Michael Carlson, App/cross-res. v. San Juan County, Res/cross-app.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAEL CARLSON, JERROLD R. No. 70710-8-1
GONCE, JEFFREY BOSSLER,
RICHARD PETERSON, MARC DIVISION ONE
FORLENZA, and GREGORY AYERS,
Appellants/Cross Respondents,
SAN JUAN COUNTY, a political
subdivision of the State of Washington, PUBLISHED OPINION
THE STATE OF WASHINGTON, JAMIE
STEPHENS, and LOVEL PRATT,
Respondents/Cross Appellants,
ELISABETH BYERS, ROBERT
JARMAN, BRIAN MCCLERREN,
PATTY MILLER, and RICK HUGHES,
Necessary Parties. FILED: September 2, 2014
Schindler, J. — In the 2012 general election, the voters of San Juan County
approved Proposition No. 1. Proposition No. 1 amended the San Juan County Home
Rule Charter to reduce the number of county council members from six to three
members, each residing in one of three unequal size residency districts but nominated
and elected by the voters in an at-large countywide election. San Juan County
residents Michael Carlson, Jerrold R. Gonce, Jeffrey Bossier, Richard Peterson, Marc
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Forlenza, and Gregory Ayers (collectively Carlson) appeal summary judgment dismissal
of the complaint for declaratory and injunctive relief. Carlson contends Proposition No.
1 and the statutes that allow residency districts with unequal populations violate equal
protection; due process; and article I, section 12 and article I, section 19 of the
Washington State Constitution. Carlson also claims the Proposition No. 1 ballot title
violates article II, section 19 of the Washington State Constitution; and Proposition No. 1
did not comply with former San Juan County Home Rule Charter article 8, section
8.31(3) (2005). Because there is no evidence that the residency districts with unequal
populations eitherdilutes the strength of an identifiable element ofthe voting population
or otherwise results in discrimination, we affirm summary judgment dismissal of the
complaint for declaratory and injunctive relief.
FACTS
San Juan County (County) is comprised ofseveral dozen islands located in the
northwest corner ofWashington. The largest islands are San Juan, Orcas, Lopez, and
Shaw.
In 2005, the voters approved adoption of a "Basic Home Rule Charter" (Charter)
"for the governance ofSan Juan County." The voters also approved an amendment
that increased the number of council members from three to six, and created six
legislative districts of"nearly equal populations" with each district nominating and
electing a county council member. In addition, the voters approved establishing a
charter review commission (CRC) elected from the six voting districts and "apportioned
according to the population distribution" of that district. The amendment states the CRC
members would be elected five years after the adoption of the Charter "to determine its
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adequacy and suitability to the needs of the County," make recommendations, and
propose amendments.
The voters elected 21 CRC members in 2011. From January to May 2012, the
CRC held weekly public meetings. Current and former elected officials and the public
attended the meetings and testified. The CRC made a number of recommendations,
including reducing the number of council members from six to three members,
establishing three residency districts, and requiring nomination and election ofthe
council members in an at-large countywide election. The CRC published detailed
findings identifying the "problems with the existing Charter" and the proposed
recommendations. The CRC found that a council with six members resulted in greater
expense and delay, reduced accountability, undermined public confidence, and resulted
in council members being unresponsive to residents outside their district. The findings
state, in pertinent part:
Finding 1. Number of Council Members:
1. A membership ofsix on the County's governing Council has resulted in
greater expense than originally anticipated, in part because ofthe
increasing expense of personnel benefits, but also because of greater
overhead costs of office space, computer systems and staff support
time . . . .
2. A membership of six on the County's governing Council has resulted in
the creation of closed committees of that body which has damaged public
confidence in the transparency of County governance .... Due to the
limits set forth in the Open Meetings Act, a meeting of any two members
of a three-person Council constitutes an official meeting .... A legislative
body ofthree results in all Council business being held in open meetings,
providing for greater transparency to the citizens.
