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Olson Swings and Misses in Challenging Foster and Pourier Residency; Gutzler Precedent Overrules

Right-wing radical Shad Olson is trying to disqualify two Lakota women from taking their duly elected seats in the South Dakota Legislature next month.

In an e-mail to unknown recipients, the Rapid City political hack and speechifier claims that Senator Red Dawn Foster and Representative-Elect Peri Pourier, both elected from Pine Ridge to serve largely Native American District 27, do not satisfy the two-year residency requirement of Article 3, Section 3, of the South Dakota Constitution. The pertinent parts of that section set the only qualifications for legislators:

No person is eligible for the office of senator who is not a qualified elector in the district from which such person is chosen, a citizen of the United States, and who has not attained the age of twenty-one years, and who has not been a resident of the state for two years next preceding election.

No person is eligible for the office of representative who is not a qualified elector in the district from which such person is chosen, and a citizen of the United States, and who has not been a resident of the state for two years next preceding election, and who has not attained the age of twenty-one years [SD Const. Art. 3 Sec. 3, first two clauses].

To support his allegation against Senator-Elect Foster, Olson shares several screenshots of online records showing that Foster owns two residential properties in Colorado, a 2,048-square-foot house at 9295 Adams St in Thornton (since 2007) and a 988-square-foot house at 3838 N Franklin St in Denver (since 2005). Olson includes screen caps from White Pages (likely one of Olson’s favorite pages) and True People Search showing those addresses connected to Foster.

These items do not prove Olson’s claim. Individuals may own property in other states and still be residents in this state. Besides, when I type “9295 Adams St, Thornton, CO” into True People Search, I get 31 records of people living at that house:

Screen cap, True People Search, 2018.12.19
Screen cap, True People Search, 2018.12.19

The 3838 N Franklin St Denver address pops up 47 records, at least four of whom don’t have the name Foster and are listed as current residents at that rather small house.

White Pages produces similar multiple hits: seven current residents at the Thornton location, eight at the Denver address.

(By the way, True People Search lists a “Cory A Heidelberger” as currently residing in Lennox and an “Allan Novstrup”, age 34. Oops.)

Olson claims to take a deep dive on Foster, but he doesn’t dive as far as my casual morning Googling to find this Fall 2013 newsletter from the Red Cloud Indian School noting that Red Dawn Foster came to Red Cloud in fall 2013 to teach high school classes in leadership, economics, and entrepreneurship.

Olson’s evidence of Pourier’s elsewhere residency is even thinner. He provides one affidavit from one Gary T. Brehmer of Rushville, Nebraska, sworn on November 30 of this year, stating that Pourier rented a place from him in Rushville through the end of 2017:

Gary T. Brehmer, affidavit, sworn 2018.11.30.
Gary T. Brehmer, affidavit, sworn 2018.11.30.

This sole document also fails to establish that Pourier was not a resident of South Dakota during the two years preceding her election. Remember that “residency” in South Dakota for voting purposes is so loosely defined that an RV owner can register her vehicle in South Dakota, spend one night in the state, and register to vote here. Nothing Olson presents in his small dossier establishes grounds for overturning the will of District 27’s voters as expressed in a fair election on November 6.

Brehmer’s affidavit is prepared for circuit court, but if Brehmer, Olson, and whoever else is trying to disenfranchise the Native vote have read their case law, they know that there’s no point in going to court. Back in 1977, the Legislature faced a far more slam-dunkal case of an honest-to-goodness Minnesota carpetbagger, Rodney Eugene Gutzler, trying to take a seat in the South Dakota House. Gutzler was a Salem High School graduate, but he moved to Minnesota, worked for honeywell, and voted in Minnesota in the 1972 and 1974 general elections. He didn’t removed his voter registration from the Minnesota rolls until May 27, 1975. One of his own campaign ads said he had lived in Minnesota from 1968 to January 1975 before moving back to Salem to sell insurance.

Mitchell Daily Republic, 1976.10.28, p. 5.
Mitchell Daily Republic, 1976.10.28, p. 5.

Gutzler’s District 9 neighbors elected him to a House seat in November 1976. His opponent Merwyn Walter took him to court, arguing exactly what Olson does now about Foster and Pourier, that Gutzler didn’t satisfy the Article 3 Section 3 two-year residency requirement.

But South Dakota Supreme Court read on to Article 3 Section 9 and said the facts about Gutzler did not matter; it’s not the Court’s job to decide who’s qualified to sit in the Legislature:

In the election of our state representatives and senators, the constitution provides:

“Each house shall be the judge of the election returns and qualifications of its own members.” South Dakota Constitution, Art. III, § 9.

This provision has been construed in State v. Circuit Court of Spink County, 1934, 63 S.D. 313, 258 N.W. 278, to mean that the power of each house to pass upon the qualifications of its own members is exclusive or plenary.

