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AGO 1992 No. 12 - June 29, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

SECRETARY OF STATE--ELECTIONS--DISTRICTS--BOUNDARIES--LEGISLATORS--REDISTRICTING--Boundaries for Election for Unexpired Term of Newly Redistricted Legislative District

When the boundaries of a legislative district for the Office of State Senate have been changed by redistricting, a special election for the remainder of the existing senate term should be conducted in the newly redistricted senate district.  Candidates for that election must be residents of the new district as required by RCW 42.04.020.

                                                                   * * * * * * * * * *

                                                                   June 29, 1992

The HonorableRalph Munro
Secretary of State
Post Office Box 40220
Olympia, Washington  98504-0220

                                                                                                                 Cite as:  AGO 1992 No. 12

Dear Secretary Munro:

            By letter previously acknowledged, you have asked our opinion on a question which we paraphrase as follows:

            Should the election for the unexpired term of senator from the 13th legislative district be conducted with reference to the newly redrawn 13th district or the previously existing 13th district?

We answer that the special election for the remainder of the existing senate term should be conducted in the newly redistricted 13th legislative district.

                                                                    ANALYSIS

            Senator Frank "Tub" Hansen was reelected in the 13th legislative district in 1990 for a four-year term.  At that time, the district consisted of parts of Adams, Grant, Kittitas, and Yakima counties.  The 1992 redistricting plan adjusted the boundaries of the 13th district essentially removing an area in Adams county and adding three significant areas in Yakima, Kittitas, and Benton counties.  Following Senator Hansen's death, his widow was appointed to fill the senate vacancy.[1]  The election statutes require that an election be conducted this fall for the remaining portion of the four-year term for that office.  Since you are the election officer who is to receive filings for the unexpired portion of this senate office, you need to know which district boundaries are to be used for that election.

            The Washington State Constitution establishes a state senate composed of members elected from single member districts to staggered four-year terms.  Const. art. 2, § 6.  The constitution also requires legislative redistricting following each federal census.  Const. art. 2, § 43(6).  The redrawing of new legislative districts to account for adjustments in population is to be completed by the Redistricting Commission no later than January 1 of the following year ending in two.  It is clearly contemplated that the general elections commencing with that year will use those districts.  Id.

            The redistricting plan did not purport to truncate the terms of office of senators elected two years previously.  Under the plan such holdover senators are entitled to complete their four- year terms, even though the boundaries of their districts may have changed.  This means that the senate convening in January 1993, will be composed approximately of half being senators elected from old districts in 1990, and the other half being elected from the new districts in 1992.  This practice has been approved by federal and state courts, as an unavoidable consequence of reapportionment.  Mader v. Crowell, 498 F. Supp. 226, 231 (M.D. Tenn. 1980), vacated on other grounds, 444 U.S. 505 (1980);In Re Apportionment of the Colorado General Assembly, 647 P.2d 191, 198-99 (Colo. 1982).

            When a vacancy occurs in a partisan elective office at least four weeks prior to a primary election, there is to be an election for the remainder of the term at the general election.  RCW 42.12.040.  The winner of that election then serves for the remainder of the unexpired term.  RCW 42.12.030.

            Your question raises the issue of what is the area in which the election is to be held for the unexpired term.  The language of article 2, section 15 of the Washington Constitution does not expressly answer that question.  Our prior opinion (AGO 1981 No. 6), based upon section 67, chapter 288, Laws of 1981, concluded that although the appointee to fill a senate vacancy must be from the "old" district, an individual elected to serve the balance of the term must be from the new district. 

            The Legislature expressed a preference for resolving your question in the Reapportionment Act following the 1980 census.  The Legislature enacted RCW 44.07B.860,[2]  which provided that should the office of any legislator become vacant prior to the next election, "the appropriate election officers shall provide for corresponding elections, at the next general election, in the newly created districts to which the vacating senators or representatives were assigned."  (Emphasis added.)  We relied on that provision in AGO 1981 No. 6 to conclude that "at the point of election of successors, the old terms end and new 'unexpired' terms begin, based on the new legislative districts established by the new redistricting law."  AGO 1981 No. 6, at 5.

            We are mindful that the new redistricting is not based on RCW 44.07B, but rather on the actions of the Redistricting Commission.  RCW 44.05.  Neither RCW 44.07B.860 nor our previous opinion, based on that statute, dictate this conclusion as that statute does not govern redistricting under the new Redistricting Act.  SeeSnyder v. Munro, 106 Wn.2d 380, 388, 721 P.2d 962 (1986).  Both, however, present a recent historical context with which to view your inquiry.

            Past practice supports applying that prior conclusion on the present situation.  In 1972, a three-judge United States District Court entered a decision adopting its own redistricting plan based on the 1970 census.  Prince v. Kramer, Civil No. 9668 (W.D. Wash. April 21, 1972),reprinted as Appendix to RCW 44.07B (1983).[3]  Under that redistricting plan, the court allowed holdover senators to complete their terms "[n]ot deeming it necessary for the 'equal protection' of the people of the State of Washington to terminate the terms of these hold-over incumbents prematurely".  Id. at 235.

            The court also noted that, like the present situation, one holdover senator had died and been replaced by an appointee.  The position was therefore scheduled for an election for the remaining two years of the unexpired term.  Id.  The court ordered that this election be conducted within the new district "as created by this Order."  Id. at 236.  The court further ordered

            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.

Id.(emphasis added).  This pattern of past practice therefore supports the conclusion that an election to an unexpired term of a holdover senator should be based on the new, rather than old, district.

            The constitutionally defined qualifications of legislators also support the conclusion that a senator elected to fill the unexpired term must be drawn from the new district.  The constitution states, "[n]o person shall be eligible to the legislature who shall not be . . . a qualified voter in the district for which he is chosen."  Const. art. 2, § 7.  If a redistricting plan is "operative" when an elected term commences, as we concluded in AGO 65-66 No. 14, it follows that "the district for which the legislator is chosen" would mean the new district.

            The reasons given by the federal courts when redistricting for approving of holdover senators do not apply where the voters have an opportunity to speak at a vacancy election.  The courts have reasoned that maintaining holdover senators is an unavoidable consequence of reapportionment.  Mader, 498 F. Supp. at 231.  However, when the election laws require an election to fill the balance of a term of office, there is an opportunity to conduct an election in the new district.

            Our conclusion is that the election in November 1992 for the balance of the remaining term of senate member from the 13th legislative district must be held with reference to the 1992 redistricted 13th district.[4]  It therefore follows that candidates for that election must be residents of that district as is required by RCW 42.04.020.

            We believe this conclusion is supported by prior Washington practice.

            We trust that the foregoing will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    JEFFREY T.  EVEN
                                    Assistant Attorney General

JTE:aj


    [1]AGO 1981 No. 6 and AGO 65-66 No. 14 have previously concluded that the appointed successor must reside in the "old" district.

    [2]Laws of 1981, ch. 288, § 67, p. 1214.

    [3]Although an unpublished decision, the inclusion of the opinion by the Legislature as an appendix to its Redistricting Act following the 1980 census indicates that the Legislature regards it as having some value as a guide to Washington redistricting practice.

    [4]The Colorado Supreme Court reached a contrary conclusion in Kallenberger v. Buchanan, 649 P.2d 314 (Colo. 1982), but we believe Washington's law to be different.

     A Colorado statute required that a vacancy be filled from the district from which the former senator had been elected.  Id. at 316.  Washington's vacancy election statute is not worded in that way.  Washington's comparable statute simply states that "a successor shall be elected to that office at that general election."  RCW 42.12.040.

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