3. The Commission finds logically that the ability to make decisions in a
group of three is more efficient than with six members [T]he potential
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of deadlocked votes and extra time needed for decisions has been
frustrating to the public and even to some sitting Council members.
5. The nature of six part-time Council members from six districts, being
oriented and guided in their jobs by an Administrator, has led to a
leadership accountability vacuum resulting in inefficiency in county
government and confusion about the role of Council members. (See also
Finding 2 relating to countywide elections and Finding 5 relating to
substituting a subordinate manager for a separate administrative branch.)
7. The Commission believes that fewer Legislative positions will
encourage greater competition in races, resulting in fewer uncontested
races and more choices for voters.
9. There is a strong and well-understood tradition in Washington State,
founded on the State Constitution (Article XI, Section 4) and practiced in
San Juan County since its founding, that three elected legislators can
represent the citizens and function in an efficient and just manner and
bring the County together as a whole.
10. Under the current six-member Council system, three members can
meet privately with staff and administrative personnel. This is because
three members do not constitute a quorum of the Council. Nevertheless,
the same three members, while not constituting a quorum, can block any
action by the Council. This obstructive capacity is not possible with a
three-member Council (see CRC minutes 2/25, Lovel Pratt). The
Commission finds unpersuasive a justification for private meetings that
allow wider latitude for expression by Council members than a public
meeting would allow (see CRC minutes 2/3: Rich Peterson, 2/18: Patty
Miller).
Finding 2. Countywide Elections:
1. The current six-member board, elected initially by district, has resulted
in Council members being unresponsive to those living outside "their
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district," thereby impairing the Council's functions as a whole in
responding to citizens' legitimate concerns ....
2. Countywide elections will provide countywide accountability as all
legislators are responsible to all county electors, thereby making political
accountability and accessibility congruent with the legislators' legal
obligations ....
Finding 3. County Council Residency Districts:
Although the Commission finds that, while countywide elections are
preferable as assuring countywide concern and representation by each
council member, one consequence, if uncured, could be election of all
three council members from the island with the largest population.
Accordingly, Council candidates are required to be nominated from
separate residential districts, delineated in accordance with RCW
36.32.020 that accommodates the unique geographic nature of San Juan
County and proved workable for over a hundred years prior to Charter
adoption.[1]
The CRC proposed three Charter amendments for submission to the voters in
the general election in November 2012. Proposition No. 1 reduced the number of
county council members from six to three and created three residency districts with
unequal populations. The smaller neighboring islands were incorporated into each of
the residency districts. The three residency districts are District 1, San Juan Island and
15 neighboring islands with a population of 7,662; District 2, Orcas Island and 27
neighboring islands with a population of 5,387; and District 3, Lopez Island and Shaw
Island and 19 neighboring islands with a population of 2,720.2
Proposition No. 2 clarified administrative and executive powers. Proposition No.
3 specifically states that all meetings of the county council are subject to the state Open
1 Boldface in original.
2The populations were based on the 2010 census.
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No. 70710-8-1/6
Public Meetings Act of 1971, chapter 42.30 RCW. The voters approved the proposed
Charter amendments.
On December 4, 2012, Michael Carlson, a resident of San Juan Island; Jerrold R.
Gonce, a resident of Lopez Island; and Jeffrey Bossier, a resident of Orcas Island
(collectively Carlson), filed a complaint for declaratory and injunctive relief against San
Juan County and the State of Washington. Carlson alleged Proposition No. 1 and the
statutes that allow unequal size residency districts for island counties of less than
35,000 violated equal protection; due process; and article I, section 12 and article I,
section 19 of the Washington State Constitution. Carlson also alleged the ballot title for
the three propositions violated Washington State Constitution article II, section 19, the
subject-in-title and single-subject rule; and did not comply with former article 8, section
8.31(3) (2005)3 of the San Juan Charter.
