AGO 1970 No. 28.

Case Date:December 22, 1970
Washington Attorney General Opinions 1970. AGO 1970 No. 28. December 22, 1970[Orig. Op. Page 1]PRIVATELEGISLATURE -- DISTRICTS -- ONE MAN ONE VOTE -- REFERENDUM -- GUIDELINES FOR CONGRESSIONAL AND LEGISLATIVE REDISTRICTINGCongressional and legislative redistricting plans to be completed prior to 1972 general election; may be enacted by referendum bill; continuation of 99 member house of representatives may be justified; some house districts may be multi-member while others are single member, where rational pattern is followed; population deviations not allowable on a "de minimis" basis; burden upon legislature to justify population variations; the ability of the legislature to draw lines which adhere to county boundaries appears to be very limited; redistricting of military bases related to registered voters.Honorable James A. AndersenState Senator, 48th DistrictBellevue, WashingtonHonorable Stewart BledsoeState Representative, 13th DistrictEllensburg, WashingtonCite as: AGO 1970 No. 28Gentlemen: Following completion of the 1970 federal census, as you know, the Washington legislature will again be faced with the dual tasks of congressional and legislative redistricting. In order to assist the legislature in its enactment of constitutionally defensible legislation regarding these subjects the two of you have asked this office to prepare a general resume of the pertinent judicial decisions governing redistricting - principally, the recent decisions of the United States Supreme Court rendered in connection with its "one man one vote" doctrine under the equal protection clause of Amendment 14 to the United States Constitution. Secondarily, based upon these decisions, you have requested our opinion on a number of specific questions designed to establish guidelines for future redistricting in the state of [Orig. Op. Page 2] Washington. These questions, which we will set forth, and answer, within the body of this opinion, deal with such matters as what is required by our state Constitution with respect to redistricting; when must redistricting be accomplished; whether congressional and legislative redistricting may be enacted by referendum bills; and lastly, the ingredients of a constitutionally defensible redistricting plan. ANALYSIS I. Resume of Redistricting Decisions A. Background Historically, the constitutions of virtually all of the various states have required that at least one house of a bicameral state legislature be apportioned on the basis of equally populated legislative districts. Similarly, the provisions of Article I, § 2 of the United States Constitution, since its inception, have required the apportionment of members of the United States House of Representatives among the several states in accordance with their respective populations. And, in addition, although the United States Constitution establishes a scheme for the election of United States Senators (as distinguished from representatives) which is unrelated to population, many of the state constitutions (including our own) long have contemplated equal population as a basis for representation in both of their legislative houses. However, until the early 1960's, judicial enforcement of these constitutional requirements was totally lacking at the federal court level. See, Colegrove v. Green, 328 U.S. 549 (1946), in which the United States Supreme Court refused to consider a claim of malapportionment aimed at congressional districts in the state of Illinois. At the state court level, in turn, enforcement was, at best (at least in most states, including Washington) somewhat loose and imprecise. See, in so far as this state was concerned, State ex rel. Warson v. Howell, 92 Wash. 540, 159 Pac. 777 (1916), the tone of which is well reflected by the following excerpt from the court's decision: "It cannot be disputed that the presumption of constitutionality attaches to apportionment acts in the same manner that it does to any other act of the legislature, and that any doubt as to the power of the legislature to pass the particular act must result in a finding that the act is [Orig. Op. Page 3] within the legislative power. 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. Indeed, it requires no demonstration to show that, because of the other restrictions imposed, this is wholly impossible. Something, therefore, was left to the discretion of the legislature. If in complying with the other mandates of the constitution it finds that it is compelled to ignore equality in population to some extent, its enactment will nevertheless be valid because of the necessity of the case. 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." Note, also, State ex rel. O'Connell v. Meyers, 51 Wn.2d 454, 319 P.2d 828 (1957), where, disposing of a challenge that had been made as to the constitutionality of a legislative apportionment scheme contained in chapter 289, Laws of 1957 ("amending" Initiative 199) the Washington court said: "The relator, in attacking the constitutionality of chapter 289 as being violative of Art. II, § 3, of the Constitution, had the burden of proof to establish (1) the number of inhabitants in each legislative district in March, 1957, and (2) that disproportionateness exists [Orig. Op. Page 4] among the various districts. See Frach v. Schoettler, 46 Wn.2d 281, 280 P.2d 1038 (1955). The relator failed to prove either of these essential elements. "There is a presumption that the legislature performed its duty by establishing the districts according to law. Frach v. Schoettler, supra, p. 285. The authority and duty to ascertain facts which control legislative action are upon those to whom was given the power to legislate. Courts will not inquire into a legislative factual determination, beyond consideration of that which appears upon the face of the act, aided by judicial notice. State ex rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933). See, also, In re Bailey's Estate, 178 Wash. 173, 177, 34 P.2d 448 (1934); Ajax v. Gregory, 177 Wash. 465, 476, 32 P.2d 560 (1934)." B. Malapportionment Becomes Justiciable Largely as a consequence of this attitude of judicial restraint, most of the federal and state constitutional mandates regarding congressional and legislative apportionment were historically ignored by the legislative bodies to which they were directed - until the latter years of the last decade, following the issuance of the United States Supreme Court decision in Baker v. Carr, 369 U.S. 186 (1962). In Washington for example, although required by Article II, § 3 of our state Constitution to reapportion both of its houses after each decennial federal census, the legislature itself (following its initial statutory apportionment in 1890)(fn1) failed do so during this "pre -Baker" period except (a) in 1901, following completion of the second federal census after statehood(fn2) and, (b) in 1957, as a reaction to the passage of Initiative 199.(fn3) In addition to these two acts of the legislature itself, redistricting was accomplished by the initiative process in 1930 - an approach which was upheld by the Washington [Orig. Op. Page 5] court in State ex rel. Miller v. Hinkle, 156 Wash. 289, 286 Pac. 839 (1930), and was again utilized in the case of Initiative 199, in 1956. In Baker v. Carr, supra, however, the United States Supreme Court precipitated a profound change by holding that a claim of legislative malapportionment presents a justiciable question under the equal protection clause of the 14th Amendment to the United States Constitution. The nature of this claim was described by the court as follows (369 U.S. 187, 207): ". . . Their [the plaintiffs] constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State's Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in irrationally favored counties. . . ." (Emphasis supplied.) A similar ruling with respect to congressional redistricting was made some two years later in Wesberry v. Sanders, 376 U.S. 1 (1964), and these two cases, taken together, constituted an overruling of Colegrove v. Green, supra, and set the foundation for all that has followed, both in this state and elsewhere, in the ensuing period since...

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