ELECTIONS ‑- VOTING QUALIFICATIONS ‑- RESIDENTS OF FEDERAL RESERVATIONS
For purpose of eligibility to vote, a person does live in the state of Washington if he lives within the geographical limits of the state but in an area over which the United States Congress has the power of "exclusive legislation."
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September 30, 1966
Honorable A. Ludlow Kramer
Secretary of State
Cite as: AGO 65-66 No. 107
This is written in response to your request for an opinion of this office on a question which we paraphrase as follows:
For purposes of eligibility to vote, does a person live in the state of Washington if he lives within the geographical limits of the state but in an area over which the United States Congress has the power of "exclusive legislation"?
We answer your question in the affirmative for the reasons set forth in our analysis.
The Washington state constitution contains the following provision, in Article VI, § 1, relative to voter qualifications:
"All persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections: They shall be citizens of the United States; they shall have lived in the state one year, and in the county ninety days, and in the city, town, ward or precinct thirty days immediately preceding the election at which they offer to vote; . . ." (Emphasis supplied.)
[[Orig. Op. Page 2]]
Though the legislature may regulate the means of exercise of this constitutional franchise (so long as the right is not destroyed or made so inconvenient that it is impossible to exercise it), it may neither add to, nor modify these constitutional qualifications for voting. SeeState ex. rel. Hubbard v. Lindsay, 52 Wn.2d 397, 404, 326 P.2d 47 (1958). The question here presented is whether a person otherwise qualified to vote can meet the requirement of having "lived in the state one year" where his place of residence during that year, though within the geographical limits of the state, is in an area over which Congress has the power of "exclusive legislation."
In the past this office has answered this question in the negative ‑-most recently in AGO 51-53 No. 337 (June 30, 1952). Thus, some persons living at McChord Air Force Base, Ft. Lewis Military Reservation, the Puget Sound Naval Shipyard, Ft. Vancouver National Historical Site, and the Puget Sound Naval Shipyard, who might otherwise have gained a voting residence in this state,1/ have not in the past been permitted to become registered voters. The puzzlement of such persons has no doubt been compounded by the fact that other persons, living at such places as Fairchild Air Force Base, Whidbey Island Naval Air Base, and certain other federal reservations, have been permitted to register and vote.
Prior attorneys general through the years have advised election officers that the law required them to treat residents of federal reservations in these various ways. Compare AGO 51-53 No. 337,supra, with AGO 51-53 No. 343 (July 8, 1952). The basis [[Orig. Op. Page 3]] for their advice has been the theory that federal reservations over which Congress has the power of "exclusive legislation" are not part of the state of Washington, although they are within its boundaries and were part of the state before the federal government acquired "exclusive legislation." Other reservations where the federal government has less legislative jurisdiction have been considered to be part of the state.
Your present request is, in essence, a request for review and reconsideration of the validity of this situation in the light of the recent decision of the Washington supreme court in DuPont-Fort Lewis School District v. Clover Pk. School District, 65 Wn.2d 342, 396 P.2d 979 (1964). In that case the court held that although Congress exercises the power of exclusive legislation over the Fort Lewis Military Reservation, the territory that the fort occupies is still part of the state of Washington, at least for the purpose of school district boundaries.
We have reviewed the law, and we conclude that the DuPont reasoning and other recent developments compel the conclusion that residence on a federal reservation over which Congress has the power of exclusive legislation may be residence in the state of Washington for voting purposes.2/
To understand how the opposing view ever came to be accepted, it is necessary to know something of the constitutional origin and historical development of the law on state and federal jurisdiction over federal enclaves.
(a)Origin and Development
The unusual rules of law concerning federal reservations have their source in Article I, § 8, of the United States constitution. The pertinent language is:
[[Orig. Op. Page 4]]
"The congress shall have power . . .
". . .
"To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings; . . ."