The County filed an answer asserting a number of affirmative defenses. The
County alleged that as a home rule charter county, it had the authority under article II,
section 4 "to nominate and elect its county council members in at-large elections from
the voting district - the entire county - and provide that each council member shall be
qualified for office by residency in one ofthree unequal size 'residency districts.'" The
County asserted thatthe delay in seeking judicial review ofthe alleged failure to comply
with the procedural requirements offormer section 8.31(3) ofthe Charter was "barred
by the doctrine of laches." The County also asserted Carlson failed to name necessary
parties, failed to exhaust administrative remedies, and waiver.
3Section 8.31(3) of the Charter was amended in the November 2012 election.
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No. 70710-8-1/7
The County filed a motion to dismiss for failure to name necessary parties. The
court allowed Carlson to file an amended complaint naming the six current council
members, Patty Miller, Richard Peterson, Jamie Stephens, Robert Jarman, Marc
Forlenza, and Rick Hughes; and the candidates for election to the three new council
member positions, Jaime Stephens, Robert Jarman, Marc Forlenza, Rick Hughes, Lisa
Byers, Gregory Ayers, Lovel Pratt, and Brian McClerren.4
Carlson, the County, and the State filed cross motions for summary judgment.
The court denied the County's motion to dismiss the procedural challenge to Proposition
No. 1 under former article 8, section 8.31 as barred by the doctrine of laches. The court
granted summary judgment dismissal of the complaint for declaratory and injunctive
relief.
Carlson appealed. The County cross appealed denial ofthe motion to dismiss.
The Supreme Court denied Carlson's motion for accelerated review and injunctive relief
and transferred the appeal to this court.
ANALYSIS
Carlson contends Proposition No. 1 and the statutes that authorize residency
districts of unequal population, RCW 36.32.020 and RCW 36.32.040(2), violate equal
protection and substantive due process; and article I, section 12 and article I, section 19
of the Washington State Constitution. Carlson also contends the Proposition No. 1
ballot title violates article II, section 19, the subject-in-title rule; and that Proposition No.
1 does not comply with former section 8.31 of the San Juan Charter.
4Stephens and Pratt aligned with the County and the State. Peterson, Forlenza, and Ayers
chose to participate as additional plaintiffs. Miller, Jarman, Hughes, Byers, and McClerren "expressed no
preference for being aligned with Plaintiffs or Defendants]."
No. 70710-8-1/8
We review summary judgment de novo. Citizens for Responsible Wildlife Mqtnt.
v. State, 149 Wn.2d 622, 630, 71 P.3d 644 (2003). Constitutional challenges are
questions of lawthat we review de novo. Amunrud v. Bd. of Appeals, 158 Wn.2d 208,
215, 143 P.3d 571 (2006). We presume a statute is constitutional, and the challenging
party "bears the burden of establishing a statute's unconstitutionality beyond a
reasonable doubt." Euaster v. State. 171 Wn.2d 839, 843, 259 P.3d 146 (2011).
Proposition No. 1 amended the Charterto reduce the number of county council
members from six to three members, each residing in a separate unequal size district
and nominated and elected in an at-large countywide election.
The San Juan County "Voters' Pamphlet" set forth Proposition No. 1 as follows:
Proposition No. 1
San Juan County
Concerns charter amendments to reduce the number of County Council
members from 6 to 3
The San Juan County Charter Review Commission has proposed charter
amendments to reduce the number of Council members. This measure
would reduce the County Council from six (6) members nominated and
elected by district to three (3) members, each residing in a separate
district but nominated and elected by the entire County. This measure
also includes technical revisions and clarifications to the charter and a
transition plan that provides for implementation at special elections in April
2013.
Should this proposal be:
[ ] Approved
[ ] Rejected.
The "Explanatory Statement" in the Voters' Pamphlet stated, in pertinent part:
The County Council is the legislative authority of the County. If adopted,
this proposal will reduce the size of the County Council from 6 members to
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No. 70710-8-1/9
3 members and change voting provisions to be consistent with this
number.
