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Bob Ferguson

AGO 1955 No. 171 - Dec 12 1955
Attorney General Don Eastvold


1. The state may be divided on a population basis into representative districts;

2. Two or more of these districts may be combined to form senatorial districts;

3. The boundaries of legislative districts may be defined by the use of United States census tracts or any other convenient method provided that such boundaries may be definitely ascertained.

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                                                               December 12, 1955

Honorable J. N. Ryder
State Senator, 46th District
5811 ‑ 55th N. E.
Seattle, Washington                                                                                                              Cite as:  AGO 55-57 No. 171

Dear Sir:

            In your letter of November 4, 1955, you ask the following questions pertaining to legislative reapportionment:

            (1) Can the state be divided on a population basis into representative districts?

            (2) Can two or more of these districts be combined to form senatorial districts?

            (3) Can the boundaries of the legislative districts be defined by use of U.S. census tracts or is it necessary to follow existing precinct, county or other political subdivision boundaries?

             [[Orig. Op. Page 2]]

            We answer your first two questions in the affirmative.  As to your third question we believe that any convenient means may be employed to define boundaries of legislative districts provided that such boundaries may be definitely ascertained.


            Article II, § 2 of the state constitution provides as follows:

            "The house of representatives shall be composed of not less than sixty-three nor more than ninety-nine members.  The number of senators shall not be more than one‑half nor less than one‑third of the number of members of the house of representatives.  The first legislature shall be composed of seventy members of the house of representatives, and thirty-five senators."

            Article II, § 3, provides:

            "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."

            Article II, § 6, provides in part:

            "After the first election the senators shall be elected by single districts of convenient and contiguous territory, at the same time and in the same manner as members of the house of representatives are required to be elected; and no representative district shall be divided in the formation of a senatorial district.  * * *"

             [[Orig. Op. Page 3]]

            InState ex rel. Warson v. Howell, 92 Wash. 540, the court, after setting out the constitutional provisions above quoted, stated at page 543:

            "These sections of the constitution, it will be observed, impose upon the legislature, when apportioning and redistricting anew the members of the senate and house of representatives, certain restrictions:  (1) Neither the senate nor house of representatives may contain more or less than certain specified numbers; (2) senatorial districts must be single and be of convenient and contiguous territory; (3) no representative district shall be divided in the formation of a senatorial district; (4) the apportionment must be made according to the number of inhabitants.  * * *"

            The original apportionment of the state into senatorial and legislative districts was provided by the constitution itself.  Article XXII, §§ 1 and 2.  Section 1 provided for the election of thirty-five senators from twenty-four districts comprised of one or more counties.  Section 2 made provision for the election of seventy representatives from thirty-four districts.  Each county had at least one representative.

            Chapter 60, Laws of 1901 provided for the redistricting and reapportionment of the state for legislative purposes.  The state was divided into forty-two senatorial districts each entitled to elect one senator.  Provision was made for the election of ninety-four representatives from fifty-six districts.  Each county had at least one representative.  To divide the more populous counties and cities into legislative districts, the boundaries of such districts were defined by listing wards and precincts.

            Although minor revisions of district boundaries have been made from time to time the legislature has failed to comply with the mandate of the state constitution requiring reapportionment of the state for legislative representation ever since 1901.

            In theWarson case it was held that the reapportionment act of 1901 was valid when enacted and that it remains in force until superseded by a subsequent valid act.  The court conceded that the legislature cannot be compelled to redistrict the state as directed by the constitution.

             [[Orig. Op. Page 4]]

            By 1930 inequalities of representation had become exceedingly gross.  Initiative measure No. 57 providing for reapportionment of the state was presented to the people in the general election of 1930.  This measure carried by the precarious margin of 795 votes.

            A substantial change in the formula of apportionment was effected.  By the terms of this enactment the state was divided into forty-six single senatorial districts.  The same districts were utilized for representatives.  Each senate district was entitled to two representatives with the exception of seven, each of which elect three.  State representatives were elected at large in each district.  For the first time some counties were deprived of a representative.  Four of the districts which were entitled to but two representatives were made up of three or more counties.  The legislature was composed of ninety-nine representatives (the maximum permitted under the constitution) and forty-six senators (three short of the allowable maximum).

            InState ex rel. Miller v. Hinkle, 156 Wash. 289, the court held that the people have authority to initiate a legislative reapportionment law.  The formula for legislative apportionment adopted by the people in 1930 is still in effect today. chapters 44.08 and 44.12 RCW.  Only very minor changes in the boundaries of a few districts have been made by the legislature.

            In response to your specific inquiries we find no legal impediment to dividing the state into representative districts on a population basis.  This was done by the founding father themselves in the first apportionment and again by the legislature in the act of 1901.

            We believe that two or more of these representative districts may be combined to form senatorial districts.  To comply with the constitution the senatorial districts must be single.  That is, each senate district shall be entitled to but one senator.  No representative district may be divided in the formation of a senate district.

            The problem of districting the state in accordance with the number of inhabitants is not an easy one.  InState ex rel. Warson v. Howell, supra, the court stated at page 544:

             [[Orig. Op. Page 5]]

            "* * * It is axiomatic also that the constitution is a limitation of power, not a grant of power, and that, save for constitutional restrictions, the legislature could apportion the state in any manner it deemed fit and the courts would be powerless to inquire into the validity of the act.  It follows, therefore, that the facts adduced to show the alleged unconstitutionality of the act in question must be clear and convincing, and must establish beyond question that the legislature in enacting the law went entirely beyond the limits marked by the constitution.  It is clear, furthermore, in providing that the apportionment should be made according to the number of inhabitants, the framers of the constitution did not intend that this should be done with mathematical exactness.  * * *  Before it will be invalid, its action must partake of an arbitrary disregard of the requirements of the constitution, or be so gross and inconsistent as to imply arbitrary action."

            Your final question pertains to the legality of a proposed new method of fixing the boundaries of legislative districts.  Under the auspices of the Bureau of Population Research at the University of Washington maps of each county and major city of the state have been made.  Each county and major city is divided into small areas called United States Census Tracts.  Each tract is numbered.  We understand that there are roughly one‑third as many census tracts in the state as there are precincts.  These maps have been approved by the Bureau of Census in the United States Department of Commerce.  Those who propose to substitute the use of the census tract technique for the ward and precinct method of defining boundaries of legislative districts advance two arguments in favor of the proposal.  They allege (1) that the boundaries of the census tracts will remain constant as contrasted to those of precincts.  (See RCW 29.04.040 and 29.04.055), and (2) that more precise population data is available as to these tracts than is the case with wards and precincts.

            It is our opinion that the use of these United States census tracts to define the boundaries of legislative districts would be valid if certain conditions are met:

            (1) Maps and legal descriptions of the area contained in such tracts should be made available to the public and filed with each county auditor and the secretary of state.

             [[Orig. Op. Page 6]]

            (2) The number of inhabitants in such tracts must be sufficiently small to permit the combination of such contiguous units into legislative districts of substantially equal population.

            We believe that there is no insuperable obstacle to the use of United States census tracts in defining the limits of legislative districts.

            We hope the foregoing analysis and historical background will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General