Unconstitutional voting residency restriction bill (SD 164) to be heard this week. 41st day, and moving along seems the best remedy.

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.

Read it here.

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.

Read it all here.

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.

4 Replies to “Unconstitutional voting residency restriction bill (SD 164) to be heard this week. 41st day, and moving along seems the best remedy.”

  1. Sewing Ladies

    You assume, Mr. Powers, that the South Dakota Legislature actually cares if its legislation is constitutional? I think, based on observations made on prior sessions, and even with some current legislation, that they are either woefully ignorant, or simply don’t care. I can tell you that our group misses the days when Kristi Noem was in the legislature. She was a great leader, and knew when something would not stand up to a constitutional challenge. We could use more like her in Pierre.

  2. Anonymous

    –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.

    Leave the legal analysis to others.

    Dunn had nothing to do with RVers, so it’s reasonable to believe that the US Sup Court may find that SD has a legitimate a& compelling state interest in subjecting RVers to stricter scrutiny. . A lease on a house or apartment or real property is quite different than an RV that may be driven away at a moment’s notice, and thereby demonstrates a substantive lack of intent to remain in the balloting jurisdiction.

    “purity of the ballot box ” was NOT found to be unconstitutional. The Dunn court found it a legitimate rationale as long as there was a compelling state interest for enacting the accompanying regulations. You also left out the part of the Dunn case that ALLOWED and blessed durational residency requirements of 30-50 days.

    It’s always dangerous to do a google search, find a case, and assume it’s on point and unconstitutional.

    There’s plenty to not like about this bill, but sweeping claims that it’s unconstitutional based on the author’s own prior screeds is simply foolish.

  3. Anonymous

    It’s nice to see commenters pretending to be someone else. It is kinda weird when the folks in charge do it though!!!

    no one is fooled….