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.