An Act to modify provisions pertaining to the testing and use of automatic tabulating equipment.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 12-17B-2 be AMENDED:

12-17B-2. Any automatic tabulating or electronic ballot marking system used in an election shall must enable the a voter to cast a vote for all offices and on all measures on which the voter is entitled to vote. No automatic tabulating, electronic ballot marking, or election voting equipment system may be connected to the internet. No ballot marking device may save or tabulate votes marked on any system.

Each system shall must fulfill the requirements for election assistance commission standards certification for certification by the United States Election Assistance Commission, and must be approved by the State Board of Elections prior to distribution and use before the system may be distributed and used in this state. No system may be approved unless the system fulfills the requirements as established by the State Board of Elections. Any changes or modifications to an approved system shall must be approved by the State Board of Elections prior to distribution and use before the system is distributed and used in this state.

The State Board of Elections may not approve the use of:

(1) An automatic tabulating system or electronic ballot marking system that may be connected to the internet; or

(2) A ballot marking system that can save or tabulate votes marked using the system.

Section 2. That a NEW SECTION be added to chapter 12-17B:

Before the State Board of Elections may approve any automatic tabulating or electronic ballot marking system, the vendor responsible for the production of the system must provide a copy of the system's software source code to the secretary of state. The board, in consultation with the vendor and the state chair of each political party, shall select an independent person to examine the system's software source code. Upon completion of the examination, the person shall file with the board a statement indicating whether:

(1) The system functions as represented by the vendor; and

(2) The system's software source code is free from defects or other errors.

Any system's software source code is not open to public inspection. The independent person conducting the examination of the system's software source code may not disclose the system's software source code to any other person.

Section 3. That a NEW SECTION be added to chapter 12-17B:

Upon the approval of a new automatic tabulating system or electronic ballot marking system, any system previously approved is no longer approved as of December thirty-first following the approval of the new automatic tabulating or electronic ballot marking system.

Upon the approval of an update to a system's software or operating system, any software or operating system previously approved is no longer approved as of December thirty-first following the approval of the update to software or operating system.

Any system approved prior to January 1, 2026, is no longer approved as of July 1, 2026, and must be approved by the State Board of Elections before the system is distributed and used in this state.

Section 4. That a NEW SECTION be added to chapter 12-17B:

The vendor of an automatic tabulating system approved by the State Board of Elections, pursuant to this chapter, and used by a jurisdiction in the conduct of an election shall maintain the election system's software or operating system.

The vendor of an election system shall ensure that each election system is updated to operate using the most current version of the system's operating system, software patches, and antivirus software. Any election system that has not been updated to operate using the most current version of the system's operating system, antivirus software, or software patches is not approved and may not be used in an election.

If a system may not be used at an election, pursuant to this section, the jurisdiction must tabulate the election results using a hand count of the ballots, and all costs incurred by the jurisdiction as a result of conducting a manual count of the ballots must be paid by the vendor of the system.

Section 5. That § 12-17B-5 be AMENDED:

12-17B-5. Not more than ten days prior to an election, the The person in charge of the election shall conduct a test of the automatic tabulating equipment on the first Saturday preceding the sixtieth day before the election, at nine a.m. local time, to ascertain that whether the equipment will correctly count the votes cast for all offices and on all measures. The test must be open to the public.

The person in charge of the election shall notify the county chair of each political party with a candidate on the ballot, any independent candidate or candidate without party affiliation on the ballot, and the ballot question committees for or against an initiated or referred measure or initiated constitutional amendment, of the testing of the automatic tabulating equipment, one week two weeks before the test is conducted. The person in charge of the election shall post notice of the time and place of the test in the same manner as a public meeting agenda, pursuant to § 1-25-1.1. The person in charge of the election shall post the notice of the time and place of the test to the secretary of state's website.

If an errorless count by an automatic tabulating machine is achieved by the test, the person in charge of the election shall must certify the machine. The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, prescribing the certification of properly functioning automatic tabulating equipment under this section.

If an error is detected, the cause of the error shall must be determined and corrected. Once the error is corrected, the person in charge of the election shall conduct a new test of the automatic tabulating equipment. The person in charge of the election may not approve the automatic tabulating equipment until an errorless count is made. If the automatic tabulating equipment does not produce an errorless count by the fiftieth day before the election, the person in charge of the election may not use any automatic tabulating equipment to tabulate the results of the election.

Any All additional testing required to achieve an errorless count must be open to the public. The person in charge of the election shall post notice of the time and place of an additional test in the same manner as a public meeting agenda, pursuant to § 1-25-1.1. The person in charge of the election shall notify the county chair of each political party with a candidate on the ballot, any independent candidate or candidate without party affiliation on the ballot, and the ballot question committees for or against an initiated or referred measure or initiated constitutional amendment of the testing of the automatic tabulating equipment twenty-four hours one week prior to the test. The person in charge of the election shall post the notice of the time and place of the additional test to the secretary of state's website.

A copy of each report produced by the automatic tabulating equipment during the testing of the equipment must be available for public inspection at no charge, during regular office hours, within twenty-four hours after the completion of a test conducted pursuant to this section.

The secretary of state shall provide each county auditor with the contact information for any independent candidate, candidate without party affiliation appearing on the ballot, and the ballot question committees for or against an initiated or referred measure or initiated constitutional amendment in the auditor's county.

Section 6. That § 12-17B-5.1 be AMENDED:

12-17B-5.1. The person in charge of the election shall test the automatic tabulating equipment by processing a predetermined number of ballots on which are recorded a predetermined number of valid votes for each candidate and measure. The test of the automatic tabulating equipment must also include at least one ballot for each office that has votes exceeding the number allowed by law in order to test the ability of the automatic tabulating equipment to reject invalid votes. During the test, a different number of valid votes must be assigned to each candidate for an office and for and against each measure. A ballot used to test the automatic tabulating equipment must be clearly marked as a test ballot. After each test, the testing materials and the predetermined number of ballots used during the test must be sealed and retained in the same manner as election materials after an election.

