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.