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Thirty Days or One Night—Voting Residency Still Requires Intent to Stay in South Dakota Permanently

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.


  1. Eve Fisher 2022-07-06 12:54

    Yes, it’s the South Dakota one-night residency provisions that’s fueled all our RV business, like – which, as you remember, was only shut down after the FBI investigated and found it was being used to launder stolen cars from the New England states. Ironically, when I found out about that I wrote AG Jackley at the time about how this was complete BS, and he wrote me back to let the AG’s office know when a crime was committed. I have some thoughts on that comment…

  2. John 2022-07-06 13:02

    Good roll out . . the intention drives the residency.. One may only have one residency . . but one may have many domiciles.
    A domicile may be an RV,, a boat, a winter house in Arizona and a beach house in Coronado, a dorm room, or an APO/FPO address overseas, or DC for congress & staffers.
    The “intent” is the fuzzy part for the RVers . . . intend to return . . . sure, once every 5 years to update a driver license . . .
    Intent makes it about impossible to prosecute, years after the fact, for say, voting fraud (presuming they didn’t vote more than once), but merely in the ‘wrong’ jurisdiction, or state tax evasion. IRS uses a 6-month rule of one actually was, similar to states with an income tax. New Yorkers trying to claim their Florida beach house as their residency are often asked to PROVE to New York, that they physically were in the state income tax free state for 6 months.

  3. Donald Pay 2022-07-06 13:45

    I don’t know about you, but my head spins following all the twists that Legislature took making pretzels of state statute. As they have tried to restrict all sorts of democratic rights while assuring they could collect tax dollars and fees from othewise out-of-state residents, it makes me understand how corrupt SD is. Why would I want to come back to that?

    Do I intend to return after 20+ years of Wisconsin residency? No. I suppose someday I could return for a short visit. Maybe I’ll return as dust after my death. So, does that make me a resident? I have no effing clue.

  4. Cory Allen Heidelberger Post author | 2022-07-06 14:14

    Eve, did anyone ever go on trial or to prison for that scheme?

  5. larry kurtz 2022-07-06 14:18

    If you are conceived in South Dakota does that automatically make you a resident? Republicans believe a fertilized egg has civil rights, so?

  6. Cory Allen Heidelberger Post author | 2022-07-06 14:21

    John, check that: I find various legal sources saying residence is where you live at the moment while domicile is your permanent home. Thus, it seems one can have many residences (primary, secondary…) but only one domicile.

    South Dakota voting law does not use the word domicile, only residence, but voting residence involves intent, returning, and permanence. South Dakota voting law thus appears to use voting residence as a synonym for domicile.

  7. Cory Allen Heidelberger Post author | 2022-07-06 14:23

    Absurd as Larry’s point seems, it is the logical conclusion of SDGOP thinking.

  8. leslie 2022-07-06 15:49

    i’m sure someone has done a nation wide survey on residency “quirks” (to say the least), but it holds no interest, other than for as many requirements as there are, there are as many inconsistent definitions),…and states’ rights? pfsst!

    May as well study the head of a pin!

  9. Arlo Blundt 2022-07-06 16:06

    I’m thinking of donating my body to the USD Medical School and having the funeral home put up a tombstone on my parent’s plot. I suppose that gives me permanence and an intention to return. I don’t think I’ll vote again in South Dakota as I no longer hold property there but I may rent a place for the late summer in the glacial lakes for fishing and then rent a place for pheasant hunting in October and November. Given that scenario am I a potential South Dakota voter, once again.??

  10. John 2022-07-06 17:57

    Cory, thanks. It is that muddled. The military tacks “state of residency” in official records, for withholding of state income taxes, etc. The tap dance is explained here, in part, imperfectly. I mean, if you and your bride have a home in ABN, a cabin at Lake Madison, a cabin at Richmond – which is your residency? Which is your domicile? Investopedia agrees with you. Hat tip.

    It’s possible for two wed service members to have two different states of residency. Why would they do that? In state tuition options for brats (military kids). Favorable draw for uncommon hunting tags? Greater hunting season for residents? Favorable estate law? (States are a pain in the ass in a federal nation.) Why do we need 50 ways to get a driver or hunting license?! Or >3,000 policing jurisdictions?!)

    Many military folks who entered the service from states with income taxes, immediately, claim a new state residency upon assignment and arrival in one of the 10 states without state income tax – saving thousands, during the pendency of ones service (even though they move all over kingdom come for 20-30 years) (even though they secretly do not want to live in Greg Abbot’s electrical nightmare of Texas).

    Even this “modern” “official” DOD Form mangles the concepts:

    Uncommon cases exist where US Citizens have no state of residency. This typically may occur among military brats or foreign service officers kids. The kid, whether born in the US or overseas is deemed a US citizen. May have an international driver license, or no driver license. Certainly has a passport – but those ignore statehood. The kid is emancipated. Then the state of residency issue arises when when the adult (kid) chooses to live in the US, chase college, need a US (state) driver license, et al. It’s an administrative version of being ‘born again’ – especially post 9/11. Personal experience.

    Also consider: The “cute” implication is that a few liberal billionaires, in theory, could pay a few thousand to coastal ‘over democratic voters’ to fly to SD, ‘establish residency, then fly back to their coastal job$. It would swing elections. Just as much as the it’s thought the RVers swing elections. In such a manner the US would have a “majority rule” even though the majority is packed in a few coastal districts. There are so many democratic over-voters in CA, that with a plane ticket and motel room, liberal billionaires could swing SD, ND, WY without breaking a sweat. No need to pay people to live in this cultural desert. Fly them out to express their “intent”.

  11. Cory Allen Heidelberger Post author | 2022-07-06 19:10

    Interesting examples, John! Sounds like whenever we are talking residency or domicile, we’d better check the applicable laws as written in the jurisdictions.

    Military kids, US citizens, but no state of residence—what an interesting Twilight Zone! Do they have any way to vote while in that condition? Ah! I find that South Dakota apparently would allow such stateless citizens to vote absentee in South Dakota if they have a parent or spouse whose last state of residence was South Dakota.

    Rigging the vote with coastal fly-in voters (or should I say unrigging the Electoral College to establish proper majority rule?)—I suspect any sign of that activity would get the Legislature to convene a Special Session and tighten up its definition of residency for voting really quickly.

  12. R. Kolbe 2022-07-06 19:36

    If on needs 30 days to circulate a petition for a petition shouldn’t one need to be a 30 day resident to contribute to a polio campaign???

  13. P. Aitch 2022-07-07 03:20

    If I intend to have some of my ashes strewn in your wind (California doesn’t need my liberal vote) am I entitled to claim a domecile and a singular right to vote in SD and cast my ballot for Jamie Smith for Governor?

  14. Cory Allen Heidelberger Post author | 2022-07-07 08:37

    AH, R. Kolbe, now you invoke SD Voice v. Noem I, the 2019 case in which my able counsel and I overturned Initiated Measure 24, South Dakota’s attempt to prohibit out-of-staters from contributing to ballot question campaigns. The state cannot impose residency requirements on campaign contributors because First Amendment rights apply equally to everybody, regardless of what state they live in. The League of Women Voters should cite that case loudly and say the state is committing the same discrimination with its circulator residency requirement.

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