This proposal also changes the process for nominating and electing
Council members. Under the current charter, Council members are
qualified by residing in a district and each is nominated and elected by the
voters within the district. As proposed, each Council member will be
nominated in a primary election by voters of the entire County and then
elected by voters of the entire County. As proposed, Council members
are qualified by residing in one of three districts, called "residency
districts." The three residency districts consist of the following ferry-
served islands and also smaller islands nearby: 1) San Juan Island, 2)
Orcas Island, and 3) Lopez/Shaw Islands.
The text of the San Juan Home Rule Charter amendments in the Voters'
Pamphlet for Proposition No. 1 shows the proposed changes by striking through the
then-current language ofthe Charter and underlining the proposed amendments. The
text of the Voters' Pamphlet stated, in pertinent part:
Section 4.20 - Qualifications: Residency for County Council Member
Each county officer holding an elective office shall be, at the time of
appointment or filing a declaration ofcandidacy for election, at the time of
election, . . . must bo rosidento of tho County and registered voters of the
Hir.trint frnm whir.h thny nrn nominated reside in the district to which he or
she seeks or holds office at the time of appointment or filing a declaration
of candidacy for election, at the time of election and at all times while
holding office ....
Section 4.30 - Legislative Body Residency Districts
(1) The six (6) three (3) Legislative Residency Districts shall be
designated as Residency District 1, Residency District 2, and Residency
District 3 . . . .
(a) The Each Residency Districts [sic] shall consist of. ..
whole Islands and nearly contiguous Islands as authorized bv RCW
36.32.020.
(b) The tftttia4 Legislative Residency districts are established
to include whole islands and the existing precincts ....
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Section 4.32 - Legislative Body - Nominations
Qualified voters of each district the County shall nominate
candidates for the Legislative Body. Such candidates shall be nominated
by countywide primary election for non-partisan office in the same manner
as candidates for other County offices. (RCW 36.32.040).t5'
Chapter 36.32 RCW requires counties that have not adopted a home rule charter
to establish a three-member board of commissioners. RCW 36.32.010. RCW
36.32.020 requires each county to create three commissioner districts with "as nearly as
possible" one-third ofthe population, but expressly allows island counties with a
population of less than 35,000 to establish commissioner residency districts without
regard to population. RCW 36.32.020 states, in pertinent part:
The board of county commissioners of each county shall divide their
county into three commissioner districts so that each district shall
comprise as nearly as possible one-third of the population ofthe county
However, the commissioners of any county composed entirely of
islands and with a population of less than thirty-five thousand may divide
their county into three commissioner districts without regard to population,
except that if any single island is included in more than one district, the
districts on such island shall comprise, as nearly as possible, equal
populations.
RCW 36.32.040(2) requires countywide nomination and election of commissioner
candidates. RCW 36.32.040(2) states:
Where the commissioners of a county composed entirely of islands with a
population of less than thirty-five thousand have chosen to divide the
county into unequal-sized commissioner districts pursuant to the exception
provided in RCW 36.32.020, the qualified electors ofthe entire county
shall nominate from among their own numberwho reside within a
commissioner district, candidates for the office of county commissioner of
such commissioner district to be voted for at the following general election.
Such candidates shall be nominated in the same manner as candidates
for other county offices are nominated in all other respects.
5 Boldface and some alterations in original.
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No. 70710-8-1/11
The State and County contend the court should not address the constitutional
challenges to RCW 36.32.020 and RCW 36.32.040(2) because as a home rule charter
county under article XI, section 4, the County has the authority to adopt unequal size
residency districts.
Article XI, section 4 gives a home rule charter county broad independent power
to govern the election process. Article XI, section 4 (amendment 21) provides, in
pertinent part:
Any county may frame a "Home Rule" charter for its own
government subject to the Constitution and laws of this state ....
Any home rule charter proposed as herein provided, may provide
for such county officers as may be deemed necessary to carry out and
perform all county functions as provided by charter or by general law ....
The terms of all elective officers . . . who are in office at the time of
the adoption of a Home Rule Charter shall terminate as provided in the
charter.
