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:
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:
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.
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.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.