinct in which the
person is claiming to be registered, along with a provisional ballot envelope. After the person votes,
the person shall seal the ballot in the provisional ballot envelope and complete the statement on the
envelope. The envelope shall then be placed in the ballot box. The provisional ballot and provisional
ballot envelope shall be prescribed by the State Board of Elections.
Section
3.
That chapter
12-20
be amended by adding thereto a NEW SECTION to read as
follows:
If the ballot box for any precinct is opened prior to ballot counting, each provisional ballot
envelope shall be removed and returned unopened to the person in charge of the election with the
other election supplies.
Section
4.
That chapter
12-20
be amended by adding thereto a NEW SECTION to read as
follows:
Prior to the official canvass, the person in charge of the election shall determine if the person
voting by provisional ballot was legally qualified to vote in the precinct in which the provisional
ballot was cast. In making this determination, the person in charge of the election shall consider the
information provided on the affirmation and diligently investigate the voter registration status of
the person. If there is no evidence that a voter registration form had been completed by the person
showing a residence address in that precinct and returned to an official voter registration site prior
to the deadline to register to vote for the election, the provisional ballot is invalid.
Section
5.
That chapter
12-20
be amended by adding thereto a NEW SECTION to read as
follows:
Each county auditor shall decide if the provisional ballots are to be counted by hand or by
automated tabulating equipment. If a decision is made to count the ballots by hand, a
provisional ballot counting board shall be appointed as provided in
§
12-15-1. If the
provisional ballots are to be counted by automated tabulating equipment, a resolution board
and tabulation machine operators shall be appointed as provided in chapter 12-17B.
Section
6.
That chapter
12-20
be amended by adding thereto a NEW SECTION to read
as follows:
The provisional ballot counting board or resolution board and tabulation machine operators
shall convene one hour prior to the convening of the canvassing board. The provisional ballots,
which the person in charge of the election has determined are not invalid according to section
4 of this Act, shall be counted. Upon completion of the count, the provisional ballot counting
board or resolution board shall complete a certification of provisional ballot count and give the
certification to the canvassing board. The certification form shall be prescribed by the State
Board of Elections.
Section
7.
That chapter
12-20
be amended by adding thereto a NEW SECTION to read
as follows:
The county auditor may establish an alternative time prior to the official canvass for
provisional ballot counting provided that notice of the time and location is given to the county
party chairperson of each political party.
Section
8.
That chapter
12-20
be amended by adding thereto a NEW SECTION to read
as follows:
Within ten days after the official county canvass each person voting by provisional ballot
shall be sent by the person in charge of the election a notice advising whether the provisional
ballot was counted. The notice shall be prescribed by the State Board of Elections.
Section
9.
That
§
12-4-38
be amended to read as follows:
12-4-38.
The statewide voter registration file maintained by the secretary of state shall be
considered a duplicate file of the official voter registration records held in each county office.
If there is any discrepancy between the statewide voter registration file maintained by the
secretary of state and the master registration file maintained by the county auditor, the master
registration file maintained by the county auditor is the official file.
However, for federal
elections the statewide file shall be the official voter registration file. Upon request from the
secretary of state, each county auditor shall transmit the county's entire voter file to the state
voter registration file.
Section
10.
That
§
12-4-2
be amended to read as follows:
12-4-2.
The county auditor has complete charge of maintaining the voter registration
records in the county.
Voter registration shall be conducted by
all
each
county
auditors
auditor
and municipal
finance
officers
officer
. Voter registration shall be available
at the secretary of state's office and
at those locations which provide
driver's
driver
licenses; food stamps; temporary assistance for
needy families; women, infants, and children nutrition program; medicaid; military recruitment;
and assistance to the disabled as provided by the Department of Human Services.
Section
11.
That chapter
12-4
be amended by adding thereto a NEW SECTION to read
as follows:
Any person registering to vote shall provide his or her driver license number and state of
issuance on the voter registration form. If a person does not have a driver license, the person
shall provide the last four digits of his or her social security number on the voter registration
form. If a person does not have a driver license or social security number, the person may only
register at the county auditor's office and shall sign a statement of such fact. The statement
shall be prescribed by the State Board of Elections.
Section
12.
That chapter
12-4
be amended by adding thereto a NEW SECTION to read
as follows:
At the time voter registration information is transmitted from a county to the statewide
voter registration file, the authenticity of the driver license number shall be verified with the
driver license database. If the person has provided the last four digits of his or her social
security number, the social security database shall be checked to determine that the number,
name, and date of birth are accurate and that this information does belong to such person. If
any of this information is reported as not being accurate, the county auditor may not file the
voter registration and shall attempt to get the correct information with the process provided
in
§
12-4-5.3. The State Board of Elections may promulgate rules, pursuant to chapter 1-26,
determining technical parameters for the driver license and social security database verification.
Section
13.
That chapter
12-4
be amended by adding thereto a NEW SECTION to read
as follows:
The secretary of state shall provide any absentee uniformed services and overseas voter
information on voter registration procedures and how to vote absentee.
Section
14.
That
§
12-19-2
be amended to read as follows:
12-19-2.
An absentee voter desiring to vote by mail may apply to the person in charge of
the election for an absentee ballot. The application or request shall be made in writing and be
signed by the applicant and state the applicant's place of voting residence and the reason for
which the ballot is requested. The application or request may be used to obtain an absentee
ballot for all elections in that calendar year conducted by the jurisdiction receiving the
application or request if so indicated.
