Republican State Senator Craig Tiezen’s legislation to strip voting rights from people who chose to make South Dakota home is set to be heard in committee this week. And hopefully the unconstitutional measure will pass to the 41st day in short order.
The legislative measure adds the following to SDCL 12-1-4 with regards to how residency for purposes of voting is determined:
No person may register to vote using a business location, campground, or post office box as the registration address. However, if no other residential address or valid physical description of the location of the residence is available, the person may appeal to the county auditor in the county of registration. The county auditor shall determine residency based on the following principles:
(1) The sole basis for the person’s presence at the location is not based on a business or a commercial use, such as a mail forwarding service;
(2) The residence of the person is a place in which the person’s habitation is fixed and to which the person has a definite plan to return following an absence;
(3) The person is not claiming residency of the state solely for taxation or insurance purposes with no intention of physically remaining or returning; and
(4) The person maintains a physical domicile with long-term sleeping accommodations at the residence.
If the county auditor denies the registration, the person may appeal to the Office of Hearing Examiners as a contested case pursuant to chapter 1-26D for the determination of residency. If the person does not meet the principles listed, the administrative law judge may still choose to allow voter registration if the judge determines circumstances indicate legitimate residence of the state. Prior long-term residence in the state shall be considered proof of intention to return to the state.
The main problem? In addition to it being bad policy, and worse legislation, as I wrote about back in December, the bill faces a multitude of problems, not the least of which is that fact that it’s unconstitutional, via Dunn v. Blumstein:
Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of ” `a fundamental political right, . . . preservative of all rights.
This exacting test is appropriate for another reason, never considered in Drueding: Tennessee’s durational residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.
“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”
In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are “necessary to promote a compelling governmental interest.
Preservation of the “purity of the ballot box” is a formidable-sounding state interest. The impurities feared, variously called “dual voting” and “colonization,” all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. But it is impossible to view durational residence requirements as necessary to achieve that state interest.
In a nutshell, Tieszen’s effort to preserve the “purity of the ballot box” by keeping those RV residents out has all been heard before, and declared out of bounds by the US Supreme Court.
I’m surprised his bill hasn’t been withdrawn yet, in light of the impossible hill of constiuttionality it has to climb. There might be measures that are important fights, and well worth what South Dakota taxpayers would spend to take them all the way to the supreme court of the land.
But denying someone the right to vote because they live in an RV versus an apartment? Not so much. Let’s quickly put this measure out of it’s misery this week in Senate State Affairs on Wednesday, and move on to worthwhile matters.