It is well established that a home rule charter county has "the right to conduct
their purely local affairs without supervision by the state, so long as they abided by the
provisions ofthe constitution and did not run counter to considerations of public policy of
broad concern, expressed in general laws." State ex rel. Carroll v. King County, 78
Wn.2d 452, 457-58, 474 P.2d 877 (1970) (holding a home rule charter county could
hold elections at a different time than specified by state statute). However, because the
CRC and Proposition No. 1 explicitly cite and rely on the statutory authorization under
RCW 36.32.020 and RCW 36.32.040, we address the constitutional challenges to the
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No. 70710-8-1/12
statutes.6
Equal Protection
Carlson contends Proposition No. 1 and RCW 36.32.020 and RCW 36.32.040
violate the fundamental constitutional right to vote. Carlson argues the disproportionate
6The CRC findings expressly stated, in pertinent part:
Finding 2. Countywide Elections:
8. We are advised and therefore find that countywide elections meet all the statutory and
Constitutional requirements for equal protection (see RCW 36.32.040 (2) and
memorandum from San Juan County Prosecuting Attorney Randall Gaylord, April 19,
2012).
Finding 3. County Council Residency Districts:
Although the Commission finds that, while countywide elections are preferable as
assuring countywide concern and representation by each council member, one
consequence, if uncured, could be election of all three council members from the island
with the largest population. Accordingly, Council candidates are required to be
nominated from separate residential districts, delineated in accordance with RCW
36.32.020 that accommodatesthe unique geographic nature of San Juan County and
proved workable for over a hundred years prior to the Charter adoption. The Prosecuting
Attorney advises that under constitutional decision to date, the disparity of population
between districts does not result in an unconstitutional allocation of either voting power or
representation, as voting is countywide and every voter, regardless of district, has equal
influence on the outcome of elections (again, see RCW 36.32.040 and memorandum
from San Juan County Prosecuting Attorney Randall Gaylord, April 19, 2012).
(Emphasis added, boldface in original.)
The Proposition No. 1 amendments setforth in the Voters' Pamphlet stated, in pertinent part:
Section 4.30 - Legislative Body Residency Districts
(1) The ... three (3) Legislative Residency Districts shall be designated as
Residency District 1, Residency District 2, and Residency District 3
(a) ... Each Residency Districts [sic] shall consist of. .. whole Islands
and nearly contiguous Islands as authorized bv RCW 36.32.020.
Section 4.32 - Legislative Body - Nominations
Qualified voters of... the County shall nominate candidates for the Legislative Body.
Such candidates shall be nominated bv countywide primary election for non-partisan
office in the same manner as candidates for other County offices. (RCW 36.32.040).
(Emphasis and boldface in original.)
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No. 70710-8-1/13
residency districts dilute the fundamental constitutional right to vote. Carlson contends
the creation of unequal residency districts violates equal protection and is subject to
strict scrutiny.
Section 1 of the Fourteenth Amendment to the United States Constitution
provides that "[n]o state shall. . . deny to any person within its jurisdiction the equal
protection of the laws." The federal equal protection clause extends to the states and
their subdivisions. Avery v. Midland County, 390 U.S. 474, 479, 88 S. Ct. 1114, 20 L.
Ed. 2d 45 (1968). "The equal protection clause requires that all citizens be permitted to
participate equally in the election process." Story v. Anderson, 93 Wn.2d 546, 549, 611
P.2d 764 (1980).
"[Vjoting is ofthe mostfundamental significance under our constitutional
structure." Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.
Ct. 983, 59 L. Ed. 2d 230 (1979). However, the right to vote in any manner is not
absolute. Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S. Ct. 533, 93 L.
Ed. 2d 499 (1986); see Carroll, 78 Wn.2d at 457-58. States play an active role in
structuring and regulating their own elections. See Tashiian v. Republican Party of
Conn., 479 U.S. 208, 217, 107 S. Ct. 544, 93 L. Ed. 2d 514 (1986); Storer v Brown, 415
U.S. 724, 730, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974).