The framers of the United States constitution were impressed with the need for federal legislative power over the seat of government by reason of an incident which had occurred not long before the constitutional convention. In June of 1783, the Continental Congress was meeting in Philadelphia. A group of soldiers assembled in the street outside the meeting place and demanded in a threatening way to be paid. Pennsylvania authorities were unwilling or unable to provide requested police protection. After four days of humiliation and insecurity, the Continental Congress solved the problem by removing itself from Philadelphia to Princeton, New Jersey.3/
This reason, as well as the desirability of having the federal government independent of any particular state government, was responsible for the first part of Article I, § 8,supra, which gave Congress the power of exclusive legislation over land ceded by states to the United States for a seat of government. Notably, the original proposals for this clause did not provide for such federal legislative power over federal property other than the seat of government. However, the committee which was assigned the clause came out with a draft containing the following addition:
". . . and to exercise like authority over [[Orig. Op. Page 5]] all places purchased for the erection of forts, magazines, arsenals, dock yards, and other needful buildings."4/
The only debate over this provision concerned a fear that the federal government could buy up the whole territory of a state, thereby putting it out of business. This objection was removed by inserting after "purchased" the words "by the consent of the legislature of the state in which the same shall be.5/ The matter is explained by the writers of the Committee Text as follows:
"Aside from disclosing the relatively little interest manifested by the Convention in that portion of clause 17 which makes provision for securing exclusive legislative jurisdiction over areas within the States, the debates in the Constitutional Convention relating to operation of Federal areas, as reported by Madison, are notable in several other respects. Somewhat surprising is the fact that consideration apparently was not given to the powers embraced in article I, section 8, clause 18, and the supremacy clause in article VI, as a means for securing the integrity and independence of the geographical nerve center of the new government, and, more particularly, of other areas on which the functions of the government would in various aspects be performed. In view of the authority contained in the two last-mentioned provisions, the provision for exclusive jurisdiction appears to represent, to considerable extent, an attempt to resolve by the adoption of a legal concept a problem stemming primarily [[Orig. Op. Page 6]]from a lack of physical power."6/ (Emphasis supplied.)
Except when the land was to be used for lighthouses or related structures, Congress at first did not customarily require that the states consent to federal legislative jurisdiction when the United States purchased land for forts, dock yards and "other needful buildings."7/ However, in 1828 Congress authorized the President to procure the consent of the legislature of any state to exclusive legislation by Congress over any land which had already been acquired without such consent.8/ Then, in 1841, Congress set the pattern which was to last for one hundred years. It provided that no public money would be spent to improve any federal land until the state in which the site is located had consented to the purchase, giving Congress the power of exclusive legislation.9/
Previously, Congress had approved one exception to the exclusiveness of the legislative jurisdiction which it acquired when a state consented to purchase. In 1795, Congress provided that a consent would be sufficient even though the power to serve civil and criminal process in the affected area was reserved, and furthermore, that the states could serve the process in certain types of areas even if the power had not been reserved.10/ This act however did not give the states power to enforce their laws within the reservation; the process had to be for cases arising outside of the federal area. The principal idea was simply to prevent the reservations from becoming havens for fugitives from state criminal laws.
When Congress acquires the power of exclusive legislation over an area, it has been understood that the state legislature loses corresponding jurisdiction over the area. In general, state laws do not apply there. Since state executive officers carry [[Orig. Op. Page 7]] out state law and state courts apply the laws, these branches of the state government have no power in the area either. This situation leads some to call the federal government's power "exclusive jurisdiction," but that term is too loose in meaning to be useful in the present context, and it is not used in this opinion.
Until recently, persons living in the areas where Congress had the power of exclusive legislation were not subject to many of the benefits and burdens that residents of the surrounding states had. They did not pay state taxes and they were not subject to state police regulations while on the federal land. On the other hand, they could not enjoy such benefits of residents of the state as public education, using its courts to sue for divorce, and, it was thought, voting.
This was the state of the law when Washington was admitted into the Union. Article XXV of the Washington constitution consented to the exercise of exclusive legislation by Congress over all federal land then held or reserved for use for forts, magazines, arsenals, dock yards, lighthouses and other needful buildings. The first legislature gave the same consent, and in addition gave blanket consent to future purchases by the federal government under Article I, § 8, clause 16,11/ supra.
