Last week when the League of Women Voters filed its lawsuit against South Dakota alleging that a 30-day residency requirement for ballot question petition circulators is unconstitutional, I noted that their challenge may not be challenging the right residency requirement. The League is challenging the change wrought in 2020 by Senate Bill 180 (a multi-faceted law currently enjoined and under appeal at the Eighth Circuit) that requires individuals to reside in South Dakota for 30 days before circulating ballot question petitions. Throwing out that requirement would still leave in place South Dakota’s requirement that petition circulators reside in South Dakota.
Two League of Women Voters members, acting as co-plaintiffs to this lawsuit, say they wanted to help circulate the League’s initiative petition on independent redistricting in 2021. KELO-TV explains their complaint that SB 180’s 30-day requirement prevented them from circulating the petition… but also, perhaps inadvertently, lays out why the 30-day residency requirement isn’t the central problem:
Due to the new law, the South Dakota branch was unable to use members of the organization outside of South Dakota. That included one plaintiff named in the case, Susan Randall, who now resides in Michigan but owns property in South Dakota. Randall and her husband had planned to spend two weeks in South Dakota in 2021 to assist in circulating petitions but were not able to because of the law in place.
The lawsuit directly cites what they call an “anomalous situation” where someone like Randall could spend one night in South Dakota and be eligible to sign a petition and vote, after securing residency, but would need to spend 30 days in order to circulate the petition.
“Basically, the idea is there’s our federal constitution… does not stop when you cross state lines. So, your free speech is still your First and Fourteenth Amendment rights are still active, whether or not you’re in the state you reside,” [LWV-SD President Amy] Scott-Stolz said.
In fact, a non-resident of South Dakota only has to reside in South Dakota for one night to become eligible for residency and therefore is able to register as a voter as long as they don’t have a residence out of state [Jazzmine Jackson, “Lawsuit Against Noem Focuses on Ballot Initiative Process,” KELO-TV, 2022.07.05].
Yes, you can move to South Dakota and become eligible to vote here after one good night’s rest. I would contend you need not even wait until after spending a night: the statute defining voting residency, SDCL 12-1-4, is all about intention, so I’d say the moment you show up in Sioux Falls or Roscoe with your van and close on your house or pay your rental deposit, you’re home, and you’re a resident, eligible to register to vote and carry petitions.
But as illegal immigrant candidate Logan Manhart is now painfully aware, you can’t reside in two places at once. KELO-TV’s report says co-plaintiff Randall “resides in Michigan.” Nothing in the report or the League’s complaint indicates that Randall intended to give up her Michigan residence. Randall and her husband intended to visit South Dakota temporarily, then return to Michigan. The temporary nature of the Randalls’ visit and their intent to return to Michigan mean they could not have claimed voting residence in South Dakota. It thus was not the 30-day residency requirement of SB 180 that thwarted their participation in the 2021 petition drive; it was the underlying circulator residency statute that the League’s complaint does not challenge.
I agree that 2020 SB 180’s 30-day residency requirement discriminates against new South Dakotans and improperly deprives those residents of their right to participate in the political process of their new home. I’m simply concerned that the individual co-plaintiffs were stopped from circulating not by SB 180 but by the broader residency requirement for petition circulators, a statute that this lawsuit does not challenge.