Election laws invariably impose some burden upon individual voters. Anderson v
Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). Regulations
govern the registration and qualifications of voters, the selection and eligibility of
candidates, or the voting process itself, inevitably affecting, at least to some degree, the
right to vote. Anderson, 460 U.S. at 788. Therefore, subjecting all voting regulations to
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No. 70710-8-1/14
strict scrutiny and requiring that the regulations be narrowly tailored to advance a
compelling state interest may interfere with the state's ability to regulate their own
elections. See Anderson, 460 U.S. at 788; Storer. 415 U.S. at 730. Although "laws that
affect candidates always have at least some theoretical, correlative effect on voters
not every limitation or incidental burden on the exercise of voting rights is subject to a
stringent standard of review." Bullock v. Carter, 405 U.S. 134, 143, 92 S. Ct. 849, 31 L.
Ed. 2d 92 (1972). In considering an equal protection challenge to an election law, the
court must determine the extent a challenged regulation directly infringes on Fourteenth
Amendment rights. Anderson, 460 U.S. at 789; Tashiian, 479 U.S. at 213-14.
Absent evidence that an election plan dilutes voting strength of an identifiable
group or results in invidious discrimination, the United States Supreme Court has
consistently rejected equal protection challenges and upheld unequal residency districts
where the candidates are nominated and elected in an at-large election.
In Fortson v. Dorsev, 379 U.S. 433, 85 S. Ct. 498, 13 L. Ed. 401 (1965), voters
challenged a Georgia statute that allowed for the creation of some candidate residency
districts but required countywide election of state senators. Fortson, 379 U.S. at 434-
35. Voters from multimember districts argued their votes were not equal in weight to
voters in single-member constituencies. Fortson, 379 U.S. at 435-36. The Court
rejected the equal protection challenge. The Court held that "[t]he statute uses districts
in multi-district counties merely as the basis of residence for candidates, notfor voting
or representation." Fortson, 379 U.S. at 438.
It is not accurate to treat a senator from a multi-district county as the
representative of only that district within the countywherein he
resides. .. . [Sjince his tenure depends upon the county-wide electorate
he must be vigilant to serve the interests of all the people in the county,
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No. 70710-8-1/15
and not merely those of people in his home district; thus in fact he is the
county's and not merely the district's senator.
Fortson, 379 U.S. at 438.
In Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656 (1967), voters
challenged a city charter provision that called for at-large elections but imposed a
residency requirement for 7 of the 11 city council positions. Dusch, 387 U.S. at 114.
The largest ofthe seven residency districts had a population of 29,048 and the smallest
just 733. Dusch, 387 U.S. at 117 n.5. The Court followed the reasoning in Fortson and
upheld the residency requirements, holding a council member elected at large must
serve the interests of the entire electorate, not merely his or her residency district.
Dusch, 387 U.S. at 115-16.
In Dallas County v. Reese, 421 U.S. 477, 95 S. Ct. 1706, 44 L Ed. 2d 312
(1975), the Court upheld an election system that provided for at-large elections of
county commissioners but required a member be elected from each of four unequal
residency districts. Dallas County, 421 U.S. at 477-78, 479. Citing Fortson and Dusch,
the Court reiterated the "basic teaching that elected officials represent all of those who
elect them, and not merely those who are their neighbors." Dallas County, 421 U.S. at
480. The Court determined that to establish the unconstitutionality of such an election
plan, the challenge must be "based on findings in a particular case that a plan in fact
operates impermissibly to dilute the voting strength of an identifiable element of the
voting population." Dallas County, 421 U.S. at 480.
Carlson does not attempt to distinguish these controlling Supreme Court cases.
Nor does Carlson present any evidence that Proposition No. 1 or RCW 36.32.020 and
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No. 70710-8-1/16
RCW 36.32.040 impermissibly diluted the voter strength of an identifiable element of the
voting population or resulted in discrimination.
Instead, Carlson asserts that the unequal populations of the residency districts
dilutes the rights of the voters by greatly increasing the likelihood that a resident of the
smaller Lopez/Shaw district would serve on the council. But the direct impact of the
residency requirements is on an individual's right to be a candidate, not on the right to
vote. Carlson also relies heavily on Story as "the most analogous case to the present
matter." Story does not support the argument that the disproportionate residency
districts violate equal protection.