In this connection it should be noted that the federal constitutional provision has no application in the case of a state's cession of legislative jurisdiction over lands already owned by the United States (original federal land, or land acquired by condemnation, or purchase without consent of the state legislature). The provision refers only to land purchased by the United States with consent of a state legislature. Thus inFort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), it was held that in the case of land not acquired by the United States under Article I, § 8, clause 16, supra, a state did not have to cede exclusive legislation; the state could reserve partial legislative jurisdiction to itself. Thus, for example, in 1901, when Washington ceded "exclusive legislation" over the federal land reserved for Mount Rainier National Park, the state saved for itself, in addition to the right to serve process,
". . . the right to tax persons and corporations, their franchises and property [[Orig. Op. Page 8]] on the lands included in said park . . ."12/
In contrast to this it was long felt that no reservation of legislative jurisdiction could be made in a consent-to-purchase situation under clause 16; it was thought that if such a grant were made, Congress had to obtain the whole power of exclusive legislation. However, the United States supreme court rejected this theory in 1937, in the case ofJames v. Dravo Contracting Co., 302 U.S. 134.13/ The court took into account the practical consequence of the matter, and said (302 U.S. 134, 186):
". . . a transfer of legislative jurisdiction carries with it not only benefits but obligations, and it may be highly desirable, in the interest both of the national government and of the State, that the latter should not be entirely ousted of its jurisdiction. The possible importance of reserving to the State jurisdiction for local purposes which involve no interference with the performance of governmental functions is becoming more and more clear as the activities of the Government expand and large areas within the States are acquired. There appears to be no reason why the United States should be compelled to accept exclusive jurisdiction or the State be compelled to grant it in giving its consent to purchases."
Thereupon, the Washington legislature, by chapter 126, Laws of 1939, promptly repealed its 1890 blanket consent-to-purchase law and enacted a new law consenting to the exercise by Congress of concurrent jurisdiction with the state over [[Orig. Op. Page 9]] federal land, however acquired. See, RCW 37.04.010-37.04.030. Jurisdiction already ceded to and accepted by Congress under the prior act was saved by § 4 of the act (RCW 37.04.040). However, § 3 of the act (RCW 37.04.030) provided:
"The state of Washington hereby expressly reserves such jurisdiction and authority over land acquired or to be acquired by the United States as aforesaid as is not inconsistent with the jurisdiction ceded to the United States by virtue of such acquisition."
Then, in 1940, the United States eliminated the 1841 requirement that the power of exclusive legislation be obtained before funds are spent to improve federal land.14/ The law15/ now reads:
"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head . . . of any department . . . may, in such cases and at such times as he may deem desirable, accept or secure from the State . . . consent to or cession of such jurisdiction, exclusive or partial . . . as he may deem desirable . . ."
In this same year, Congress passed a law commonly known as the Buck Act,16/ which permits the states to levy sales, use and income taxes
". . . in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area."
[[Orig. Op. Page 10]]
"The provisions of sections 105 to 110 of this title shall not for the purposes of any other provision of law be deemed to deprive the United States of exclusive jurisdiction over any Federal area over which it would otherwise have exclusive jurisdiction or to limit the jurisdiction of the United States over any Federal area."17/
Apparently, Congress was saying that the exercise by a state of concurrent jurisdiction to tax in a federal area is not inconsistent with Congress retaining "exclusive legislation" over the same area. Although purists might wince at the abuse of language,18/ the result was practical. Nothing suffers but the meaning of the term "exclusive jurisdiction." (presumably here used in a manner synonymous with "exclusive legislation".)
Nor did a fastidious regard for language deter the United States supreme court from holding that a municipality might exercise its annexation power in an area where Congress has the power of exclusive legislation. InHoward v. Commissioners of the Sinking Fund of the City of Louisville, 344 U.S. 624, 626 (1953), the court, in the course of its decision, said:
"The appellants first contend that the City could not annex this federal area because it had ceased to be a part of Kentucky when the United States assumed exclusive jurisdiction over it. With this we do not agree. When the United States, with the consent of Kentucky, acquired the property upon which the Ordnance Plant is located, the property did not cease to be a part of Kentucky. The geographical structure of Kentucky [[Orig. Op. Page 11]] remained the same. In rearranging the structural divisions of the Commonwealth, in accordance with state law, the area became a part of the City of Louisville, just as it remained a part of the County of Jefferson and the Commonwealth of Kentucky. A state may conform its municipal structures to its own plan, so long as the state does not interfere with the exercise of jurisdiction within the federal area by the United States. Kentucky's consent to this acquisition gave the United States power to exercise exclusive jurisdiction within the area. A change of municipal boundaries did not interfere in the least with the jurisdiction of the United States within the area or with its use or disposition of the property. The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction not fiction, to which we must give heed." (Emphasis supplied.)