If the application or request is from a voter identified as
being covered by the Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C.
1973ff-1) as of January 1, 2003, an absentee ballot shall be provided to the voter for each
federal election through the next two general elections.
The ballot shall be sent to the voter's
residence, as shown in the voter registration file or any temporary residence address designated
in writing by the voter, at the time of applying for the absentee ballot. The State Board of
Elections shall promulgate rules, pursuant to chapter 1-26, to prescribe a form which
delineates the reasons for an absentee ballot request and allows the voter to indicate the proper
reason for the request. The person in charge of the election shall stamp the application with
the date it was received. The application may be made by letter or upon any form containing
the required information or upon any form prescribed by the State Board of Elections or the
postcard form referred to in
§
12-4-8.1, executed by persons authorized in accordance with
the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) (42 U.S.C.
§
1973ff).
The person in charge of the election shall preserve a record of the name, post office address,
and voting precinct of each applicant and, except as provided by
§
12-19-45, deliver the record
to the superintendent of the election board of the home precinct of the applicant.
Section
15.
That
§
12-4-18
be amended to read as follows:
12-4-18.
The Department of Health, in conjunction with preparation of abstracts of vital
statistics records made pursuant to
§
34-25-46, shall, on a monthly basis, prepare an abstract
for the county auditor, listing names and addresses of voters who have been residents of that
county and have died.
The register of deeds shall deliver a list of the names and addresses of all persons who have
died and whose burial permits were filed in the office during the previous month to the county
auditor of the decedent's county of residency by the tenth day of each month.
The clerk of courts shall, within fifteen days after the close of each month, prepare and
deliver to the auditor an abstract from the records of the names of persons declared mentally
incompetent
, convicted, and sentenced to the adult state penitentiary system for a felony, or
for whom an application or petition for probate is filed,
in the preceding month.
The clerk of
courts shall give notice of all felony sentences to the adult state penitentiary system including
a suspended execution of a sentence.
The notice shall be sent to the county auditor of the
county in which the person declared incompetent
or convicted
resides. The county auditor
shall remove from the master registration list the names of persons identified in accordance
with the information provided pursuant to this section and names of those sentenced to
imprisonment in the federal penitentiary system and may remove names published in an
obituary.
Voter registration records maintained in or transmitted to the statewide voter registration
file shall be matched with the death records maintained as vital statistics records by the
Department of Health and the records of felony convictions maintained by the Unified Judicial
System. Any voter identified as deceased or who receives a felony sentence to the adult state
penitentiary system including a suspended execution of a sentence shall be removed from the
voter registration records. The State Board of Elections may promulgate rules, pursuant to
chapter 1-26, determining how voter registration records shall be matched.
This section is effective on January 1, 2004.
Section
16.
The State Board of Elections shall resolve any complaint filed under Section
402 of the Help America Vote Act of 2002, as of January 1, 2003, in accordance with the
contested case provisions of chapter 1-26. The complaint shall be signed, notarized, and filed
with the secretary of state. The board shall resolve the complaint within ninety days of its
filing. The State Board of Elections may promulgate rules, pursuant to chapter 1-26, governing
the procedure for the complaint process.
Section
17.
If the State Board of Elections does not resolve the complaint within ninety
days of filing, the complainant may ask the circuit court for alternative dispute resolution by
appointing an impartial third party to serve as an arbitrator to resolve the dispute. The
arbitrator shall resolve the dispute within sixty days.
Section
18.
The arbitrator shall appoint a time and place for a hearing and serve each party
personally or notify each party by registered or certified mail not less than five days before the
hearing.
Section
19.
The arbitrator may issue subpoenas for the attendance of witnesses and for the
production of books, records, documents, and other evidence and may administer oaths. Any
subpoena shall be served and enforced in the manner provided by law for the service and
enforcement of subpoenas in a civil action.
Section
20.
On application of either party and for use as evidence, the arbitrator may
permit a deposition to be taken, in the manner and upon the terms designated by the arbitrator,
of a witness who cannot be subpoenaed or is unable to attend the hearing. Any provision of
law compelling a person under subpoena to testify is applicable.
Section
21.
Unless otherwise provided by an agreement, each party is entitled to be heard,
to present evidence material to the controversy, and to cross-examine witnesses appearing at
the hearing.
Section
22.
Unless otherwise provided by an agreement, the arbitrator may adjourn the
hearing from time to time as necessary and at the request of a party and for good cause. The
arbitrator may hear and determine the controversy upon the evidence produced
notwithstanding the failure of a party duly notified to appear.
Section
23.
The resolution pronouncement shall be in writing and signed by the arbitrator.
The arbitrator shall deliver a copy to each party personally or by registered or certified mail.
Section
24.
The arbitrator's expenses and fees, together with other expenses, not including
counsel fees, incurred in the conduct of arbitration, shall be paid as provided in the resolution
pronouncement.
Section
25.
Within ten days of pronouncement, the circuit court may vacate a resolution
pronouncement if:
(1) The resolution was procured by corruption, fraud, or other undue means;
(2) There was evident partiality or corruption by the arbitrator or misconduct
prejudicing the rights of any party;
(3) The arbitrator exceeded his or her power; or
(4) The arbitrator refused to hear evidence material to the controversy or conducted
the hearing as to prejudice substantially the rights of a party.
If the resolution pronouncement is vacated, the circuit court shall appoint a new arbitrator
to resolve the dispute in the manner provided in sections 17 to 25, inclusive, of this Act.
Signed March 4, 2003.