PIERRE, S.D. (KELO) — The situation of a South Dakota lawmaker who moved from Miller to the Sioux Falls area last summer for a new job has raised questions about where a member of the Legislature must reside in order to serve.
State law requires only that a candidate for the Legislature must be a registered voter in the legislative district when the candidacy papers are filed. Republican Sen. Bryan Breitling met that requirement last year.
Since then, he’s accepted a different job and now lives in the Dell Rapids area. He told KELOLAND News he will continue to represent the Miller legislative district for the remainder of the current two-year term. He also said that he is undecided whether he will seek re-election next year from District 23, which includes Miller and covers all or parts of eight north-central counties.
Breitling said that he still considers himself a resident of Miller, where he and his wife started renting a home last October after selling their larger house there, and that his voter registration remains in Hand County.
He said his situation really isn’t that complicated.
“I have a residence in District 23, (where) I have lived for many years, Bowdle 1995 to 2001 and Miller 2001 to present. I sold two houses last year and bought one. I own property in two legislative districts and am sleeping in both of my houses and residences. Some people have cabins on the lake. Others have houses in the Black Hills; others also have houses where their kids live. I am doing the same, but also still working,” Breitling told KELOLAND News.
“I am registered to vote in District 23, and have been since 1996. I was elected to District 23 Senate and am finishing the term that I was elected to. This complies with all laws. It is pretty straight forward. My personal life has changed, as indicated by my nonpolitical employment position that has changed, but that doesn’t mean that I am still not complying with all the requirements of the seat I was elected to,” he continued.
Complicating the situation, however, is that the house Breitling purchased last summer in rural Dell Rapids is classified by Minnehaha County for property tax purposes as owner-occupied. That means the house, like many thousands of other owner-occupied residences throughout South Dakota, is taxed at lower levies than other non-agricultural property.
State law says, “A person may only have one dwelling, which is the person’s principal place of residence as defined in § 12-1-4, classified as an owner-occupied single-family dwelling.” The related state law, regarding criteria for voter registration, says, “For the purposes of this title, the term, residence, means the place in which a person has fixed his or her habitation and to which the person, whenever absent, intends to return.”
When he filed his candidacy papers for re-election on February 17, 2022, with the South Dakota Secretary of State, he was still a resident of Hand County, as required by state law. By receiving owner-occupied tax status for the Dell Rapids home, however, Breitling — because the owner-occupied law says the dwelling must be “the person’s principal place of residence” — currently appears to be a resident of Minnehaha County.
State law doesn’t appear to address what happens when a legislator moves outside his or her district. Nor is Breitling the first South Dakota office-holder who has faced questions about residency. In 2004, for example, then-U.S. Sen. Tom Daschle, a Democrat, claimed owner-occupied tax benefits in both Aberdeen and in Washington, D.C.
Republican Sen. Randy Deibert worked on legislation this year regarding residency of voters. Asked about Breitling’s situation, Deibert said, “It’s a really good question we may need to look at during legislative session.”
Deibert has experience with a somewhat similar situation when he ran for the Senate last year. Former lawmaker John Teupel of Spearfish filed candidacy papers to run against Deibert in the Republican primary.
The South Dakota Secretary of State disqualified Teupel, however, after the validity of his petition was challenged. Teupel’s petition was found to be a few short of the minimum 50 needed from registered voters in their legislative district.
County auditors typically check the signatures filed for candidates at the county level. The Secretary of State is responsible for legislative candidates, but checks signatures on their petitions only when someone files a challenge.
Republican Sen. Lee Schoenbeck was a co-sponsor of Deibert’s voter-residency legislation, which the governor signed into law.
“Voters and legislators can have more than one residence. They can only vote at one, and they can only serve at one,” Schoenbeck said. “We already have a recognized solution for any situation that the voters think is an abuse – elections. We don’t need any more laws.” He added, “Through the years I can recall several legislators that moved from their districts, but none that have worked as hard as Senator Breitling.”
Another co-sponsor on Deibert’s legislation was Democrat Rep. Linda Duba. She said the new law will require people to spend more time in South Dakota before registering to vote. Currently state law only requires that a person spend 24 hours in South Dakota before registering to vote; starting on July 1, people will need to spend at least 30 days in South Dakota prior to registering.
Said Duba, “The bill I co-sponsored ensures a person has a permanent residence for at least 30 days. I have almost 10,000 constituents who are signed up with two mailbox services in my district. They only need to show up for 24 hours once a year.”
She didn’t want to comment on Senator Breitling’s situation. “I’m sure it is being addressed internally,” she said.
Here is the timeline of Sen. Breitling’s situation:
February 17, 2022 — Breitling, administrator at Avera Hand County Memorial Hospital in Miller, filed candidacy papers to seek election to a second term as senator for District 23.
March 29, 2022 — House Speaker Spencer Gosch of Glenham filed candidacy papers to challenge Breitling for the Republican nomination in District 23.
May 2022 — Breitling bought a house in rural Dell Rapids.
June 7, 2022 — Breitling defeated Gosch 3,019-2,552 in the Republican primary. Breitling won Brown, Edmunds, Faulk, Hand and Potter counties, while Gosch won Campbell, McPherson and Walworth counties.
Late June 2022 — Breitling received an offer from Avera to be a regional administrator with five hospitals reporting to him through a leadership structure, including Miller, Milbank, Dell Rapids, Flandreau and Pipestone, along with additional daily responsibilities in Dell Rapids and Flandreau.
July 2022 — Breitling began duties as a regional administrator for Avera. That month, Breitling also sold a house he owned in Sioux Falls where the family’s sons stayed during their time in college.
August 2, 2022 — Legal deadline for candidates to withdraw from November general election ballot.
August 19, 2022 — Breitling closed sale of the house in Miller where he and his wife had lived.
September 2022 — Possession of the house in Miller transferred from Breitlings to the new owners.
October 2022 — Breitling leased a rental house in Miller for his wife and himself.
November 8, 2022 — Breitling, facing no opponent in the general election, won a second term to District 23 Senate seat.
January 10, 2023 — Regular session of the Legislature opened. Breitling began serving his second term.