This language, it is to be noted, was particularly persuasive to the Washington supreme court in 1964, in DuPont-Fort Lewis School District v. Clover Pk. School District, supra; it was quoted with approval in the court's opinion, and then followed by a determination of the school district boundary issue in the following words (65 Wn.2d 342, 351):
"We are not here concerned with any conflict of jurisdiction. We are concerned with whether the land on which 93 children lived, concededly in the Fort Lewis Military Reservation, could also be in the Clover Park School District. For the reasons indicated, we are satisfied that it could be and was; . . ."
In the course of this same opinion, the Washington court seemingly receded from certain "sweeping language" which it had [[Orig. Op. Page 12]] used in the earlier case ofConcessions Co. v. Morris, 109 Wash. 46, 51, 186 Pac. 655, 657 (1919), a case concerned with the power of the state in 1919 to tax personal property located on the Fort Lewis Military Reservation. In theMorris case the court said:
"'. . . the answer to this is clear, and that such property iswithout the state in both a jurisdictional and territorial sense, for, as we have seen by the constitution of the United States, and the act of the legislature of this state, both the military reservation itself and the jurisdiction and legislation over it have been granted to the United States, and thereby there has been created an independent sovereignty the territory of which is surrounded by the state of Washington, but over which the state of Washington has no jurisdiction. A territory has been created which resembles that of the District of Columbia, the only reservation being that the state of Washington can serve civil and criminal process therein on actions arising outside the reservation.'"
InDuPont, the court referred to this language as a "statement" rather than a "holding," and remarked (65 Wn.2d 342, 344) that:
"Prior statements are not to be confused with prior holdings. Courts generally and this one is no exception, frequently use language much broader in its scope than required for the decision of the particular matter presently before them."
However, this undoctrinaire trend in recent congressional and judicial action does not mean that a state now has full legislative jurisdiction concurrently with the federal government over all federal land within the state. In the absence of a reservation in the grant of legislative jurisdiction to the federal government, or in the absence of approval by Congress, a state still may not enforce its regulatory laws or tax laws on federal land where Congress has the power of exclusive legislation. See,Paul v. United States, 371 U.S. 245 (1963); Committee Text pp. 177-178.
[[Orig. Op. Page 13]]
The remaining relationships of a state and the federal government concerning land within the state where Congress has the power of exclusive legislation may be roughly summarized as follows:
(1) Congress has opened the way for some additional state taxation not already provided for in the Buck Act. See,Offutt Housing Co. v. Sarpy County, 351 U.S. 253 (1956);
(2) State workman's compensation laws and unemployment compensation laws apply in the areas. See, 40 U.S.C. § 290 and 26 U.S.C. § 3305 (d), respectively;
(3) Services of state government, such as fire protection, public education and visiting nurse services, are not available to residents of federal areas unless by agreement between the state and the federal government,19/ or unless the status of the federal area is disregarded for these purposes, as it often is;20/
(4) Certain general and special acts of Congress permit the states to police roads passing over the federal areas;21/ and
(5) The residents of the federal areas are denied access to state courts for divorce and probate purposes, unless federal or state legislation permits the state court to take jurisdiction of the parties.22/
This brings us to the crucial matter of voting rights.
[[Orig. Op. Page 14]]
The early cases on voting rights of residents of areas where Congress has the power of exclusive legislation were disposed of on the basis of the extraterritoriality and exclusive legislation doctrines which then prevailed. These early cases uniformly held that the residents of such areas had no right to vote.
InOpinion of the Justices, 1 Metc. (42 Mass.) 580 (1841), the court held that inhabitants could not vote because the legislative power of Congress over the area where they lived was necessarily exclusive. The court said (pp. 582-83):
". . . Where the general consent of the Commonwealth is given to the purchase of territory by the United States, for forts and dock yards, and where there is no other condition or reservation in the act granting such consent, but that of a concurrent jurisdiction of the State for the service of civil process, and criminal process against persons charged with crimes committed out of such territory‑-the government of the United States have the sole and exclusive jurisdiction over such territory, for all purposes of legislation and jurisprudence, with the single exception expressed, and consequently, . . . that persons residing within the same do not acquire the civil and political privileges, nor do they become subject to the civil duties and obligations of inhabitants of the towns within which such territory is situated."
