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AGO 1966 No. 72 - February 15, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


ELECTIONS ‑- HOUSE OF REPRESENTATIVES ‑- LEGISLATIVE POSITIONS ‑- MEMBERS ‑- DESIGNATION BY ELECTION OFFICERS ‑- AUTHORITY IN CONNECTION WITH 1966 AND SUBSEQUENT ELECTIONS.

(1) In designating positions to be filled in the house of representatives from multimember districts at the 1966 general election, the secretary of state or a county auditor, as the case may be, is required, under § 1, chapter 52, Laws of 1965, to "designate the positions to be filled by consecutive number commencing with the 'No. 1'"; however it is neither necessary nor proper for such election officers to additionally designate in the notice of election or elsewhere "who these positions are now held by" since no incumbent representatives can be correctly described as presently holding office in any of the fifty-six new legislative districts created by the reapportionment act of 1965 (chapter 6, Laws of 1965)‑-nor are any of these newly established positions within multimember legislative districts in fact now held by anyone.

(2) In legislative elections subsequent to 1966, the additional designation of "who the position is now held by" will not be required but will be legally proper since incumbent members of the house of representatives will then in fact have previously been elected from legislativedistricts and positions established by the 1965 legislature (until such time as there is enacted another new redistricting law).

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                                                                February 15, 1966

Honorable Gary Grant
State Representative, 47th District
Labor Temple
Seattle, Washington

                                                                                                                Cite as:  AGO 65-66 No. 72

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on questions which we paraphrase as follows:

            (1) In designating positions to be filled in the state house of representatives from multimember districts at the 1966 general election, is it necessary or proper under § 1, chapter 52, Laws of 1965, for the secretary of state or a county auditor, as the case may be, additionally to designate in the  [[Orig. Op. Page 2]] notice of election or elsewhere "who the position is now held by"?

            (2) In the event of a negative answer to question (1), would such an additional designation nevertheless be proper in the case of legislative electionssubsequent to 1966?

            We answer question (1) in the negative, and question (2) in the manner set forth in our analysis.

                                                                     ANALYSIS

            The basic purpose of chapter 52, Laws of 1965, is to establish a procedure under which candidates for the office of state representative from multimember legislative districts1/ will henceforth file and run from numerically designated positions.  The measure was originally introduced in the 1965 legislative session as House Bill No. 51.

            In its original form, § 1 of House Bill No. 51 provided as follows:

            "Not less than ten days before the time for filing declarations of candidacy for the office of state representative in representative districts embracing more than one county, the secretary of state shall in each case designate,by public lot, the positions to be filled by consecutive number commencing with the number, 'No. 1'.  The county auditor shall do likewise for state representative positions in counties wherein the representative districts are confined to the whole or part of a single county.

             [[Orig. Op. Page 3]]

            "The state representative position so designated shall be dealt with as separate offices for all election purposes."  (Emphasis supplied.)

            Section 2 of the original bill provided, in material part, for arrangement of the election ballot in substantially the following form:

            See Illustration.

            Lastly, in its original form, House Bill No. 51 contained a third section reading as follows:

            "Incumbent state representatives seeking re‑election in their own districts, must file for the same position number as designated by the secretary of state."

            However, this third section was eliminated by amendment to the bill and does not appear in the statute as enacted.  In addition, the provision contained in the original § 1  [[Orig. Op. Page 4]] relating to the designation of positions "by public lot," which we have above underscored, was also eliminated.2/   Thus, § 1, chapter 52, Laws of 1965, as finally enacted, provides, simply, as follows:

            "Not less than ten days before the time for filing declarations of candidacy for the office of state representative in representative districts embracing more than one county, the secretary of state shall in each casedesignate the positions to be filled by consecutive number commencing with the number, 'No. 1'  The county auditor shall do likewise for state representative  [[Orig. Op. Page 5]] positions in counties wherein the representative districts are confined to the whole or part of a single county.

