The South Dakota Board of Elections found a way to trash a petition for changes to voter registration rules without ruling on the merits of the proposal… and in the process excluded South Dakotans from participating in the administrative rule-making process.
Last week the League of Women Voters and other friends of democracy petitioned the Board of Elections to allow county auditors to accept photocopies of driver licenses, tribal identification cards, and other official IDs as proof of citizenship for voter registration. I didn’t think their request would hold legal water, since the new requirements in 2026 Senate Bill 175 clearly separates those IDs from passports, birth certificates, and other documents for which it allows photocopies.
But yesterday the Board of Elections found a legal dodge allowing it to ignore the petition:
The South Dakota Board of Elections on Wednesday refused by a 5-2 vote to move forward on various proposed rule changes that the South Dakota League of Women Voters had petitioned the board to consider.
Board member Scott McGregor of Rapid City, an attorney, made the motion to not go forward with considering the league’s petition. Another board member, McPherson County state’s attorney Austin Hoffman of Eureka, agreed and seconded McGregor’s motion. McGregor is a Democrat, while Hoffman is a Republican.
McGregor said the definitions section of the South Dakota administrative procedures act specifically defines a person as “all political subdivisions and agencies of the state” and the league didn’t meet that requirement.
A subsequent section says, “An interested person, other than an inmate as defined in § 1-15-20.1, may petition an agency requesting the promulgation, amendment, or repeal of a rule” [Bob Mercer, “State Elections Board Rejects League’s Voting Rules Petition,” KELO-TV, 2026.07.08].
The two cited statutes appear to conflict. SDCL 1-26-1(7) does indeed make that ridiculously limited definition of person and apply it to all of Chapter 1-26, Administrative Procedure and Rules. But the Legislature appears to have ignored that definition in multiple statutes within that chapter:
- SDCL 1-26-13, the statute Mercer cites, excludes inmates from petitioning for rule changes. Inmates are not political subdivisions or agencies of the state, so if the definition in 1-26-1 really applied, that exception wouldn’t be needed. The exception indicates that SDCL 1-26-13 envisions broad citizen participation in the rule-making process.
- Immediately before defining person, SDCL 1-26-1(6) defines party as “each person or agency…,” indicating that a person is something other than an agency.
- SDCL 1-26-1.2 says all meetings of the Interim Rules Review Committee “are open to the public and any interested person may be heard and present evidence.” Referring to any interested person immediately after open to the public suggests that interested persons may come from the public to which the meeting is open.
- SDCL 1-26-2 declares confidential “materials derogatory to a person but such information shall be made available to the person to whom it relates.” It is unlikely the Legislature meant to shield only state agencies and political subdivisions from the release of derogatory materials while allowing the publication of harmful information about private individuals. Person in this confidentiality provision refers to everybody.
- SDCL 1-26-4 says an agency proposing a rule change “shall afford all interested persons reasonable opportunity to submit amendments, data, opinions, or arguments at a public hearing….” Again, persons and public appear side by side, suggesting the Legislature envisions members of the public stepping forward at these public hearings to give their two cents.
- SDCL 1-26-4.5 and 1-26-4.6 refer to “a person” who “has a vested right in any real or personal property….” These two statutes cannot have meant political subdivisions and agencies exclusively; it refers to real people who own property.
- SDCL 1-26-4.7 requires reversing rule-adoption procedure if “The notice given prior to the proposed rule’s adoption was not sufficient to give adequate notice to persons likely to be affected by the proposed rule” or “The proposed rule is not a reasonable implementation of the law as it affects the convenience of the general public or persons likely affected by the proposed rule….” Again, public and persons—the Legislature is trying to protect people, not just governments and agencies.
- SDCL 1-26-12.1 requires rule-adopting agencies “To assist interested persons dealing with it” by “mak[ing] available, either electronically or through paper copy, a list of the agency’s rules and a descriptive statement of its central and field organization. This information includes the locations of persons and places from which the public can secure information, make submittals or requests, or obtain decisions.” Not only does this statute clearly envision public participation in the implementation of rules, but it also orders agencies to help all the public—all interested persons—participate.
- SDCL 1-26-17.1 allows any person “who is not an original party to a contested case and whose pecuniary interests would be directly and immediately affected by an agency’s order made upon the hearing may become a party to the hearing by intervention, if timely application therefor is made.” This statute does not refer to the budgets of political subdivisions and agencies; it refers to regular folks whose income and other financial interests may be affected by state rules. Maybe McGregor’s narrow reading of SDCL 1-26-1(7) will hold up in a measly voting-rights dispute, but just wait until the next rule affecting pipelines comes up and that regulatory board tells big pipeline corporations that they can’t intervene in the contested case.
- SDCL 1-26-19.1 empowers rule-making agencies to subpoena witnesses or interested parties and warns, “Failure of a person to obey a subpoena issued pursuant to this chapter may be punished as a contempt of court in the manner provided by chapter 21-34.” But if person refers only to political subdivisions and agencies, we regular folks can ignore any subpoena from an agency in any contested case, right?
- SDCL 1-26-32 refers to the court’s power to require a bond “to indemnify or protect the state or agency or any person from loss, damage, or costs” caused by a stay. State, agency, or any person—this statute plainly contradicts the SDCL 1-26-1(7) definition, distinguishing person from state and agency.
Amidst these conflicting uses of person, the narrow 1-26-1(7) definition is the exception, the outlier, and the apparent error, while the consistent, broad, common-sense definition made apparent in multiple statutes in Chapter 1-26 is the rule.
Mercer notes that the Board’s new, narrow reading of person could change the traditional, participatory approach to rule-making:
The board’s narrow reading of the law could affect other state government boards and commissions. The South Dakota Game, Fish and Parks Commission for example receives and considers rules-change petitions from sportsmen at many of its monthly meetings [Mercer, 2026.07.08].
But the bulk of Chapter 1-26 and its inclusive references to person indicate the GF&P Commission and other agencies are correct to allow members of the public to petition for rule changes. The Board of Elections has chosen to raise one overly narrow statute above traditional practice and the weight of numerous other active statutes that reject that narrow definition.