InSinks v. Reese, 19 Ohio St. 306 (1869), the court applied the extraterritoriality theory so rigorously that it voided an express reservation in a consent-to-purchase statute purporting to reserve to inhabitants of the area the right to vote. The court said at p. 318:
". . . it is not constitutionally competent for the general assembly to confer the elective franchise upon persons whose legal status is fixed as non-residents of the State. . . ."
The court explained its conclusion on residency as follows: (pp. 316-17.)
[[Orig. Op. Page 15]]
". . . By becoming a resident inmate of the asylum, [for disabled soldiers] a person though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to contribute to her revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdiction of another power, as foreign to Ohio as is the State of Indiana or Kentucky, or the District of Columbia. The constitution of Ohio requires that electors shall be residents of the State; but under the provisions of the Constitution of the United States, and by the consent and act of cession of the legislature of this State, the grounds and buildings of this asylum have been detached and set off from the State of Ohio, and ceded to another government, and placed under its exclusive jurisdiction for an indefinite period. We are unanimously of the opinion that such is the law, and with it we have no quarrel; for there is something in itself unreasonable that men should be permitted to participate in the government of a community, and in the imposition of charges upon it, in whose interests they have no stake, and from whose burdens and obligations they are exempt. . . ."
Congress immediately came to the relief of the residents of this national asylum for volunteer soldiers by ceding Congress' entire legislative jurisdiction back to Ohio. Act of January 21, 1871, 16 Stat. 399. However, nothing was done for residents of all the rest of the areas under Congress' exclusive legislative jurisdiction, although their situation was identical.23/
[[Orig. Op. Page 16]]
This rule denying the vote appears to have been followed without deviation‑-in all states where the issue arose24/ ‑- until 1952.25/ In that year however the then Attorney General of California Edmund G. Brown, issued a well-reasoned opinion concluding that residents of areas of California over which Congress had the power of exclusive legislation were residents of California for voting purposes.26/ Attorney General Brown's analysis was extensive, but his chief reasons were that the extraterritoriality theory had been repudiated, and that in fact and law California was exercising partial jurisdiction over the areas through recessions from Congress.
The attorney general's opinion was closely followed (both in time and in reasoning) by the case ofArapajolu v. McMenamim, 113 Cal.App.2d 824, 249 P.2d 318 (Dist. Ct. App. 1952), wherein the court said at p. 831:
"The jurisdiction over these lands is no longer full or complete or exclusive. A substantial portion of such jurisdiction now resides in the states and such territory can no longer be said with any support in logic to be foreign to California or outside of California or without the jurisdiction of California or within the exclusive jurisdiction of the United States. It is our conclusion that since the State of California now has jurisdiction over the areas in question in the substantial particulars above noted residence in such areas is residence within the State of California entitling such residents to the right to vote given by section 1, article II of our Constitution."
The court added an additional ground for its conclusion (at pp. 831-32) as follows:
"The State of California did not relinquish [[Orig. Op. Page 17]] to the United States the right of citizens resident on federal lands to vote nor did the United States acquire those rights.
"The right to vote is personal to the citizen and depends on whether he has met the qualifications of section 1, article II of our Constitution. If the state retains jurisdiction over a federal area sufficient to justify a holding that it remains a part of the State of California a resident therein is a resident of the state and entitled to vote by virtue of the constitutionally granted right. No express reservation of such rights is necessary, nor could any attempted express cession of such rights to the United States be effective."
This decision of the California court has been approved and followed by the supreme courts of West Virginia27/ and Utah.28/ In 1963, the Maryland court of appeals found these three cases "not persuasive" and chose to follow the prior rule.29/
The Washington court, of course, has not yet spoken on the question in terms of voting rights. It has however recently ruled that an area over which Congress has the power of exclusive legislation is, nevertheless, still a part of the state, at least for purposes of school district boundaries. DuPont-Fort Lewis School District v. Clover Pk. School District, supra, rejecting the contrary "statement" made in 1919 in Concessions Co. v. Morris, supra. In view of the significance which this office in the past placed on this earlier language in advising election officials on the voting rights question, this apparent change in thinking on the part of the Washington court is, obviously, crucial.
