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December 27, 1972
Honorable James A. Andersen
State Senator, 48th District
3008 98th N.E.
Bellevue, Washington 98004
Cite as: AGLO 1972 No. 95 (not official)
This is written in response to your request for our opinion on a question regarding the status of "holdover" state senators under the legislative redistricting order in Prince v. Kramer, et al., which was entered by the United States District Court, W.D., Wash., on April 21, 1972, and affirmed by the Supreme Court on October 10, 1972.
By this order, copy enclosed, the district court directed that in the absence of constitutionally valid congressional and legislative redistricting plans theretofore enacted through the legislative processes of the state of Washington, all primary, general and special elections during 1972 and thereafter for the offices of United States Congressmen and State Senators and Representatives are to be conducted on the basis of seven new congressional districts and 49 new legislative districts created and described thereby. However, concluding that it would be unduly disruptive of the electoral procedures provided for in the Washington Constitution for it to require all of the 49 legislative districts to elect new senators at the 1972 election ‑ without regard to the continuing incumbency of some 23 senators now holding office for four-year terms to which they were elected in 1970 ‑ the court held as follows with respect to this issue:
"(d) Consistent with the foregoing and with our interlocutory Order of August 19, 1971 (declaring the provisions of Chapter 6, Laws of 1965, to be unconstitutional), we hold and direct that those 'hold-over' state senators now serving four-year terms to which they were elected in 1970 may continue to serve out their full terms in the newly created legislative districts, the numbers of which appear after the senators' names, to wit:
[[Orig. Op. Page 2]]
"Senator Guess 6
Senator Twigg 7
Senator Canfield 8
Senator Washington 13
Senator Woodall 15
Senator Metcalf 21
Senator Gardiner 26
Senator Stender 30
Senator Herr 31
Senator Francis 32
Senator Conner 33
Senator Greive 34
Senator Ridder 35
Senator Murray 36
Senator Fleming 37
Senator Mardesich 38
Senator Atwood 42
Senator Wetzel [sic] 43
Senator Peterson 44
Senator Dore 45
Senator Scott 46
Senator Durkan 47
Senator Andersen 48 "
In addition, the court directed:
". . . that if any of the above senators now serving four-year terms to which they were elected in 1970 should, for any reason, vacate their offices prior to the commencement of filings for legislative offices on July 31, 1972, the defendant elections officers shall provide for corresponding elections of senators, for two-year terms only, in the newly created districts to which they are assigned."
This last-quoted portion of the order, of course, clearly covers the situation which would have arisen prior to the commencement of filings for legislative office on July 31, 1972, if any of these 23 senators had vacated their offices during that period. It does not, however, address itself to the manner of filling their positions in the event that at some time between now and the expiration of their terms in January of 1975, one of these "holdover" senators should resign or otherwise vacate his office. Accordingly, you have asked for our opinion on this point.
Essentially this same question was presented to this office in March of 1965, following the enactment of the prior legislative redistricting plan which was contained in chapter 6, Laws of 1965. In AGO 1965-66 No. 14 [[to Daniel J. Evans, Governor, March 16, 1965]], copy enclosed, we responded [[Orig. Op. Page 3]] by first pointing to the following language of Article II, § 15 of our state Constitution:
"Such vacancies as may occur in either house of the legislature . . . shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs: Provided, That the person appointed to fill the vacancy must be from the same legislative district, . . . and the same political party as the legislator . . . whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, . . . and the person so appointed shall hold office until his successor is elected at the next general election, and shall have qualified: Provided, That in case of a vacancy occurring in the office of joint senator, or joint representative, the vacancy shall be filled from a list of three nominees selected by the state central committee, by appointment by the joint action of the boards of county commissioners of the counties composing the joint senatorial or joint representative district, the person appointed to fill the vacancy must be from the same legislative district and of the same political party as the legislator whose office has been vacated, . . ."
We then said:
"In so far as legislative vacancies are concerned, it is to be seen that this constitutional provision contains, basically, two requirements:
"(1) That the person appointed to fill the vacancy must be from the same political party as the legislator whose office has been vacated; and
"(2) That the person appointed to fill the vacancy must be from the same legislative district as the legislator whose office has been vacated."
Then, speaking of these two requirements, we said:
"The meaning of the first of these requirements is, presumably, quite clear. If the legislator whose office has been vacated was a member of the Republican party, his replacement must also be a Republican. If he was a member of the Democratic party, his replacement must be a Democrat.
[[Orig. Op. Page 4]]
"As for the second requirement ‑ that the replacement must come from the same legislative district as did the legislator whose office has been vacated ‑ it is our opinion that this means the person appointed to fill the vacancy for the remainder of the unexpired term must reside somewhere within the geographical area which comprised the legislative district from which his predecessor was elected or appointed. We believe this to be true without regard to the fact that between the beginning and end of the term of office of the legislator whose office has been vacated, a new redistricting plan is adopted; i.e., in, the instant case, chapter 6, Laws of 1965.
"The point is simply that though the new redistricting plan may be immediately effective, it does not become operative until the commencement of new terms of office to be filled by elections as provided therein. Consequently in the meantime any vacancy occurring in either house of the legislature is a vacancy as to the now existing term of office‑-to be filled for the remainder of the unexpired term in the manner aforesaid." (Double emphasis supplied)
We believe that this conclusion is equally applicable to the current situation, absent anything to the contrary in the federal district court's order. Even though the "new" redistricting plan, in this case, was promulgated by the court rather than being enacted by the legislature as in 1965, it will be seen that in both instances the body responsible for the adoption of the plan determined, in the exercise of its sound discretion, to allow the then existing "holdover" incumbent state senators to serve out the full four year terms to which they had been elected under the previous redistricting plan. Thus, in effect, both tribunals (the legislature and the court) determined that their respective new plans would not become operative with respect to any of the newly defined districts until the commencement of new terms of office to be filled by the elections therein provided for ‑ except (in the present case) for the limited situation covered by the last-quoted subparagraph of the court's order, supra, regarding vacancies occurring before July 31, 1972. Otherwise (in this case) the first elections of senators from the 23 districts currently occupied by "holdovers" will not be held until ". . . the first Tuesday after the first Monday in November, 1974, . . .", in accordance with paragraph 5 (c) of the order. Consequently, in the meantime it is our opinion that any vacancy occurring in any of these positions is a vacancy as to the now existing term of office. Such a vacancy is thus to be filled for the remainder of the unexpired term by the appointment of a [[Orig. Op. Page 5]] successor from the "old" district from which the vacating senator was elected, in the manner provided for by Article II, § 15 (Amendment 52) of our state Constitution, supra.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General