Although we today reaffirm the constitutional power of the house of representatives to judge the qualifications of its members, we would add that the power is restricted to its “members.” Whether the eligibility of Gutzler as a candidate could have been properly challenged by judicial proceedings prior to the general election, we need not decide. See e.g., Putnam v. Pyle, 1930, 57 S.D. 250, 232 N.W. 20; State v. Ostroot, 1954, 75 S.D. 319, 64 N.W.2d 62; State v. Hansen, 1940, 67 S.D. 499, 294 N.W. 445; State v. Metcalf, 1904, 18 S.D. 393, 100 N.W. 923; State v. Rexford, 1906, 21 S.D. 86, 109 N.W. 216; Smith v. Ward, 1924, 47 S.D. 243, 197 N.W. 684; Kneip v. Herseth, 1974, 87 S.D. 642, 214 N.W.2d 93. See also 72 Am.Jur.2d, States, etc., § 44; 81 C.J.S. States § 34. However, once the general election has been held, the power to pass upon the qualifications of a candidate for representative is vested exclusively in the house of representatives.[2]State v. Circuit Court of Spink County, supra.

The quo warranto proceeding is dismissed and the order assuming jurisdiction and maintaining the status quo which enjoined and restrained Governor Richard Kneip and Secretary of State Lorna Herseth from certifying the election of Rodney Eugene Gutzler is hereby quashed.

All the Justices concur [South Dakota Supreme Court, State Ex Rel. Walter v. Gutzler, 1977.01.14].

The House seated Gutzler, who served on full term in Pierre.

Of course, Gutzler was a Republican, and the House majority was Republican, so Rod’s your uncle.

But even if Olson brings better evidence establishing that either of his targets were not South Dakota residents, the South Dakota Supreme Court and the Legislature have established that the judgment of each chamber of the Legislature and the will of the people expressed at the polls supersede even the language of the South Dakota Constitution.

Senator-Elect Red Dawn Foster and Representative-Elect Peri Pourier won fair elections in District 27. No solid evidence has been presented demonstrating they do have not satisfied the very loose definition of “resident” since November 6, 2016. The Senate and House have an obligation to seat the qualified representatives the voters of District 27 have chosen.


  1. jerry 2018-12-19 08:23

    Comedic gold Cory, “White Pages (likely one of Olson’s favorite pages)”

  2. Donald Pay 2018-12-19 08:39

    Nothing says “white privilege” more than a white guy telling an Indian where to live. Shad Armstrong Olson (R-Racist) aims his gatling gun on two Indian women, and misses. If owning out of state property or living out-of-state at some time in one’s life disqualifies one from office, Janklow wouldn’t have been Governor, and neither would Noem. Think a little more deeply, racist Republicans, because you have more people owning out-of-state property than you know.

  3. DR 2018-12-19 10:34

    Sometimes I wonder about Mr Olson. I thought it was pretty far fetched b/c he “broke” the story and I couldn’t find it by simple google search which tells me that no other credible news organizations picked up what he was slinging.

    They won…let em serve to the best of their abilities.

  4. jerry 2018-12-19 10:37

    Ol’ stink fish is sounding like a candidate for office. He would certainly swing the Tapioca and Gordo Howie and George Custer supporters, while providing work for veterinarians all across the state to help inoculate their rabid followers.

  5. Donald Pay 2018-12-19 11:49

    BOMBSHELL BREAKING RIGHT NOW: I found Shadow Olson living in Menomonie, Wisconsin. Too close for comfort. Also, Shad Olson lives in Esko. MN, Drayton, ND, Taylorville, UT, and Saint George, UT. Did Shad Olson vote in South Dakota? Call the Attorney General and demand an investigation.

  6. LS1 2018-12-19 12:08

    This is an excellent write up of Olson’s ridiculous claims. Thank you.

  7. Cory Allen Heidelberger Post author | 2018-12-19 12:16

    The claims would have sounded more ridiculous, LS1, if I had published them in Shad’s typical hyperbolic language, who cries for “a teetering electorate cynically convinced of rampant injustice in our public institutions.”

  8. grudgenutz 2018-12-19 12:37

    Having searched my memory banks, I find no instances of Shag ever being right about anything.

  9. Roger Cornelius 2018-12-19 14:57

    Just checked out Shad’s Facebook page and by his postings he is on the same level as those Trumpians that fear the Deep State (whatever the hell that is).
    Shad also claims that he has tons more evidence that can prove these two Native American legislators are not residents of Shad’s Deep State.
    I didn’t even bother to comment on the story, you know what it is like to discuss anything with a Trumpian.

  10. grudznick 2018-12-19 15:41

    I, as I am sure is the case for my close personal friend Bob, also, can recall few instances where Mr. Olson has been correct about matters of this sort.