The most often referred to prior attorney general opinion on the question is AGO 51-53 No. 337, supra. In that opinion [[Orig. Op. Page 18]] dated June 30, 1952, (before the 1952 California decision and attorney general opinion noted above) this office advised that residents of Vancouver Barracks, a federal reservation where Congress has the power of exclusive legislation, could not vote because they did not live in the state of Washington. The principal basis for the opinion was the language in Concessions Co. v. Morris, supra, to the effect that such federal land is not within the state of Washington. The attorney general was simply following the law of the state at that time, as it had been declared by our supreme court.30/
However, where the issue arose concerning residents of federal areas where Congress did not have the power of exclusive legislation, this office concluded that the residents could vote. AGO 51-53-343 [[AGO 51-53 No. 343]](Fairchild Air Force Base).31/ The point of course was that in the case of such areas, Concessions Co. v. Morris, was inapplicable and thus,
". . . Such land, in our opinion, continues to be state territory simply because it has not been acquired by the federal government under any circumstance which will divest the state of general jurisdiction . . ." (AGO 51-53 No. 343 at p. 2.)
[[Orig. Op. Page 19]]
With the Washington court's decision in DuPont, supra, it is now settled that even those areas in the state where Congress has the power of exclusive legislation are within the state of Washington. The saying that such land is "without the state" was never more than a figure of speech, and though it may have been an apt metaphor at one time, it is not now, when numerous state laws apply in these areas.
Furthermore, it is inaccurate to compare areas within a state where Congress has the power of exclusive legislation with the District of Columbia. In the first place, Congress has provided the District of Columbia with civil government, but it has not done so with the other areas, except for the assimilative crimes acts, and a few other provisions of minor importance. Whenever Congress has become concerned with civil government for residents of a federal area within a state it has retroceded legislative jurisdiction to the state.32/
Secondly, the District of Columbia was created by cessions of territory under the first part of Article I, § 8, clause 16, supra. The power of Congress, if any, over all other federal areas results from cessions not of territory but ofjurisdiction under the second part of clause 16. Thus, the supreme court of appeals of Virginia was correct in ruling that a resident of the part of Virginia ceded to the United States for the District of Columbia was no longer a resident of Virginia, and for that reason could not vote there. Curtis v. Lane, 3 Mun. [[3 Munf.]](17 Va.) 579 (1813). But this case is not authority where jurisdiction, not territory, was transferred.
In addition to the distinctions already made, there is another reason why the analogy (often made in the older cases) between state cessions of jurisdiction and cessions of territory between sovereign states is not apt. Neither the United States nor its component states are sovereign with respect to each other. Together, they share the total sovereignty of our nation‑-it is apportioned between them. It is normal in our country for a state government and the federal government to each be exercising its respective power over the same territory at the same time. This has been clearly recognized by the supreme courts of both the [[Orig. Op. Page 20]] United States and the State of Washington. We repeat part of the language from Howard v. Commissioners, 344 U.S. 624 (1953), quoted in DuPont-Fort Lewis Sch. Dist. v. Clover Park Sch. Dist., supra, at p. 351:
". . . The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction, not fiction, to which we must give heed."
The objection to a state unilaterally allowing residents of the areas where Congress has the power of exclusive legislation to vote is mainly theoretical. It is theorized that Congress has the abstract power to confer voting privileges in the areas where it has the power of exclusive legislation, and thus the states have given this power up.
We have already seen what little weight the United States supreme court has given to theoretical objections in James v. Dravo Contracting Co., supra, andHoward v. Commissioners, supra, and it is as true today as when Holmes said it that experience, not logic, is the life of the law.33/ Beyond this, the theoretical objection is arguably unsound. By this we mean that it may be that the power to determine who may vote is so purely a state power that it was never intended to pass with a grant of power to Congress to exercise "exclusive legislation." Or, it may be held that where the right to vote is granted to a person by the state constitution, the state legislature has no power to cede it away.34/
Finally, a state has the right to establish the qualifications of voters, and unless the state's standards are contrary to the requirements of the United States constitution, the state's determination is final. SeeCarrington v. Rash, 380 U.S. 675 (1965);Katzenbach v. Morgan, 384 U.S. 641 (1965).
