State lawmakers are working to reverse an election law they passed last year.
The law currently in place requires that someone live in a South Dakota dwelling for 30 days to establish residency to vote.
Lawmakers want to change a provision of the state’s voting requirements to ensure it does not violate the Voting Rights Act. That’s because the new 30-day residency requirement could prohibit some from voting in this year’s elections, including full-time RV travelers and state residents without a permanent address.
“We could possibly be looking at litigation that would commence soon," said Republican state Sen. David Wheeler, who says the current law conflicts with U.S. Supreme Court case law and federal voting laws.
“That could affect the June primary. It could affect the fall election," Wheeler added. "We’d rather not have that.”
The potential for legal action is prompting Wheeler and other lawmakers to revert back to residency requirements in place before last year’s change. That requires someone stay overnight in the state to be eligible for residency.
However, the new law would need an emergency clause to ensure it covers this year’s election cycle.
Wheeler also said the state can’t prevent homeless people from voting because they don’t have a permanent physical dwelling.
“We want to make sure the rules are clear and well understood and that there’s not litigation involved,” Wheeler said.
Others say the state's durational residency requirements affect people who travel for work.
“South Dakota’s current 30-day durational residency requirement for voter registration is in conflict with Supreme Court precedent and federal voting laws," said Samantha Chapman, advocacy manager for the ACLU South Dakota. “They pose an undue burden on voters exercising their right to register to vote and participate in elections.”
Lawmakers passed the current 30-day residency requirement last year following concerns about out-of-state voters weighing in on state elections.
Establishing residency has created an entire industry sometimes referred to as private mail forwarding businesses.
“They will receive mail for people for a variety of reasons,” said Justin Smith, a lobbyist for the Association of South Dakota Mail Forwarders. “Sometimes the person has a house near the PMB location, but for anonymity purposes, or what not, they will actually get that.”
For a fee, Smith aid your mail is sent from a PMB – or personal mailbox – to a location of your choice.
“So, if they’re a permanent traveler and they RV around the country, they can get their mail at another location.”
And that’s how thousands of people are now legally registered voters in South Dakota.
Smith said some mail forwarding service clients can face challenges when they register to vote. At least one county auditor is rejecting new voter registration applications from mail forwarding service locations.
For an annual fee starting at $189, Dakota Post offers everything you need to become a resident of South Dakota. Its website says with a one-night stay using the company’s Sioux Falls address, you have a receipt and other paperwork that’s required to get a driver’s license through the Department of Public Safety.
Dakota Post is one of at least six mail-forwarding services where the South Dakota Secretary of State tracks voter registration. Data from that office shows about 25,000 people use the state’s mail forwarding services as their residence address, which allows them to register to vote. Election officials say voters from the mail forwarding addresses typically only vote in general elections.
One of those voters is retired NFL referee Ed Hochuli.
For those who watched NFL football from 1990 to 2017, you might remember him. Hochuli was known for his muscular physique. Were it not for his black and white striped shirt, you might think he was an NFL player.
Hochuli, who was born in 1950, has spent most of his life residing in the American southwest, including high school, college and his other career as a lawyer.
Hochuli is a legally registered Republican voter at 3916 N. Potsdam Ave. in Sioux Falls. That’s the address for Dakota Post and also the registered address for around 5,000 other people.
Hochuli declined to comment for this story and said he is a South Dakota resident. He has voted legally in the last two statewide elections.
Wheeler and other state lawmakers admit South Dakota residency can be about more than just voting. People can seek out residency to take advantage of lower tax rates – or no state taxes in some cases. There can also be significant savings on vehicle registration and other services.
Republican state Sen. Lee Schoenbeck mentioned the practice during a legislative hearing on the state’s residency law.
“Most of them are probably happy we have no income tax," Schoenbeck said. "If they start playing around and get licenses or residence somewhere else, they’re going to have a taxing authority interested in them, more than a secretary of state’s office looking after them."
As for voting in local elections, Republican Sen. Wheeler and other lawmakers say they're interested in ensuring that people who vote in South Dakota elections have a vested interest in the state and local community.
“For president, everyone should be able to vote for that,” Wheeler said. “But are you going to vote for our local legislators, our local school board members, our local city councilors. It becomes a question of, really, how tied are you to our community? Are you really engaged with the community and what people around here are dealing with?”
As lawmakers consider revisions to state voting law, there’s a clock ticking. They’ll need to include special language to make sure the governor’s signature activates the new law before this year’s election cycle begins.