If the person in charge of the election fails to test the automatic tabulating equipment in the way required by this section, the automatic tabulating equipment may not be used to tabulate the votes cast at the election.

Section 7. That § 12-17B-12 be AMENDED:

12-17B-12. The test required by § 12-17B-5 shall be repeated immediately before the start of the official count of the ballots.

A copy of each report produced by the automatic tabulating equipment during the testing of the equipment must be available for public inspection at no charge, during regular office hours, within twenty-four hours after the completion of a test conducted pursuant to this section.

Section 8. That § 12-17B-18 be AMENDED:

12-17B-18. Within fifteen days following the completion of the state canvassing of a primary or general election, If the results of a primary or general election are tabulated using automatic tabulating equipment, the auditor of each county shall conduct a post-election audit of the ballots cast in the election following the procedures listed in this section and §§ 12-17B-19 to 12-17B-25, inclusive, beginning at nine a.m. local time on the first Friday following the primary or general election. The county auditor shall appoint a county auditing board of sufficient size to promptly complete the audit.

The members of the county auditing board may not all be members of the same political party. A member of the county auditing board must be a registered voter in the county in which the audit takes place. An individual may not serve on the county auditing board if the individual is a candidate for the office that is on the ballot being audited.

The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, prescribing the oath that each member of a county auditing board must take prior to discharging any duties.

Section 9. That § 12-17B-19 be AMENDED:

12-17B-19. The office of the secretary of state shall reimburse each county for the cost of any post-election audit required by §§ 12-17B-18 to 12-17B-25 12-17B-22, inclusive. The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, administering the reimbursement process and defining reimbursable expenses and reimbursement rates for post-election audits.

The secretary of state may not reimburse a county for the cost of a post-election audit if the person in charge of the election did not test the automatic tabulating equipment as required by § 12-17B-5 or 12-17B-5.1.

Section 10. That § 12-17B-20 be AMENDED:

12-17B-20. The post-election audit must be conducted in five percent of the precincts each precinct in the county by manually counting all votes cast in two all contests and comparing the results of the manual count to the results for those precincts at the county canvass. The county auditor shall select the precincts for the audit at random without the use of a computer in public during the meeting of the county canvassing board. If the combined total of all ballots cast in the precincts selected does not exceed one hundred ballots, then additional precincts must be randomly selected until the total of all ballots exceeds one hundred ballots. For the purposes of this section, the term precinct includes vote centers, but does not include any precinct designated as an absentee precinct.

The county auditor shall select the contests for the audit at random without the use of a computer in public during the meeting of the county canvassing board. One contest randomly selected for the audit must be a statewide contest. If there are no statewide contests on the ballot, the auditor randomly shall select another contest on the ballot. If there is only one contest on the ballot, that contest must be audited.

Upon completion of the post-election audit, the person in charge of the election shall reseal and retain the ballots as provided in § 12-20-20.

Section 11. That § 12-17B-22 be AMENDED:

12-17B-22. The county auditor shall send the results of the post-election audit to the secretary of state and present the results of the audit to the county commission at its next meeting. The results of the audit shall be included in the minutes of the county commission meeting canvassing board.

The secretary of state shall publish the results of the post-election audit on the secretary of state's website.

Section 12. That § 12-20-38 be AMENDED:

12-20-38. The Board of Canvassers canvassing board for both primary and general elections shall at the time provided by § 12-20-36 proceed to open the returns the results of the post-election audit conducted pursuant to §§ 12-17B-18 to 12-17B-22, inclusive, from the various voting precincts in the county, and make abstracts of the votes cast for each of the candidates and each of the issues. Each of the abstracts The canvassers shall sign and certify each abstract of the votes made shall be signed and certified by the canvassers, under the seal of the county auditor, and be deposited shall deposit the abstracts in the office of the auditor.

Section 13. That a NEW SECTION be added to chapter 12-21:

If a recount is conducted pursuant to this chapter, the recount must be conducted by manually counting all the votes cast in the election subject to the recount.

The person in charge of the election shall sign and seal the new returns and make the new returns public.

Section 14. That § 12-17B-16 be REPEALED.

Automatic tabulating equipment must be tested prior to a recount or election contest as provided in §§ 12-17B-5 to 12-17B-5.2, inclusive, and then the official ballots must be recounted. The recount board shall certify the new returns printed by the automatic tabulating equipment as the official returns for the election. The person in charge of the election shall sign and seal the new returns printed by the automatic tabulating equipment and make the new returns public.

Section 15. That § 12-17B-23 be REPEALED.

If the results of the post-election audit show a discrepancy in the results greater than the margin by which any contest for elected office on the ballot in the county was decided, the auditor shall notify the candidates for that office. Any candidate who receives a notification from the county auditor shall have an additional seven days from the date from when the auditor sends the notification to file a verified petition requesting a recount of the official returns pursuant to §§ 12-21-10 or 12-21-11. The petition may be filed regardless of the margin by which the contest was decided.

Section 16. That § 12-17B-24 be REPEALED.

If a recount of any contest is conducted in a county, the county auditor is not required to conduct a post-election audit pursuant to § 12-17B-18.

Section 17. That § 12-17B-25 be REPEALED.

The county auditor shall reseal and retain the ballots upon the completion of a post-election audit pursuant to § 12-20-31.

Section 18. Any automatic tabulating or electronic ballot marking system that had been previously approved by the State Board of Elections on or before June 30, 2026, must receive approval from the State Board of Elections on or after July 1, 2026, before the system may be used in an election conducted in this state.