With Republicans Al Novstrup and Dan Kaiser victorious in the District 3 House race, we will not have the opportunity to test aspiring assistant majority leader Lee Schoenbeck's determination to veto the will of the people and refuse Democrat Burt Elliott a seat in the State House. 3,404 District 3 voters were undeterred by the well-publicized fact that Elliott only rents a basement in District 3 and likely keeps his main underwear drawer in District 2, but that wasn't enough to beat Kaiser's 3,709 or Novstrup's 3,931. (Fellow Democrat Pat Hale drew 2,778 votes.)

The voters have spared Elliott Schoenbeck's wrath, but perhaps not Marty Jackley's:

Brown County State's Attorney Larry Lovrien said Brown County is not looking into the matter, but it's his understanding that Secretary of State Jason Gant has asked Attorney General Marty Jackley to investigate the matter.

"It's the function of the attorney general to look into these things," Lovrien said.

At issue is a sworn statement signed by Elliott on his petition that says he is a resident of the district in which he is sought election. Lovrien said if that sworn statement is false, that's perjury, which is a felony offense [Elisa Sand, "AG Reportedly Asked to Look into Elliott Residency," Aberdeen American News, 2014.11.05].

Strangely, the AG's office says it knows nothing about any residency complaint:

Sara Raburn of the attorney general’s office said she checked with a couple of individuals within the office on Wednesday, and that they did not know anything about an investigation into Elliott’s residency [Elisa Sand, "South Dakota Attorney General Has Yet to Be Asked to Investigate Burt Elliott Residency," Aberdeen American News, 2014.11.06].

Demonstrating that he was more interested in electioneering than law, Representative-Elect Novstrup, who beat the drum hard against Elliott's fictitious residency during the campaign, tells Sand he suddenly "doesn't have an opinion" on the Elliott residency question:

“It’s completely out of my hands,” Novstrup said, passing on that determination to the Brown County’s state’s attorney or the attorney general’s office [Sand, 2014.11.06].

Perhaps Novstrup just wants to let bygones be bygones. Elliott says he thinks his election loss moots the question.

Elliott is mistaken. As we know from the Annette Bosworth and Clayton Walker cases, oaths matter. Petitions matter. Honest voter registration matters. If the Attorney General determines that any citizen has sworn a false statement, the Attorney General should hold that individual accountable.

But remember, the case Republicans have made against Elliott for perjury rests on this one sentence to which every South Dakota voter swears on the voter registration form:

I actually live at and have no present intention of leaving the above address.

If Attorney General Jackley decides that Elliott has committed perjury by declaring that he "actually lives" at his District 3 address, then Attorney General Jackley will find himself obliged to prosecute some 1,700 "residents" of 110 East Center Street, Madison, South Dakota, 57042 of perjury. That's about how many traveling RV owners have registered to vote at MyDakotaAddress.com. Not one of them "actually lives" at 110 East Center. The same will be true for thousands of other RVers registered at similar addresses in Hanson, Minnehaha, and Pennington counties.

AG Jackley, Republicans, are you ready to unleash that torrent of litigation?


Legislator-in-waiting Lee Schoenbeck gets to shout "Wrong! Wrong! Wrong!" in my ear all night.

On Sunday, the Aberdeen American News ran an article headlined, "Secretary of State: Elliott Residency Valid." Elisa Sand's article said that Secretary of State Jason Gant found no violation in Democrat Burt Elliott's use of an Aberdeen address for his voter registration and District 3 House nominating petition. Republicans hollered that that headline was misleading; I defended the headline.

Mr. Schoenbeck, who is keenly interested in keeping Elliott from taking a seat in his House, sends me a link to this correction from the Aberdeen American News:

Headline wrong: South Dakota Secretary of State Jason Gant said District 3 House candidate Burt Elliott’s election petition met all requirements for Elliott to run in the district. The headline suggested Gant could determine the validity of Elliott’s residency, when it should have referred to his petition.

We regret the error ["Setting It Straight," Aberdeen American News, 2014.10.29].

As I said in an e-mail to Mr. Schoenbeck, Arrgghh!

I think the Aberdeen paper caved too easily... but the Aberdeen paper has called it, and I cede the point. The headline should have read, "Secretary of State: Elliott Residency Valid for Nominating Petition."

My friend Elisa Sand should now follow up with an in-depth analysis of the Schoenbeck argument, the Heinemeyer precedent, and the implications for South Dakota's thousands of RV voters.


Pat Powers and the South Dakota Republican Party continue to scream about Burt Elliott's questionable residency status. I continue to find the question of where we allow a citizen to register to vote practically and Constitutionally important: should the Schoenbeck argument that Elliott committed perjury by declaring District 3 his voting residence also convict the thousands of full-time RVers and college students who spend a majority of the year somewhere other than the address on their voter registration cards?

