05:02:23:01. Oath of post-election audit board. Before performing any duty pertaining to the post-election audit of an election, each post-election audit board member shall make the following oath or affirmation:

I, (name), do solemnly swear (or affirm) that I will, to the best of my ability, impartially perform the duties of post-election audit board member in good faith according to law, and that I meet the qualifications to serve as a member of the post-election audit board.

Source: 50 SDR 12, effective August 8, 2023.

General Authority: SDCL 12-1-9(11), 12-17B-18.

Law Implemented: SDCL 12-17B-18.

05:02:23:02. Definitions. Terms used in this chapter mean:

(1) “Counted ballot,” a voted ballot counted by the post-election auditing board in at least one contest;

(2) "Seal," A security mechanism using strategically placed serialized or tamper-evident materials that alert officials if a device used in the elections process has potentially been altered or accessed without authorization;

(3) “Board member,” A member of the post-election auditing board meeting the requirements of SDCL 12-17B-18;

(4) "Over vote," a race in which more votes were cast on a ballot than allowed for that race;

(5) “Voted ballot,” a ballot placed in the ballot box at any time;

(6) “Write-in vote,” a name written on a ballot in an attempt to indicate a vote for that person; and

(7) “Manual count,” as defined by counting other than be electronic device.

Source: 50 SDR 63, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18.

05:02:23:03. Notice of appointment of post-election auditing board. The notice of appointment of a post-election auditing board must be in the following form:

STATE OF SOUTH DAKOTA )

) SS NOTICE OF APPOINTMENT

COUNTY OF _____________ )

____________________ Auditing Board Member, ______________ party

(add/remove lines as necessary)

You are appointed as a member of the post-election audit for the 20_____ (primary or general) election in _____________, _____________County, on (June or November) _____, 20____. Please report to __________ at _____ a.m./p.m. the day of the post-election audit. If you are unable to serve, please notify the county auditor immediately.

The post-election audit training will be held at ________________ on the ____ day of ____________, 20____, at __________a.m./p.m.

Witness my hand and the seal of this county, this ____ day of ____________, 20____.

______________________________

County Auditor

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18.

05:02:23:04. Signing of oaths. A member of the post-election auditing board shall sign the oath or affirmation of office prescribed in § 5:02:23:01 before performing any duties of a member of the board.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18.

05:02:23:05. Staff for post-election auditing board. The county auditor shall provide administrative support and staff for the post-election auditing board.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18, 12-17B-22.

05:02:23:06. Post-election auditing board receipt for official ballots. The post-election auditing board's receipt for the official precinct ballots must be in the following form:

STATE OF SOUTH DAKOTA

____________ COUNTY

____________ PRECINCT

We, the Post-Election Auditing Board Members, do hereby certify that on the ____ day of _______________, 20____, at the post-election audit for the (Primary or General) election held on _______________, 20____, we received from ____________________, County Auditor, a sealed package containing the following official precinct ballots:

(Here list the official precinct ballots received)

______________________________ ______________________________

for the purpose of conducting a post-election audit.

Dated this ____ day of ____________, 20____.

_____________________________________ Post-Election Auditing Board member

(add additional lines when necessary)

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18.

05:02:23:07. Public vote count. At the post-election audit, the post-election auditing board shall publicly manually count the votes and only adjourn after the count is completed and the certificate of post-election audit signed. The post-election auditing board may only exclude or prohibit a member of the public from witnessing any portion of the post-election audit if that person's conduct is disruptive.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18; 12-17B-20, 12-17B-21.

05:02:23:08. Opening receptacle or container. The sealed receptacle or container must be unsealed and the ballots taken out, and sorted by precinct.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18, 12-17B-20, 12-17B-25.

