Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1972 No. 33 -
Attorney General Slade Gorton

                                                                - - - - - - - - - - - - -

                                                                    May 8, 1972

Honorable James P. Kuehnle
State Representative, Fourth District
S. 1122 Skyline Pl.
Spokane, Washington 99206
                                                                                            Cite as:  AGLO 1972 No. 33 (not official)

Dear Sir:
            We are in receipt of your letter dated April 26, 1972, requesting our comments with regard to a certain bulletin which was issued by Secretary of State Kramer to all county auditors and city clerks on March 22, 1972.
            In this bulletin, the secretary of state (in his capacity as chief elections officer) advised these various local election officials that as a result of a United States Supreme Court decision declaring durational residence requirements of one year in a state and ninety days in a county to be unconstitutional as a prerequisite to voting,
            ". . . the same provisions of our state constitution are likewise unconstitutional."
            This, of course, was a reference to Article VI, § 1 of the Washington Constitution which states, in material part, that persons entitled to vote in this state
            ". . . 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; . . ."
            While this does not appear from the face of Mr. Kramer's bulletin, the position taken therein was discussed with, and approved by this office prior to its issuance.  In simplest terms, we informed the secretary of state that the United States Supreme Court in Dunn v. Blumstein,     U.S.     ‑ decided on March 21, 1972 ‑ had held that a state may no longer require persons to have  [[Orig. Op. Page 2]] resided within the state for one year, or within a particular county for ninety days, in order to vote.  A copy of the full text of this decision is enclosed for your immediate reference.

            As you will note, this ruling was based upon the equal protection clause of Amendment 14 to the United States Constitution, which requires that no state shall
            ". . . deny to any person within its jurisdiction the equal protection of the laws."
            Under the supremacy clause of Article VI of the United States Constitution, it is fundamental that this constitutional requirement, as interpreted from time to time by the United States Supreme Court, takes precedence over any conflicting provisions of a state Constitution ‑ such as our own Article VI, § 1, supra, regarding the qualifications of electors in this state.  The full text of this clause reads as follows:
            "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."  (Emphasis supplied.)
            Thus while it is true, as you have pointed out, that there is still pending before the Washington State Supreme Court the case of Moen, et al. v. Erlandson, et al.,1/ involving the constitutionality of the "one year" durational residency requirement of our Constitution, supra ‑ a case in which we vigorously argued in support of this requirement2/ - there can no longer be any doubt as to the result which the  [[Orig. Op. Page 3]] Washington court must reach in that case.
            Finally, we note and comment upon the fact that the lesser, ninety-day requirement for county residence is not involved in the Moen case as it was in Blumstein, supra.  Under the above described rationale, the very fact that this requirement was also invalidated by the supreme court in that case requires our present abandonment of that aspect of our Constitution as well.  The highest court in our land has spoken, and we are simply bound by its decision.
            It was on this basis that we counseled with Mr. Kramer following the issuance of the supreme court's decision in the Blumstein case ‑ and approved his issuance of the bulletin which you have questioned.  We hope that after you have had an opportunity to study the full text of this court decision in the light of our present explanation you will, perhaps, better understand the current legal posture of this matter.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/Supreme Court Cause No. 42159.
2/As we also did, more successfully, in two similar cases tried before the Federal District Court in Seattle several months earlier.  See, Epps v. Logan, U.S.D.C., W.D. Wash. No. 9137, and Sterling v. Logan, U.S.D.C., W.D. Wash. No. 9281.