[[Orig. Op. Page 21]]
A state plainly has sufficient contacts with residents of federal areas within the state, though Congress may have the power of exclusive legislation over the areas, so that the state's decision to let the residents vote is not irrational. Unless it can be said that the state's decision is contrary to Article I, § 8, clause 16,supra, itself, we see no basis for upsetting it.
On the other hand,Carrington v. Rash, supra, holds that any classification which a state sets up in deciding who can vote must meet the test of reasonableness required by the equal-protection clause of the 14th Amendment. If the Washington constitution were construed to confer the vote on all actual residents of the state except those who reside on areas where Congress has the power of exclusive legislation, then the very serious (and unsettled) question would arise: Are these persons so differently situated from other residents of its state as to justify withholding from them a fundamental privilege afforded to the others?
In addition to the legalistic arguments, many of the cases and opinions give practical and policy reasons for denying the vote to residents of the areas where Congress has the power of exclusive legislation. We will examine some of these policy reasons as well, for they are entitled to weight in selecting the better rule, when authority is divided.
(1)"No Burdens, No Benefits"
The early cases said that residents of areas where Congress has the power of exclusive legislation do not share the burdens of state citizenship, therefore, they ought not to share its benefits. See the quotation fromSinks v. Reese, supra.
If this were ever true, it is not true today. As we have pointed out, the residents of the federal areas are now subject to many of the taxes and other obligations which are imposed on other residents of the state.
Furthermore, residents of the federal areas have all the burdens of United States citizenship, and the only way to have a voice in the federal government is to be a qualified voter in a state.35/ As more and more problems have become [[Orig. Op. Page 22]] national in scope, more and more of the burdens of citizenship come from the federal government. For example, the federal income tax and compulsory military service are imposed by Congress.
(2)"They Have No Interest In Local Affairs"
This is not, in fact, necessarily true.
It is, however, true that only a small fraction of the persons who live on federal reservations are likely to maintain their legal residence there. Many will not have the kind of permanence which would make them want to establish legal residence. Others who are more permanent will choose to maintain the legal residence they had before coming to the federal reservation, as they are entitled to do under constitutional provisions such as Article VI, § 4 of the Washington constitution,36/ and soldiers' and sailors' civil relief legislation.37/
Some residents of areas under Congress' power may have no interest in voting, the same as some residents outside the area, but we are aware from personal contacts over the years that others are most interested. And, of course, voting is a personal right. It is not to be denied to one even if he is a member of a class which may generally be disinterested in voting.
The interest of the residents of areas where Congress exercises the power of exclusive legislation in local affairs outside of the federal area would seem to be legitimate. The private automobile has made our population mobile, and we are all interested in what goes on beyond the immediate [[Orig. Op. Page 23]] area of our homes and jobs. Residents of Fort Lewis ought to be interested in whether air pollution is controlled, whether vice is suppressed or tolerated in the surrounding communities, whether the state school to which they send their children are good schools, and whether their gasoline tax money is well spent.
(3)Interference With the Federal Government
Some early commentators said that the federal government needs to exclude the state from its installations in order to properly carry out its functions. Less is heard of this argument now that Congress has said that only concurrent jurisdiction is necessary and that the states may tax and exercise other powers over federal areas, even where Congress has the power of exclusive legislation.
We believe that the courts of California, West Virginia and Utah were correct in holding that a state‑granted right to vote is not in conflict with Article I, § 8, clause 16, supra. We are convinced that these decisions are sound, from both a legal and a policy standpoint. The recent decision of our own supreme court in DuPont, supra, points the way, in our judgment, to a similar holding here.
In short, our answer to your question, as paraphrased, is that for purposes of eligibility to vote, a person does live in the state of Washington if he lives within the geographical limits of the state but in an area over which the United States Congress has the power of "exclusive legislation." AGO 51-53 No. 337,supra, and similar earlier opinions, are hereby overruled.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
MORTON M. TYTLER
Assistant Attorney General
*** FOOTNOTES ***
1/We are, of course, cognizant of Article VI, § 4, of our state constitution, which provides:
"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, . . ."
However, this provision does not prevent a person in federal service from establishing a legal residence, for various purposes including voting in this state. The question is in large part factual, and is dependent upon the intent, or state of mind of the individual. Kankelborg v. Kankelborg, 199 Wash. 259, 90 P.2d 1018 (1939).