Enter former Powers patron Jason Gant, our Secretary of State. He says as far as he's concerned, Elliott has committed no foul:

The facts are simple. Elliott’s longtime residence is south of Aberdeen near the intersection of South Dakota Highway 10 and 137th Street, a house that sits within the boundaries of District 2, but not far from the boundaries for District 3. Legislative district boundaries were redrawn after the 2010 census and before the 2012 election. When Elliott filed his petition as a District 3 representative, however, an Aberdeen address in the 1700 block of South Fourth Street address was listed.

It’s an address that matches with Elliott’s voter registration, and Secretary of State Jason Gant said in order for a candidate’s petition to be valid, his or her address on the petition must match the address on his or her voter registration card. The candidate’s petition must also have the appropriate number of valid signatures.

Since Elliott’s petition met those requirements, Gant said, he was certified as a candidate.

“Everything is accurate based on that,” said Gant, a Republican.

If there’s a desire to pursue the legality of the issue, Gant said, that issue would have to be challenged in court [Elisa Sand, "Secretary of State: Elliott Residency Valid," Aberdeen American News, 2014.10.26].

Hmmm... when Secretary of State Jason Gant validated a nominating petition of a Republican Powers liked, Powers was more than happy to trumpet that candidate's propaganda. Powers also poo-pooed further court challenges, telling those he called axe-grinders to settle for changing statute next session. But now faced with his pal Gant's validation of a less-favored Democrat's petition and with the argument from the Aberdeen American News editorial board that Elliott's opponents should settle for changing voter registration laws in the 2015 Legislature, Powers goes purple with rage. He misportrays the editorial, elides Secretary Gant's reasoning, and just goes on shouting, impervious to the fact that law and his patron are not on his side.

District 3 voters are now well aware of Elliott's residency situation. Elliott has a right to be on their ballot, and they have a right to elect him and send him home, wherever home may be. Legislators upset by Elliott's opportunity should start crafting their voting-rights reform bills for 2015... and prepare to be watched closely by students, RVers, and all of us interested in ensuring the right to vote of every person who calls South Dakota home.


Burt Elliott is in trouble. The Brown County Democrat wants to return to the Legislature to serve District 3. Unfortunately, he lives in District 2. Elliott said at a Brown County forum on September 27 that while he has a house in District 2, he has rented an apartment in District 3. Elliott says he made the move for "family issues," but pretty much admits that he has cited this apartment address as his voting residence to get around the fact that Republicans gerrymandered his house address out of District 3, which he served from 2001 through 2008.

Soon-to-be District 5 Representative Lee Schoenbeck is already swinging his leadership bat. The likely Republican House leader has reached across district lines to warn Aberdeen voters that if they elect Democrat Burt Elliot as District 3 representative, he will work to refuse Elliott a seat:

Schoenbeck said that, if Elliott is elected, he could run into trouble with a clause of the state Constitution that reads, “Each house (of the Legislature) shall be the judge of the election returns and qualifications of its own members.”

He said the House might rule that Elliott doesn’t actually live in District 3 [Scott Waltman, "Republicans Question Elliott's Residency," Aberdeen American News, 2014.09.28].

We don't see a lot of candidates from one district telling folks in other districts whom to elect. And to threaten to disenfranchise another district's majority takes grit.

But Schoenbeck can back his grit with law. Back in 2006, my Madison neighbor Jeff Heinemeyer sold his house in Madison and moved out to Lake Madison. Yet he fought to keep the Madison seat he'd won on the Heartland Consumer Power District board by renting an apartment downtown and declaring that flat his voting residence. In November 2008, the South Dakota Supreme Court kicked him off the board, saying renting an apartment while maintaining a house as one's practical primary residence does not satisfy the statutory criteria for voting residence.

Schoenbeck also has the state constitution on his side. Article 9 Section 3 makes each chamber of the Legislature "the judge of the election returns and qualifications of its own members." Schoenbeck and a Republican majority can overturn the popular will of District 3, refuse to seat Elliott, and submit the resulting vacancy to the Governor for filling.

Heinemeyer v. Heartland gives Schoenbeck authority to invoke the Legislature's power to reject an elected representative. Schoenbeck further contends that Elliott may have committed perjury when he signed his voter registration application, which includes the statement, "I actually live at and have no present intention of leaving the above address."

I wonder if Schoenbeck will also declare perjurious South Dakota's numerous RV voters. The Lake County Auditor's office informs me that about 1,700 people have sworn to that same statement of residency 110 East Center in Madison, the physical address of MyDakotaAddress.com. As is the case at similar businesses in Hanson, Minnehaha, and Pennington counties, RVers can rent a mailbox at 110 East Center, register to vote in Lake County, and enjoy the legal benefits of voting residency. They don't "actually live" at 110 East Center, and "actually live" figures prominently in Heinemeyer v. Heartland.

Are the thousands of RVers making South Dakota their paper home all guilty of perjury? I know that Republicans have much more interest in thwarting a Democrat's campaign for Legislature than in disenfranchising thousands of wealthy retirees who enjoy dodging taxes. But the same logic and law that compel Schoenbeck to stand against Elliott's manipulation of his voting residence would seem to apply to the RVers who spend less time in their chosen voting residence than Heinemyer or Elliott.


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