05:02:23:09. Auditing procedures. The following procedure must be used in auditing a precinct by manually counting the ballots:

(1) The post-election auditing board shall review ballots for proper marking procedure according to the voting instructions below. The post-election auditing board shall determine the votes to count as follows:

(a) A mark that is inside the oval on an optical scan ballot is counted as a vote;

(b) Any mark on an optical scan ballot that does not touch the oval and is not in the oval may not be counted as a vote;

(d) A write-in vote may not be counted; and

(e) Express votes are to be counted as shown on the Express vote ballot;

(2) A majority vote of the post-election auditing board shall determine any question arising from the post-election audit; and

(3) The post-election auditing board shall certify the results as manually counted for the post-election audit by completing the certificate of post-election audit as provided in § 5:02:23:12. The board shall file the certificate of post-election audit with the county auditor.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18, 12-17B-20, 12-17B-22.

05:02:23:10. Tally of ballots. As the vote is announced by a post-election auditing board member, another board member must make the appropriate mark on the post-election audit tally sheet prescribed in § 5:02:23:11. Yet another board member shall make the appropriate mark on a duplicate post-election audit tally sheet.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-20.

05:02:23:11. Post-election audit tally sheets. As shown below, a post-election audit tally sheet must contain a series of horizontal and vertical grid lines to form boxes of suitable size to contain five tally marks each, four of which may be upright and the fifth crossing the others at an oblique angle. Each fifth vertical grid line in the ruling must be red, so that five boxes for tally marks are contained between two red lines. Sufficient space must be provided in the left margin of each post-election audit tally sheet to legibly print or write in ink the name of the contest audited, with the name of the individual candidates or ballot question answers listed in the same order as on the official ballots used in the election. Sufficient space must be allowed in the right margin of the post-election audit tally sheet to legibly print or write in ink the total votes for each candidate or ballot question answer counted.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-20.

05:02:23:12. Certificate of post-election audit.The certificate of post-election audit must be in the following form:

STATE OF SOUTH DAKOTA )

) SS CERTIFICATE OF POST-ELECTION AUDIT

COUNTY OF _____________ )

WE, THE UNDERSIGNED members of the post-election auditing board, do hereby certify the results of the audit for the following specified candidates or questions _______________________________________ for the election held on the ____ day of __________, _____. We completed the audit on the ____ day of __________, _____.

Precinct__________
	Total Votes	Total Yes	Total No
Candidate Name
Candidate Name
Ballot Question Name

The following is a brief description of the proceedings of this post-election audit:

Signed by a majority of the post-election auditing board:

_____________________________

Post-Election Auditing Board Member

_____________________________

Post-Election Auditing Board Member

_____________________________

Post-Election Auditing Board Member

(add more board member lines as necessary)

Attested under SEAL by the ______________ County Auditor:

____________________________

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-18, 12-17B-20, 12-17B-22.

05:02:23:13. Reserved.

05:02:23:14. Reserved.

05:02:23:15. Reimbursement of post-election audit costs. The county auditor shall submit expenses from the post-election audit to the secretary of state for reimbursement. The auditor shall use the forms designated by the secretary of state for this purpose.

Reimbursable expenses for the audit, are:

(1) Board member pay for conducting the audit and for training prior to the audit, not to exceed twenty-five dollars per hour worked but no less than minimum wage;

(2) Supplies, including postage, no more than two hundred dollars;

(3) Rental costs for the location to conduct the audit, no more than two hundred fifty dollars per day;

(4) Publication costs, no more than one hundred seventy-five dollars;

(5) Ballot storage costs, no more than seventy-five dollars;

(6) Travel (mileage) costs at the state per diem rate for every mile traveled;

(7) Meal reimbursement at state per diem meal rates; and

(8) Auditor and auditor's staff actual wages for hours spent training and assisting the post- election audit board.

Expenses related to or associated with the primary or general election are not reimbursable post-election expenses. To avoid confusion, expenses that are not covered are costs related to media programming, ballot printing, ballot shipping, equipment maintenance, statewide ballot question publications, purchasing of election equipment (express votes, tabulators), polling place signage, testing costs, election day workers, postage, and insurance on voting equipment.

Source: 50 SDR 66, effective December 5, 2023.

General Authority: SDCL 12-1-9(4)(11).

Law Implemented: SDCL 12-17B-9.

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