Sen. Jensen Plans to Formally Challenge Foster; Leader Langer Says Foster Qualifies to Serve
The Foster/Pourier residency challenge takes three new twists this weekend.
First, Rapid City right-wing activist Jordan Mason recruits District 27 House race runner-up Margaret Ross to swear an affidavit claiming that neither her fellow Lakota candidate in the District 27 House race, Peri Pourier, or the Senate winner in District 27, Red Dawn Foster, were living in District 27 in August 2018, during the campaign.
Unfortunately for Mason and others trying to steal the District 27 election two months after the voters were counted, Ross’s affidavit adds no legal mass to the molehill he and Shad Olson have been trying to mountainize.
First, Ross’s affidavit consists entirely of hearsay. She refers to things she says she heard from an unnamed source, Red Dawn Foster, and Kevin Killer. At no point does Ross attest to anything she herself knows about the legal question at hand. In court, this testimony would be useless.
Second, Ross does not address the central questions of law that Mason and Olson are trying to build into a case for not seating two fairly and freely elected legislators. The question of where in South Dakota Foster and Pourier were living in August 2018 has no bearing on their qualifications for the Legislature. Article 3 Section 3 of the South Dakota Constitution requires that legislators have been residents of the state for at least two years prior to their election. Foster and Pourier could have been living anywhere in South Dakota and still satisfy that criterion. The fact that someone temporarily occupies a different dwelling, tepee, or RV does not negate one’s legal voting residence, and legal voting residence is the only hook on which this challenge to Foster’s and Pourier’s qualifications could be hung. Like everything else Mason and Olson have thrown at the Legislature, Ross’s hearsay attestations miss that hook.
Senator-Elect Lee Schoenbeck (R-5/Watertown) sent a strong signal last weekend that the allegations against his incoming colleague Senator-Elect Foster are “stupid.” Senator Phil Jensen (R-33/Rapid City) appears to have a far greater tolerance for “stupid” than Schoenbeck. Yesterday Senator Jensen sent what he labels an “Official Challenge to the Qualifications of Senator-Elect Red Dawn Foster” to Chief Justice David E. Gilbertson of the South Dakota Supreme Court.
Now let’s stop right there: why Senator Jensen is nagging the Chief Justice, I can’t figure. As numerous court precedents have established, Article 3 Section 9 of the Constitution makes the Legislature the sole judge of its members’ qualifications. Chief Justice Gilbertson’s only legal reaction to this challenge can be to shrug and go back to work on his State of the Judiciary Address.
If Senator Jensen read the constitution, case law, and this blog, he’d understand that. But he charges ahead with this complaint and asks the Chief Justice not to interfere. Not to interfere—jeepers! You’d think real conservatives would understand when they can conserve their words and not waste the court’s time with documents that can only end up on the record and in the hands of liberal bloggers….
As frequently happens to poor Phil, Senator Jensen appears not to have the support of his own party leadership. Senate Majority Leader-Elet Kris Langer (R-25/Dell Rapids) seems to have sent a text to her caucus Friday* reminding them of all the inaugural and swearing-in festivities, then telling them to get off the Foster fuss:
You may have seen information concering Red Dawn Foster. At this point, leadership has conducted research, consulted with an attorney, and held numerous conference calls. She appears to be a resident of South Dakota & Dist 27 according to SD law as explained to us by the Attorney General. It will be an exciting weekend and a great kick off to the 2019 session [Senator-Elect Kris Langer, text message to fellow Senators, 2019.01.04*, obtained by Dakota Free Press, 2019.01.05].
That clear statement from Leader-Elect Langer, in addition to the blunt commentary of Senator-Elect Schoenbeck last Saturday, indicates that the Senate will dismiss Senator Jensen’s challenge pretty quickly. It will be interesting to watch how well Senator Jensen is able to build the kind of working relationship with Senator Foster and the leader he’s bucking that I hear is so important to legislating effectively.
I have heard nothing to contradict earlier intelligence from the House side that the House GOP leadership decided in a conference call before the New Year to seat Rep.-Elect Pourier with every other legally elected Representative on January 8 (that’s this Tuesday!), then conduct some sort of investigation. If the House leadership does indeed take that route, and if it conducts an honest investigation, it will find that the information presented so far by Olson, Mason, and now Margaret Ross consists of hearsay, irrelevant details, and misdirected legal arguments that fail to establish any basis for denying the will of the voters of District 27.
Correction 14:56 CST: Senator-Elect Langer sent her text Friday. The original document I received contained only a time, not a date.