Auditors: New voter residency rules difficult to manage for local election officials

The top election official in South Dakota’s largest county says a law passed last winter that requires all voters to live in the state for 30 days has turned into a headache for her office.

Some full-time travelers or out-of-state residents without a home in Minnehaha County wind up on its voter rolls through automatic registration at driver’s licensing stations, Auditor Leah Anderson told county commissioners last week. Voters list their addresses on their registration forms under penalty of perjury, but Anderson’s concerned she won’t have time to verify suspect addresses and voter eligibility in time to comply with the new law.

Anderson hopes to see lawmakers or Secretary of State Monae Johnson’s office adjust the statute or provide clearer guidance on how to enforce it.

Twenty years ago, lawmakers passed a similar bill. The next year, on advice from then-Secretary of State Chris Nelson, legislators repealed it.

Like Johnson, Nelson was a backer of the idea of a 30-day residency requirement for South Dakota voter registration. But within months of the Nelson-backed 2003 version taking effect, he appeared before the legislature to tell them the law was unenforceable.

“After that bill was passed and everybody went home, we were contacted by some attorneys who told us that what that bill did was not lawful under federal law, and subsequent study of that issue by the Attorney General’s Office discovered that not only was it a problem under federal law, but also the federal Constitution,” Nelson said during a 2004 legislative hearing.

Nelson, now a public utilities commissioner, told South Dakota Searchlight this week that the state had been threatened with a lawsuit at the time, and that he and then-Attorney General Larry Long concluded the state couldn’t win.

To justify a durational residency requirement, court precedent suggests there must be a compelling state interest. 

“Larry and I looked at it back then, and we must have concluded that we didn’t have a compelling state interest,” Nelson said.

Residency rule had broad support 

Anderson and Secretary of State Monae Johnson both campaigned on the issue now causing trouble at the Minnehaha County Auditor’s Office.

A 2019 article from South Dakota News Watch noted that some companies that offer mailbox services expressly advertise them as an entry point to “residency” in a state without income taxes.

Johnson and Anderson both wanted to minimize the potential electoral impact of visitors or full-time travelers without local ties, and out-of-state residents who register to vote and get a driver’s license in South Dakota to avoid income taxes. Lawmakers overwhelmingly backed the bill that created the 30-day residency requirement. During debate on the measure, they reviewed documentation showing similar rules in other states.

The goal is to make sure voters who live or own property somewhere else register in that state and vote on election contests in those locations, Anderson said.

“I love it when people want to vote. But if they’re voting on issues that affect our state, and they don’t live here, and they don’t pay taxes here, I feel like that’s a problem,” she said. 

On the Senate floor during the legislative session, Sioux Falls Democrat Reynold Nesiba spoke in support of the 30-day requirement for that same reason.

“There are thousands of people registered to vote at DakotaPost in my district,” Nesiba said, who pointed to laws in other states to argue that the rule wouldn’t be wildly out-of-step with other states. “I don’t want people who live in Arizona or live somewhere else to vote in our elections.”

Backers of the law consistently said they didn’t intend to block full-time travelers with South Dakota ties, though.

According to Anderson, her current difficulties begin at driver’s licensing stations. Federal law requires such stations to register eligible drivers to vote unless they opt out. 

Under state law, full-time travelers are only required to live in South Dakota for 24 hours to get or renew a driver’s license – 29 fewer days than the law now requires people to live in the state before registering to vote.

The latest driver’s license application forms in South Dakota now include language reflecting the 30-day residency requirement for voter registration, Anderson said, but “but I don’t think people are paying attention to it.”

Dozens of what Anderson sees as questionable new or renewing voter registrations now arrive for processing each week from the Department of Motor Vehicles, she said, and that’s created a lot of work.

DakotaPost in Sioux Falls, for example, offers mailing addresses to customers, but it’s not a physical address at which a person could conceivably live. There are already more than 4,600 voters in Minnehaha County who list it as their own.

Anderson doesn’t plan to reach out to each of those voters to find out their residential address. No state law is retroactive unless lawmakers explicitly make it so, which means current registered voters won’t be at risk of having their names purged from the voter rolls.

The story is different for new voter registrations that list that address or another post office box as both their mailing and physical address, Anderson said. For them, she’s sending out letters asking for a residential address. By law, the voter gets 30 days to respond. Anderson said she plans to give another 30 days before logging their registrations as “incomplete or invalid.”

Pennington County Auditor Cindy Mohler is taking similar steps with new registrations that lack residential addresses. Some addresses used by travelers can theoretically double as residences, such as America’s Mailbox, which is located near an RV park in Box Elder at which people can stay.

New registrants who list that address needn’t worry about their voter eligibility at this point, Mohler said. Those who sign up and list a mailbox don’t get a pass.

“We have been sending out letters to those people questioning ‘are you really living in a personal mailbox,’” basically,” Mohler said. “We’re not saying it like that, but we can’t register you in a personal mailbox, because you can’t live there.”

