South Dakota Administrative Rules Title 5 - Secretary of State
1. Overview of South Dakota Administrative Rules (ARSD)
What ARSD Is
The South Dakota Administrative Rules (ARSD) are regulations adopted by state agencies under authority granted by the South Dakota Legislature. They have the force of law, but are subordinate to statutes (South Dakota Codified Laws, or SDCL).
Where Title 5 Fits
ARSD Title 5 governs the Office of the Secretary of State, primarily addressing:
Administrative rulemaking procedures
Filing, publication, and certification of rules
Election administration
Business services (corporations, UCC filings, trademarks)
Records management and public notices
The Secretary of State is unique because the office acts both as:
A rulemaking authority for its own functions, and
A gatekeeper for all other agencies’ administrative rules
2. Statutory Authority Behind Title 5
Title 5 is primarily authorized by SDCL Chapter 1-26, which governs administrative procedures.
Key statutory foundations include:
Legislative delegation of rulemaking authority
Requirements for public notice and hearings
Review by the Legislative Rules Review Committee
Judicial review of agency action
South Dakota courts consistently hold that an administrative rule is valid only if it stays within the scope of authority granted by statute.
3. Core Functions of Title 5 – Secretary of State
A. Rule Filing and Publication
Title 5 establishes procedures for:
Filing proposed and adopted rules
Assigning ARSD numbers
Publishing rules in the Administrative Register
Maintaining the official rule archive
The Secretary of State does not evaluate policy merit, only procedural compliance.
B. Election Administration
Rules address:
Ballot access
Petition formatting
Initiative and referendum procedures
Election canvassing and certification
Courts treat these rules with strict compliance standards because elections involve constitutional rights.
C. Business Services
Title 5 rules regulate:
Corporate filings
Limited liability companies
Trade names
Uniform Commercial Code (UCC) filings
The Secretary of State acts in a ministerial role, meaning discretion is limited.
4. Judicial Review of Administrative Rules (Key Case Law Principles)
South Dakota courts apply consistent doctrines when reviewing rules adopted under Title 5.
A. Rulemaking Authority Must Be Explicit
Principle:
An agency may only adopt rules explicitly authorized by statute.
Case Example:
The South Dakota Supreme Court has held that administrative rules cannot enlarge, modify, or contradict legislative intent.
If a rule goes beyond statutory authority, it is invalid even if well-intentioned.
B. Procedural Compliance Is Mandatory
Principle:
Failure to follow statutory rulemaking procedures renders a rule invalid.
Courts require strict adherence to:
Public notice requirements
Public hearings
Legislative review timelines
Proper filing with the Secretary of State
Case Example:
In multiple decisions reviewing administrative action, the Court emphasized that procedural safeguards protect democratic accountability.
C. Deference Has Limits
Principle:
South Dakota courts give limited deference to agency interpretations of statutes.
Unlike federal Chevron deference, South Dakota courts:
Independently interpret statutes
Reject agency interpretations that conflict with plain statutory language
This directly affects Title 5 because the Secretary of State cannot “interpret” statutes beyond clerical or ministerial application.
D. Election Rules Receive Heightened Scrutiny
Principle:
Rules affecting voting rights are strictly construed.
Case Example:
The Court has invalidated administrative actions that:
Impose additional burdens not found in statute
Alter initiative or referendum requirements
Affect ballot access without clear legislative authorization
Title 5 election rules must be narrow, neutral, and clearly authorized.
E. Ministerial vs. Discretionary Acts
Principle:
When the Secretary of State acts ministerially, courts may issue mandamus to compel compliance.
Examples:
Accepting properly completed filings
Certifying petitions that meet statutory requirements
Publishing rules filed correctly
Courts will not allow the Secretary of State to deny filings based on policy disagreement.
5. Relationship Between Title 5 and the Legislature
Title 5 rules are subject to:
Review by the Legislature’s Rules Review Committee
Suspension or repeal by legislative action
Judicial invalidation if inconsistent with statute
South Dakota courts emphasize that rulemaking is not lawmaking.
6. Practical Legal Impact of Title 5
Title 5:
Controls how laws are operationalized
Determines access to elections and business registration
Acts as the procedural backbone of state governance
Because of this, courts interpret Title 5 rules narrowly and conservatively, prioritizing statutory fidelity and public transparency.
7. Key Legal Takeaways
Title 5 rules have legal force but cannot exceed statutes
Procedural errors invalidate rules
The Secretary of State’s authority is largely ministerial
Election-related rules receive strict judicial scrutiny
South Dakota courts independently interpret statutes
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