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April 19, 1972
Honorable A. Ludlow Kramer
Secretary of State
Olympia, Washington 98504 Cite as: AGLO 1972 No. 24 (not official)
ATTN: Donald F. Whiting
Assistant Supervisor of Elections
This is in response to your recent request for our opinion as to the legal rules regarding the impact upon voting residence which results from a voter's absence from his home, and for suggested revisions of present voter registration forms in accordance with those rules.
As you have noted, Article VI, § 4, of the Washington State Constitution provides as follows:
"For the purpose of voting and eligibility to office no person shall be deemed to have gained a residence by reason of his presence or lost it by reason of his absence, while in the civil or military service of the state or of the United States, nor while a student at any institution of learning, nor while kept at public expense at any poor-house or other asylum, nor while confined in public prison, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas."
In AGO 1971, No. 10 [[to Arthur C. Brown, State Representative on March 2, 1971]], copy enclosed, we recently had occasion to review this provision and to affirm an earlier opinion.1/ In the course of this 1971 opinion, we noted that constitutional provisions like Article VI, § 4, do not [[Orig. Op. Page 2]] prevent the acquisition of a new residence at a new location even though the individual in question remains in the special status (i.e., student, soldier, etc.) therein designated. Instead, such constitutional provisions merely reflect the common law relative to residence‑-as we will next explain.
It has long been an accepted rule that the term "residence" as used in election laws is synonymous with domicile. State v. Savre, 129 Iowa 122, 105 N.W. 387 (1905); Erwin v. Benton, 120 Ky. 536, 87 S.W. 291 (1905); Howard v. Skinner, 87 Md. 556, 40 A. 379 (1898) [[40 Atl. 379]]; Warren v. Board of Registration, 72 Mich. 398, 40 N.W. 553; Berry v. Wilcox, 44 Neb. 82, 62 N.W. 249 (1888); People ex rel. Boyer v. Teague, 106 N.C. 576, 11 S.E. 665; Fry's Electric Case, 71 Pa. 302; Brown v. Hows, 163 Tenn. 178, 42 S.W. 2d 210, cf., Thomas v. Thomas, 58 Wn.2d 377, 363 P.2d 107 (1961), and State v. Superior Court of King County, 11 Wash. 111, 39 P.2d 818 (1895).
The concept of domicile has been recently explored and aptly summarized in the case of Stevens v. Stevens, 4 Wn.App. 79, 82 (1971), as follows:
"To establish a domicile requires the physical presence at the place of intended domicile accompanied by the intention of making that place one's home. Sasse v. Sasse, 41 Wn.2d 363, 249 P.2d 380 (1952); In re Estate of Lassin, 33 Wn.2d 163, 204 P.2d 1071 (1949); McCord v. Rosene, 39 Wash. 1, 80 P. 793 (1905); White v. Tennant, 31 W.Va. 790, 8 S.E. 596 (1888). A domicile, once established, is not destroyed by a temporary absence no matter how long continued. Sasse v. Sasse, supra; Marcus v. Marcus, 3 Wn.App. 370, 475 P.2d 571 (1970); White v. Tennant, supra. Once acquired, domicile is presumed to continue until changed and the change must be shown by substantial evidence."
This summarization comports with another traditional definition of residence for the purpose of voting, which is the "place where he [the voter] is habitually present, and to which, when he departs, he intends to return." See, 25 Am.Jur. 2d, Elections, § 66. Moreover, while the rule is that bodily presence is essential in effecting a domicile in the first instance, it is not essential to its continuance. State v. Savre, supra; White v. Slama, 89 Neb. 65, 130 N.W. 978 (1911). However, the intent to return to the former residence must not be doubtful, vague or equivocal; there must be a definite intention. 25 Am.Jur. 2d, Elections, § 67.
[[Orig. Op. Page 3]]
Viewed in this light, the provision of Article VI, § 4, supra, may be seen to mirror the common law doctrine. What the framers of the constitution obviously did was to list those classes of employment and special status which most frequently require prolonged absence from one's established residence or home in order to expressly insure that those individuals occupying such statuses would not be denied the ability to maintain their legal voting residence at their real home. However, they did not, by this list, intend to exclude others from the common law rules.
