AGLO 1981 No. 4 - Feb 26 1981
LEGISLATURE ‑- REDISTRICTING ‑- AUTHORITY OF STATUTORY REDISTRICTING COMMISSION
A legislative redistricting plan formulated by a statutorily-created redistricting commission could not become effective without being enacted into law by the legislature in the manner that other laws, generally, are enacted.
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February 26, 1981
Honorable Ted Haley
St. Sen., 28th District
104 Institutions Building
Olympia, Washington 98504 Cite as: AGLO 1981 No. 4
By recent letter you requested our opinion on the following questions relating to legislative redistricting:
"1) Considering that Article II, Section 22 requires a majority of the members of each house to vote in favor of a measure before it becomes law, can a measure approved by a statutorily created commission purporting to redistrict the Legislature become effective without a favorable vote of the Legislature?
"2) Would the fact that the Legislature would retain the power to vary the guidelines for a limited time period after commission action in any way effect the answer to question number 1?"
For the reasons set forth below, we must answer both questions in the negative.
The basis for our answer to both of your questions is, quite simply, the express language of Article II, § 3 of the Washington Constitution as it now exists and has existed since statehood. That section of the constitution reads as follows: [[Orig. Op. Page 2]]
"The legislature shall provide by law for an enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at the first session after such enumeration, and also after each enumeration made by the authority of the United States,the legislature shall apportion and district anew the members of the senate and house of representatives, according to the number of inhabitants, excluding Indians not taxed, soldiers, sailors and officers of the United States army and navy in active service." (Emphasis supplied)
It is, of course, also possible for redistricting to be accomplished through the passage of an initiative under Article II, § 1 (Amendment 7) of the constitution. See,State ex rel. Miller v. Hinkle, 156 Wash. 289, 286 Pac. 839 (1930). Or, as another alternative, a legally effective redistricting plan may be promulgated by order of a federal court in enforcing the "one‑man vote" principle of federal constitutional law established in Reynolds v. Sims, 377 U.S. 533 (1964) and its progeny of later cases. Where, however, the redistricting function is performed by the legislature itself, under Article II, § 3, the means by which it is performed is through the passage of an ordinary law or statute. See,e.g., chapter 6, Laws of 1965.
What this means, in turn, is that the basic subject at issue is the method by which laws may be enacted under the existing provisions of our state constitution. And that is a subject which was reviewed, at some length, by this office several years ago in the context of a somewhat similar proposal; namely, the enactment of legislation relating to the reorganization of certain departments and agencies of state government headed by officers or boards who are subject to gubernatorial appointment and removal. See, our letter opinion dated August 20, 1968, to then Governor Daniel J. Evans, a copy of which is enclosed for your immediate reference. The conclusion which we there reached, for reasons which are equally applicable here, was that in the absence of an enabling constitutional amendment, the legislature could not enact a law [[Orig. Op. Page 3]] empowering the governor to reorganize those departments in a manner in conflict with existing statutes‑-even though the governor's action would, under the legislation, be subject to legislative veto.
Most certainly, just as in that instance, the legislature could cause the subject procedures to be changed through the initiation and submission to the voters of a constitutional amendment. See, e.g., SJR No. 108 which is currently pending before the Senate and which, if adopted, would establish a five‑member redistricting commission to perform this most difficult function. But, in our opinion, a mere statutory redistricting commission, such as is apparently contemplated by your immediate questions, could not be vested with that same power.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Deputy Attorney General