            "The state representative position so designated shall be dealt with as separate offices for all election purposes.  The provisions of this section shall not apply to those representative districts assigned a single state representative position."  (Emphasis supplied.)

            Question (1):

            Your first question relates to the procedure to be followed in preparing notices of election designating representative positions to be filled at the 1966 general election.  You ask whether, in addition to designating the positions to be filled "by consecutive number commencing with the number, 'No. 1'," it is necessary or proper for the secretary of state or a county auditor to designate the incumbent legislator from each position; i.e., "who the position is now held by."

            The answer to this question is in the negative simply because none of the house of representatives' positions to be filled at the 1966 general electionare presently held by anyone.  This is so for two reasons:

            In the first place, all positions in the house of representatives to be filled by the 1966 election will be from newly aligned and reapportioned legislative districts established pursuant to chapter 6, Laws of 1965.3/   See, in particular, § 54 thereof, which provides as follows:

             [[Orig. Op. Page 6]]

            "The representatives provided for in this act shall be elected from the legislative districtscreated by this act at the general election to be held on the first Tuesday after the first Monday in November, 1966, and every two years thereafter, each for a term of two years."  (Emphasis supplied.)

            While it may be anticipated that many incumbent state legislators from "old" legislative districts will seek reelection to the house of representatives in 1966, all such candidates will be seeking election to new legislative positions in newly-created legislative districts.  Therefore, incumbent legislators cannot be correctly described as now holding office in the "new" districtscreated by the 1965 redistricting act.

            Stated conversely, there simply will be no incumbents from presently existing legislative districts for the reason that the 1966 election willnot be from existing districts but rather will be from newly-created districts.  This phenomenon was succinctly recognized in AGO 65-66 No. 14 [[to Daniel J. Evans, Governor on March 16, 1965]],4/ dated March 16, 1965, to Governor Daniel J. Evans, in which (considering the question of filling vacancies in either house of the legislature during the period prior to the commencement of new legislative terms under chapter 6, Laws of 1965, supra) we said:

            "The point is simply that though the new redistricting plan may be immediatelyeffective, 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."

            Secondly, aside from the fact that all house members will be elected in 1966 from newly-created districts, they also will, by virtue of chapter 52, Laws of 1965,supra, itself, be elected to positions not presently in existence.  In this regard, § 1, chapter 52, Laws of 1965, provides, in  [[Orig. Op. Page 7]] pertinent part, as follows:

            "The state representative position so designated shall be dealt with as separate offices for all election purposes."

            Thus again, the positions established by chapter 52, Laws of 1965,supra, for this reason (as well as because of redistricting), cannot now be regarded as being held by anyone.

            Question (2):

            The situation in the case of legislative elections subsequent to 1966 ‑ until such time as the legislature is again reapportioned ‑ will, of course, be somewhat different.  There will during this period be incumbent members of the house of representatives from legislativedistricts and positions established by act of the 1965 legislature.5/   Accordingly, it will be factually possible for the responsible election officers then to provide information ‑ as part of an official notice of election or otherwise ‑ in regard to who each house of representatives' position "is now held by."

            We find no mandate in chapter 52, Laws of 1965, supra, that they do so ‑ or do so in any particular manner.  All that is required by this statute is that not less than ten days before time for filing declarations of candidacy for the house of representatives from multimember districts the responsible elections officers6/

            ". . . shall in each case designate the positions to be filled by consecutive number commencing with the number, 'No. 1.' . . ."

            In this connection we recognize that the drafters of chapter 52, Laws of 1965,supra, in its original form (House Bill No. 51) may quite possibly have intended that the appropriate elections officers, in designating representative  [[Orig. Op. Page 8]] positions, would additionally be required todesignate by lot who each position "is presently held by" ‑ with incumbent state representatives then being required to file for the particular position which they were thus designated to be holding.  However, it seems clear from the history of the bill as described at the outset that such was not the intent of the legislature which finally passed this measure.  Renoted for ease of reference, the original bill was amended before final passage in two material respects:

            (1) By deleting in its entirety § 3 of the bill which would have required incumbent representatives to file "for the same position number as designated by the secretary of state;" and

            (2) By removing the provision that position designations be accomplished "by public lot."

