On Thursday, Angela Kennecke sought some legal perspective from Attorney General Marty Jackley on the allegedly illegal tactics of out-of-state petition circulators. A.G. Jackley was somewhat repetitive, perhaps necessarily, as a law enforcement official avoiding the appearance of partiality in a contentious matter by reciting over and over the basic legal requirements for petition circulators: Asked about the shady circulator+witness practice, in which the out-of-state contractor handles the petition but hires a local to watch the circulating and then sign the circulator’s oath, A.G. Jackley repeated that circulators “have to be 18 years of age, a resident, and cannot accept money per signature.”
As we know from our numerous tax-dodging, town-incorporating RV voters, establishing “residency” in South Dakota doesn’t take much: produce a photo ID, sleep at a motel, show a piece of mail addressed to you in South Dakota, and you’re pretty much a legal resident.
Or are you? Our election laws offer their own definition of residency. As we did in our discussion of the strange municipal incorporation of Buffalo Chip by people who don’t live at Buffalo Chip, let’s review SDCL 12-1-4, which defines “voting residence“:
SDCL 12-1-4. Criteria for determining voting residence. For the purposes of this title, the term, residence, means the place in which a person has fixed his or her habitation and to which the person, whenever absent, intends to return.
A person who has left home and gone into another state or territory or county of this state for a temporary purpose only has not changed his or her residence.
A person is considered to have gained a residence in any county or municipality of this state in which the person actually lives, if the person has no present intention of leaving.
If a person moves to another state, or to any of the other territories, with the intention of making it his or her permanent home, the person thereby loses residence in this state.
As I reported yesterday, many professional circulators do not like officially changing their state residency and prefer to rely on local “witnesses” to sign their paperwork. They’d rather not pay $28 for a new driver’s license or a state ID card or have their names make the local radar.
But even if an out-of-state contractor goes to the trouble of establishing technical residency, SDCL 12-1-4 suggests these visitors still don’t satisfy the SDCL 12-1-3 definition of “resident” because they have not fixed a habitation in South Dakota to which they intend to return, they have a present intention of leaving (see the out-of-state circulator who told Angela Kennecke that he’s here just until the petition drive is done), and, as we will discover in a couple months when we challenge their petitions (18-percenters, brace yourselves), they will have moved to another state. That’s why these out-of-state contractors don’t want to sign the circulator’s oath: checking a circulator’s address after the petition deadline and finding no such person circulator present at that address or anywhere else in South Dakota would be an easy way to disqualify a petition sheet.
Therefore, petition drivers, beware. In post-Bosworth/Walker South Dakota, where we are keenly aware that oaths matter and that people get felony convictions for fudging petitions, petition challenges have more teeth. Media attention is alerting the Attorney General, the Secretary of State, and the general public to the threats to the integrity of our initiative and referendum process. Opponents of ballot measures who think they see illegal activity on petitions will find more willing ears for their complaints in the Capitol, the courts, and the press.
And out-of-state contractors who have established fake residency in the past and gotten by with signing circulator’s oaths may find that South Dakota’s heightened petition scrutiny may invalidate their petitions, erase their bonus pay, and earn them a call from the Attorney General.
Attorney General Jackley told me in an email that residency is defined as a state of mind. Still trying to figure that out. I have been wandering the SDSU campus talking to the 18% people. They have become reticent when asked about their residency. And they don’t respond when asked if they are being paid per signature. Tricky bunch.
Keep asking, Mary. Let them know we are watching them and will be scrutinizing the legality of their participation in our democratic system.
I hope those out-of-staters are reading DFP and getting nervous.
Sounds like Jackley believes enforcing the laws of the state is a state of mind and he seems to live in a state of denial.
Mike, I can understand what Jackley is saying from an evidentiary, prosecutorial point of view. To hang someone under Title 12’s residency definition, we have to assess intent, which is very much a state of mind. People’s intentions do change. How do we prove that a person in South Dakota right now does not intend to stay past November 9? Heck, I intended to live at Lake Herman all my life and said so many times. Then jobs happened. There could be an entirely honest South Dakota resident circulator right now who has no plans to leave the state, but on November 10, that person gets and amazing job offer in Minnesota. To avoid busting innocent circulators who followed the law but had their plans change, we need to identify concrete evidence of transience. Direct quotes may work, like the one Angela Kennecke got from the guy she interviewed—collar that guy, and we have a slam-dunk case. But aside from incautious public statements, what evidence would you consider slam-dunk proof of an intent to remain in South Dakota only temporarily?
Maybe we should go Trump and build a wall around South Dakota during petition season. :-D
Actually Cory, proving someone’s “intent” is probably the easiest element to prove in a civil or criminal case. It takes absolutely no direct evidence. Instead, the prosecution simply establishes whatever facts underlie the decision to prosecute, such as the defendant’s address or abode or lack thereof, and it is from this evidence that the jury or finder of fact is permitted to infer the defendant’s intent.
A jury’s decision to infer a culpable intent in practice relies more on bombastic prosecution arguments than any real evidence of the defendant’s actual state of mind. It is a very weak link in the beyond a reasonable doubt requirement.
Interesting, BCB. So if the prosecutor simply presses the timeline—circulator came to South Dakota during the petition drive, acquired no permanent residence, left South Dakota once the petition drive was over—a jury could buy it?
That is essentially correct Cory. Indeed, even if there is uncontradicted direct evidence of the defendant’s intent, such as the defendant’s testimony, a jury (or other finder of fact) may reject that direct evidence as not credible and rely instead on whatever “circumstantial evidence” the prosecutor relies on for an argument that supports an inference of the requisite criminal intent. It is extremely rare for any appellate court to reverse a conviction due to insufficient evidence of intent.
Well, heck, BCB and Marty! What are we waiting for? Let’s get the paddy wagon and load these guys up!
Marty might have other reasons he does not want to prosecute, but proof of intent is not an excuse. But I have no power to prosecute anyone but my right brain functions (sorry Bill!).
Let’s just off ’em and be done with it. No need to get Jackley involved,even if he was entertaining thoughts of actually doing something. Pretty clear to me that SD laws have been violated.
“Off ’em” is a bit drastic. Perhaps a citizen’s arrest?
Drastic times call for sensible measures. How would you describe the AG? He doesn’t appear to be pro-active. He doesn’t appear to be re-active. He doesn’t appear to be active in law enforcement at all. He isn’t going to get by on his looks. Must be who he knows,right?
No Mike, we can’t just “off ’em.” But let’s try taking them to the nearest shelter belt, shoot them, and leave the guns several feet away. It’s an obvious suicide, right Jackley?
[Never, never, never! It’s just silly sarcasm, sort of like Benda’s suicide finding.]