A Walmart parking lot or street corner could count as a residential address, Mohler said, but the voter needs to offer some manner of location beyond a box.

As far as verifying whether any voter has actually spent 30 days at that address, “it’s pretty hard for us to prove one way or the other.”

The guidance from Johnson, according to emailed statements to South Dakota Searchlight, is for auditors to work with local state’s attorneys to determine how best to manage eligibility questions.

There may be open legal questions on what might constitute a “physical address” or whether 30 days of residency means 30 days in a calendar year or 30 separate days scattered throughout the year. There’s no mechanism for rulemaking laid out in the law that lets the secretary of state define those things, and “we are not able to provide legal interpretations because that is not the statutory role of this office,” the statement read.

State law “outlines that the county auditors are the ones who determine voter registrations for eligibility and completeness and the language may very well require a court’s interpretation.”

Constitutional questions

Anderson would like people who go to the driver’s license station to pay closer attention to the instructions on the form, and to opt out of voter registration if they plainly don’t or won’t qualify.

Anderson said she spoke with one voter registered in her county who told her that they only live in South Dakota for a month each year.

“If a person does truly live in Minnesota, 11 months out of the year, they’re very able to register to vote where they live,” she said.

The ultimate goal of bringing up the issue before commissioners this week, she said, is for lawmakers and the secretary of state to adjust the law.

A 30-day residency requirement has been in place for years for local and school board elections. The new law adds the requirement to general and primary elections, which include federal contests.

“If the Legislature could pass something where these people could still have the right to vote, and they could only vote in federal races, that would be great,” she said.

The issue of striking voters from the rolls over the duration of their residence is potentially consequential from a constitutional standpoint. 

On Tuesday in North Carolina, a group called the North Carolina Alliance for Retired Americans challenged a 30-day residency requirement as an unconstitutional violation of the Voting Rights Act.

The 1972 U.S. Supreme Court case Dunn vs. Blumstein established that deadlines for registration before an election — in South Dakota, for instance, voters must register 15 days before an election — are acceptable to allow time to prepare for elections. But the justices struck down a Tennessee law requiring that voters live in the state for a year before becoming eligible to register.

The North Carolina lawsuit cites that case, as well as Section 202 of the federal Voting Rights Act, as reasons to strike down that state’s 30-day residency requirement. 

The Act says that for presidential elections, “the imposition and application of the durational residency requirement” longer than a state’s registration deadline “does not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.”

The lawsuit argues that North Carolina’s 30-day rule “prevents voters who could otherwise lawfully register and cast ballots from doing so just because they moved into the state too recently.” 

“This requirement applies an arbitrary residency requirement to deny voters their right to participate in elections in their new domicile,” the complaint says.

Libby Skarin, deputy executive director of the American Civil Liberties Union of South Dakota, said in a statement that South Dakota election officials ought to be cautious and careful in applying laws that impose “arbitrary residency requirements” and might result in removing eligible voters from the rolls.

“Because nothing is more sacred to our democracy than the right to vote, our elected officials should be doing everything they can to encourage people to vote – not making it harder,” Skarin said. “Elections are central to our democracy and to our government’s legitimacy, and restricting who is eligible to cast a ballot limits the ability of all South Dakotans to participate in democracy.”

Other states have similar rule

Eugene Mazo, an election law scholar and professor at Duquesne University in Pittsburgh, said the Dunn case doesn’t explicitly strike down durational residency requirements, but rather ties them to compelling state interests.

“The Dunn decision just said that you can’t have a one-year durational residency requirement,” Mazo said. “But that doesn’t mean you can’t have a 30-day durational residency requirement.”

The key, he said, is for states to tie registration requirements to the administrative process of election preparation. That’s why it’s acceptable to set pre-election registration deadlines, he said. 

“‘List maintenance’ is the word that we use,” Mazo said. “States have voter lists, and they have to check that these people are actually in the state and that their address is a real address. It takes some time to do that.”

Pre-election registration deadlines are common for that reason, Mazo said, while durational restrictions are relatively rare. But they do exist. The South Dakota Legislative Research Council prepared a document prior to debate in Pierre on the 30-day measure that pointed to North Carolina, Illinois, Rhode Island, Alaska and Nevada as states that require 30 days of residency to vote. The same document pointed to Arkansas, Nebraska, Kansas and Idaho as states that define residence, as South Dakota does, to mean a physical location a person will return to.

The law in South Dakota has not been challenged on constitutional grounds. The threat of a challenge in 2003, however, was enough to convince lawmakers to overturn the previous version of the 30-day rule. Nelson, the former secretary of state, didn’t tell lawmakers of the lawsuit threat when he advised them to repeal it in 2004, but he does remember being convinced that the state would lose in court if it attempted to enforce the law.

That 20-year memory came back during the 2023 session, he said. 

“I remember, when the Legislature was dealing with the bill moving it to 30 days, thinking, ‘I seem to remember that that doesn’t work,’” Nelson said. “But they went ahead and did it anyway.”