2/Voter registration presupposes voting precincts. See RCW 29.07.080. Consequently, the duty imposed on boards of county commissioners and councils of first class cities to establish voting precincts, RCW 29.04.040, extends to all territory where qualified voters are domiciled, including any areas under "exclusive federal legislation." If such territory has in the past been omitted from existing precincts it may now be added by virtue of authority implied from RCW 29.04.030 (which expressly vests the courts with authority to compel performance of omitted duties).
3/This account is taken from chapter II, pages 15-17 of the Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the State, Part II, a Text of the Law of Legislative Jurisdiction (1957). This valuable treatise will hereafter be cited as the "Committee Text."
4/Committee Text at pp. 19-20.
5/Id. at pp. 20-21.
6/Committee Text at p. 21, Article I, § 8, clause 18, referred to in the quotation, is the clause giving Congress power to make all laws necessary and proper to carry out the powers of the federal government.
7/Id. at pp. 28-29.
8/Id. at pp. 30-32. This law is presently 4 U.S.C. § 103.
9/See, Joint Resolution No. 6, 27th Congress, 1st Session, September 11, 1841, 5 Stat. 468, codified as R.S. 355.
10/Committee Text at pp. 34-35.
11/Laws of 1889 ‑ 90, p. 459.
12/See, RCW 37.08.200. In 1916, Congress accepted the cession in those terms; see, 16 U.S.C. § 95.
13/Two companion cases involved the Columbia Basin Project in Washington: Silas Mason Co. v. Tax Comm. of Washington, andRyan v. State, 302 U.S. 186 (1937).
14/See, footnote 9, supra.
15/33 U.S.C. § 733, also codified as 40 U.S.C. § 255, and as 50 U.S.C. § 175.
16/4 U.S.C. §§ 105-106.
17/4 U.S.C. § 108.
18/Black's Law Dictionary (4th ed.) says:
"EXCLUSIVE JURISDICTION. "The words preclude idea of co-existence, and mean possessed to exclusion of others . . ."
19/See, DuPont-Fort Lewis School District v. Clover Pk. School District, supra; Committee Text pp. 216-19, 236-38.
20/Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas within the States, Part I, The Facts and Committee Recommendations, pp. 56-57. (This work will hereafter be cited as "Committee Facts and Recommendations.")
21/Committee Text, pp. 93-94.
22/Id. at pp. 225-36.
23/Similarly, in 1949, Congress came to the rescue of the voting rights of residents of the Los Alamos atomic reservation, but no one else, by retroceding legislative jurisdiction over Los Alamos after the New Mexico supreme court said its residents could not vote. Act of March 4, 1949, 63 Stat. 11. The instigating case is Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948). Legislative history is given in Committee Text, pp. 92-93.
24/Including our own, per opinions of prior attorneys general.
25/The cases are collected in the Committee Text, p. 221, Footnote 11.
26/20 Ops. Atty. Gen., California, 127.
27/Adams v. Londeree, 137 W.Va. 748, 83 S.E.2d 127 (1954).
28/Rothfels v. Southworth, 11 Utah 2d 169, 356 P.2d 612 (1960).
29/Royer v. Bd of Election Supervisors, 231 Md. 561, 191 A.2d 446 (1963).
30/Similar conclusions had already been reached in a letter to Mr. Kenneth N. Gilbert, State Superintendent of Elections, May 10, 1946; Opinion to the Secretary of State, September 8, 1916, and to the Prosecuting Attorney, Island County, dated August 4, 1902 (Fort Casey).
31/See, also, Opinion to the prosecuting attorney, Kitsap county, August 7, 1944 (a portion of Puget Sound Naval Shipyard over which Washington retained concurrent jurisdiction); Opinion to Secretary of State, November 2, 1943 (Hanford) explained in a letter to the prosecuting attorney Benton county, November 16, 1943; and letter to Honorable Henry M. Jackson, M.C., July 24, 1944 (Whidbey Island Naval Air Station).
32/See, Footnote 23 supra.
33/Holmes, The Common Law, p. 1 (1881).
34/Arapajolu v. McMenamim, supra.
35/See, United States Constitution, Article I, § 2.
36/Repeated for ease of reference, this section provides:
"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, . . ."
37/See, 50 U.S.C. App. § 574.