This construction comports with the rule of construction that wherever possible a court will construe a statute or constitutional provision so as to render it constitutionally valid. In Re Flynn, 52 Wn.2d 589, 328 P.2d 150 (1958); Household Finance Corporation v. State, 40 Wn.2d 451, 244 P.2d 260 (1952); State v. Moore, 79 Wn.2d 51 (1971); State ex rel. Morgan v. Kinnear, 80 Wn.2d 400, P.2d [[494 P.2d 1362]](1972). To construe Article VI, § 4, as granting special rights to certain classes of people, without granting the same rights to others in similar circumstances, would arguably be to construe the provision as violative of the 14th Amendment to the United States Constitution.2/
It is important to note in this regard that the right to vote has been described "as a fundamental political right, because preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). In a great number of recent cases, the United States Supreme Court has made it clear that each state citizen has a constitutionally protected right to participate in the election process on an equal basis with other individuals within the state. See, e.g., [[Orig. Op. Page 4]] Evans v. Cornman, 398 U.S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667 (1966); Carrington v. Rash, 380 U.S. 89, 93-94 (1965); Reynolds v. Sims, 377 U.S. 533, 562 (1964); Oregon v. Mitchell, 400 U.S. 112 (1970).
In addition, it is clear that a state's restrictions on the franchise and other essential personal rights are now viewed against a more onerous test of their validity than are such restrictions involving other interests and rights. Compare, Kramer v. Union Free School District, supra, and Skinner v. Oklahoma, 316 U.S. 535 (1942), with Williamson v. Lee Optical Company, 348 U.S. 483 (1955).
One last important matter that should be noted is that a law protecting the established residences of some individuals ‑-while failing to protect the right of others who are temporarily absent from their established residences under similar circumstances‑-might be regarded as a penalty on the right to travel. The United States Supreme Court has recognized the right to travel as a constitutional right. United States v. Guest, 383 U.S. 745, 758 (1966); Shapiro v. Thompson, 394 U.S. 618, 629-631, 634 (1969); Wyman v. Bowens, 397 U.S. 49 (1970). In addition, the Supreme Court has recently indicated that abridgements to the right may exist in the absence of actual deterrence. All that need be shown is that some individuals are penalized for exercising their right to travel‑-even though they are not actually deterred from traveling. See, Dunn v. Blumstein, U.S. , 40 U.S. L. Wk. 4269 (March 21, 1972) [[405 U.S. 330, 31 L.Ed. 2d 274, 92 S.Ct. 995]]. Accordingly, if we were to now conclude that the protections of Article VI, § 4, extend only to certain individuals to the exclusion of others similarly situated, we would be recognizing a classification which penalizes some persons for exercising their right to travel by causing them to lose their ability to vote at their established residence. This would seem to be an unconstitutional classification.
Therefore, the construction of Article VI, § 4, that preserves its constitutionality is that the provision merely reflects the common law. The constitution lists various classifications of persons, not in an attempt to exclude others from the benefit of the common law rule, but merely to specify those classes of individuals who most frequently move under circumstances in which it would be unfair to remove their ability to vote at their former location.
[[Orig. Op. Page 5]]
For these reasons, we think for example, that both a student who formerly established residence in Olympia and now lives at and attends the University of Washington and a construction worker who formerly established residence in Olympia and is now working and living on a construction project at the University of Washington should be treated in precisely the same manner. If neither of them have the intention to make Seattle their legal residence, then both should be regarded as having retained their legal residence in Olympia, for the purposes of voting.
It is our understanding that you are presently in the process of revising the voter registration forms used in this state in view of the recent United States Supreme Court decision in Dunn v. Blumstein, supra, relating to durational residency requirements. That case declared Tennessee's one‑year (in the state) and 90-day (in the county) residency requirements unconstitutional. Of course this, in effect, invalidated Washington's comparable requirements as well.3/ See, Article VI, § 1, of the Washington Constitution. As this leaves only the requirement that persons seeking to vote have lived "in the city, town, ward, or precinct thirty days immediately preceding the election at which they offer to vote", and since the registration books are closed against original registration 30 days prior to an election (RCW 29.07.160), one may now register the day he moves to a particular location if that day is more than 30 days prior to the next election. This, of course, occasions radical changes in past election procedures. In the course of revising the registration forms to conform to the dictates of this Supreme Court ruling, you will wish to include therein provisions consistent with the views we have expressed in this opinion. We would therefore suggest the removal of all present questions relative to residence and the substitution of questions reading substantially as follows:
(1) Are you now physically residing at the address given which you regard as your legal residence? Yes No
(2) If you are now temporarily absent from the address given, have you consistently and continuously regarded it as your legal residence while absent? Yes No
[[Orig. Op. Page 6]]
Perhaps for simplicity, these two questions could be combined as follows:
Are you now or have you been living at the address given and since you have lived there, have you consistently intended that it be your legal residence? Yes No
We trust we have been of some assistance.
Very truly yours,
FOR THE ATTORNEY GENERAL
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/AGO 1945-46, Page 1087 [[1945-46 OAG 1087 to Secretary of State on October 15, 1946]].
2/Section 1, Amendment 14, to the United States Constitution provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
3/See also, Moen, et al. v. Erlandson, et al., King County Cause No. 742364 (October 1, 1971).