            Based upon the foregoing our specific answer to your second question ‑ relating tolegislative elections after 1966, and until the legislature is again reapportioned ‑ is as follows:

            (1) Chapter 52, Laws of 1965, supra, does not require the secretary of state or other elections officers to state in their official notices of election or otherwise the names of incumbents from the positions which are up for election; i.e., who each position "is now held by;" however,

            (2) Since it will be factually possible during this period to do so ‑ and since such information may be of interest both to potential candidates and to the general public ‑ we believe that it would be legally proper for the respective elections officers to state the name of the incumbent for each position in connection with designating position numbers.7/   To do so, of course, would be in line with longstanding practice in the case of other public officers who  [[Orig. Op. Page 9]] are presently electedby position to multimember tribunals or boards.8/

             We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Under the 1965 legislative redistricting act, chapter 6, Laws of 1965, there were created a total of 56 legislative districts.  In accordance with the federal court mandate in Thigpen, et al. v. Meyers, 211 F.Supp. 826, afm'd 378 U.S. 554 (1964), state representatives were apportioned to these districts on the basis of their populations. In this manner fourteen districts were allotted one representative each, forty-one districts were allotted two representatives each, and the remaining district was allotted three representatives.

2/Both of these amendments were recommended in the house of representatives.  At page 574 of the House Journal we find the following:

            "House Bill No. 51, by Representatives Uhlman, Garrett, Pritchard, Whetzel, Smith, and Olsen:

            "Requiring candidates for state representative to file by position numbers.

            House of Representatives, Olympia, Wash., February 19, 1965.

            "MR. SPEAKER:

            "We, a majority of your Committee on Constitution, Elections, and Reapportionment, to whom was referred House Bill No. 51, requiring candidates for state representative to file by position numbers, have had the same under consideration, and we respectfully report the same back to the House with the recommendation that it do pass with the following amendments:

            "On page 1, section 1, line 10, after 'designate' and before 'the positions' on line 11 strike ',by public lot,'

            "On page 1, section 1, line 17, after 'purposes,' insert 'The provisions of this section shall not apply to those representative districts assigned a single state representative position.'

            "On page 6, strike all of section 3.

            "In line 3 of the title after 'ding' and before 'to chapter' strike 'two new sections' and insert 'a new section'

            Gary Grant, Chairman, Hayes Elder, Vice Chairman.

            "We concur in this report:  R. Ted Bottiger, Frank B. Brouillet, Arlie U. DeJarnatt, Slade Gorton, Doris Johnson, William J. S. May, Mary Ellen McCaffree, Bob McDougall, Charles E. Newschwander, W. O. E. 'Bill' Radcliffe, Wesley C. Uhlman.

           . . ."

3/See, again, Footnote 1, supra.

4/Copy enclosed.

5/Respectively, chapter 6 and chapter 52, Laws of 1965, supra.

6/The secretary of state in the case of districts embracing more than one county, and the respective county auditors in all other cases.

7/However, it should be noted that even if such procedure is followed by the elections officers there is under existing law no requirement that incumbents file for their designated positions in seeking re‑election [[reelection]].

8/E.g., supreme and superior court judges pursuant to § 1, chapter 155, Laws of 1927 (RCW 29.21.110); city councilmen under § 1, chapter 109, Laws of 1961 (RCW 29.21.017); certain justices of the peace pursuant to § 14, chapter 299, Laws of 1961 (RCW 3.34.050); and school directors under § 1, chapter 223, Laws of 1963 (RCW 28.58.082).

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