  11. Debbo 2018-12-19 15:43

    I was going to comment in defense of the two new legislators, but this Olson racist crap is just too ridiculous to require anything thoughtful.

  12. jerry 2018-12-19 16:51

    These guys cannot tell the truth. Here is another one, this guy is from the Freedumb caucus.

    “As trump mulled chief of staff pick, U.S. Rep. Mark Meadows’s USF degree was fixed on Wikipedia
    Multiple outlets and the House of Representative historian have credited Meadows for earning a bachelor of arts from the University of South Florida. He didn’t.”

    It wouldn’t surprise me a bit to see that the shad has embellished his creds as well. These guys cannot tell the truth…ever..just like their racist lyin’ daddy, trump.

  13. Rod Hall 2018-12-19 20:16

    When I, Rodney Hall, was elected to District 9 Senate seat I had moved from New Hope, MN to District 9 just over two years. Six years later Rodney Gutzler had moved from New Hope, MN fewer than two years, before he was elected to District 9 House seat.
    The Attorney General was Bill Janklow. The Republicans had just over a 2/3 majority in the House. With Kneip as Gov. had there been a vacancy or two, dduring the next two years, involving Republicans, Kneip would have likely named Democrats, and the Republicans would have lost their 2/3 majority. I believe Janklow represented Gutzler and the Supreme Court established a precedent that ignores the South Dakota Constitution. Now 42 years later what will the Republicans do?

  14. Stanford Adelstein 2018-12-19 20:49

    Somehow, the worst of radical political hatred is trying to infect South Dakota.

    This whole thing is so ridiculous, Representative-elect Qualm has no authority to demand anything regarding an elected person from another legislator. None at all.

    Of course, their “investigation” is not only dishonest, but meaningless BS. The the suggestion that after filing petitions – which were accepted by the Secretary of State, and after being elected in competitive races, certified to Secretary of State, and so recorded – that a false allegation about the SD Constitution — an outright lie — to challenge …………

  15. Donald Pay 2018-12-19 21:07

    Noem didn’t live in South Dakota for eight years. Does that same requirement apply to the Governor?

  16. Cory Allen Heidelberger Post author | 2018-12-19 21:49

    Roger, claiming to have tons more evidence but not showing it reeks of Trumpism. Shad’s ilk manufacture facts, evidence, silent majorities, reality itself, to supplant the world they don’t like.

  17. John W 2018-12-19 22:22

    If you did your research Cory; you’d discover that Olson also owns property in Colorado and continues to be a first rate hypocritical jack ass.

  18. Stanford Adelstein 2018-12-19 22:40

    Sorry, John W, Olson is not a “first class” anything!!! He might make “fourth rate,” like “Fourth Rate lying son of a bitch” But that might be a little stretch from “5th rate, don’t ya think?”

    Stan Adelstein State Senator (Ret)

  19. marvin kammerer 2018-12-20 22:28

    god bless you stan.these young ladies are the hope of the fresh breeze blowing across the seed bed of hope in sd.!

  20. Darin Larson 2018-12-21 13:54

    Residency is generally a matter of intent. If a person leaves SD after establishing residency here but still has the intent to return to reside here at some future date, that person would likely retain residency here. Only if a SD resident leaves the state and remains in another state with the intention of making the new state their permanent home would the person become a resident of the new state.

    See for example the Definition of Residency for Voter Registration (SDCL 12-1-4)
    “For the purposes of this title (Title 12), 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.”

  21. Rod Hall 2018-12-21 16:51

    Will out of state pheasant hunters claim residency because they lived in SD a few days some years before and plan to return so they can shoot pheasants again?

  22. Cory Allen Heidelberger Post author | 2018-12-22 08:37

    Excellent point about intent, Darin. Shad’s bushwah does nothing to establish the intent of either Foster or Pourier. We would need to see a broader history their residency… or just hear straight from them to understand their true residency. So far, Shad has not met any burden of proof that would stand up to any review.

    Of course, with the absolute authority over qualifications granted by the SD Supreme Court, the Republican majority in each Chamber can set its own standards of evidence. If they like Shad, they could say, “Sure, Shad, good job. We’ll disenfranchise all those Indians, put Liz May back in the House, and put the guy Foster beat, Bill Hines, in the Senate.” The House and Senate can seat or not seat pretty much anyone they want, if they want to ignore the will of the voters.

  23. Cory Allen Heidelberger Post author | 2018-12-22 08:39

    Rod, the residency statute Darin cites should preclude hunters from making such a claim to residency. (Our hunting license statutes certainly would!) The language about “actually liv[ing]” here, “permanent home” elsewhere, and leaving here for a “temporary” purpose likely preclude the hunting or business visitor from speciously claiming residence.

    But then there are those RVers….

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