In Story, our Supreme Court followed the decision in Reynolds v. Sims, 377 U.S.
533, 84 S. Ct. 1362, 12 L. Ed.2d 506 (1964), in holding that a primary election system
where commissioners were nominated from unequal island-based residency districts
resulted in impermissible "voting strength" in the primary election. Story, 93 Wn.2d at
547-49. In Reynolds, the Court established the principle of "one person, one vote,"
requiring that state voting districts must have "substantial equality of population" and
must not dilute voting rights of a racial or political minority. Reynolds, 377 U.S. at 578-
79. In distinguishing the Supreme Court decisions in Dusch and Dallas County, the
Court in Story emphasized that "[i]t is this primary election system and not the residency
requirement, which causes unequal representation under the Island County scheme."
Story, 93 Wn.2d at 552-53.
In Dusch and Dallas County, as in the present case, the election schemes
imposed a residency requirement, and specified that each of the elected
county officers must live in a different district of the county. The court held
in these cases that such a scheme was not unconstitutional because the
districts were used "merely as the basis of residence for candidates, not
for voting or representation." Dusch,f 387 U.S.] at 115; Dallas Countv.f
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No. 70710-8-1/17
421 U.S.] at 479-80. However, the Island County election scheme differs
from the Dusch and Dallas County schemes in that it establishes a
primary election system in which the districts are used for voting. It is this
primary election system and not the residency requirement, which causes
unequal representation under the Island County scheme. The single-
district primary system combines with the inequality of population among
the districts to confer a disproportionate voting strength on the residents of
district three.
Story, 93 Wn.2d at 552-53.7
Here, as in Dusch and Dallas County, we reject the equal protection challenge to
the approval of Proposition No. 1 by the voters in 2012 and the residency districts
authorized by RCW 36.32.020 and RCW 36.32.040. Neither Proposition No. 1 nor the
statutes violate equal protection.8
Article I. Section 12
Carlson claims Proposition No. 1 and RCW 36.32.020 and RCW 36.32.040
violate the privileges and immunities clause of article 1, section 12 of the Washington
State Constitution. The privileges and immunities clause of the Washington State
Constitution is more protective of the right to vote than the Fourteenth Amendment
equal protection clause of the United States Constitution. Grant County Fire Prot. Dist.
No. 5 v. City of Moses Lake, 150 Wn.2d 791, 811, 83 P.3d 419 (2004).
7 (Emphasis in original, internal quotation marks omitted.) The other apportionment cases
Carlson cites address the "one person, one vote" principal under Reynolds and are inapposite. See
Lucas v. Forty-Fourth General Assembly. 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964); WMCA.
Inc. v. Lomenzo. 377 U.S. 633, 84 S. Ct. 1418, 12 L Ed. 2d 568 (1964).
8 In 1990, the Office of the Attorney General issued a formal attorney general opinion (AGO)
addressing the constitutionality of the County's then-current commissioner election system as authorized
by RCW 36.32.020 and RCW 36.32.040(2). 1990 Op. Att'y Gen. No. 6. Although not binding, a formal
AGO is persuasive and " 'entitled to great weight.'" Five Corners Family Farmers v. State, 173 Wn.2d
296, 308, 268 P.3d 892 (2011) (quoting Seattle Bldg. & Constr. Trades Council v. Apprenticeship &
Training Council, 129 Wn.2d 787, 803, 920 P.2d 581 (1996)). Citing Fortson, Dusch, Dallas County, and
Story, the AGO concluded the statutes that allowed residency districts of unequal population and at-large
primary and general elections were constitutional under both the federal and state constitutions. 1990
Op. Att'y Gen. No. 6, at 9.
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Article I, section 12 provides:
No law shall be passed granting to any citizen, class of citizens, or
corporation other than municipal, privileges or immunities which upon the
same terms shall not equally belong to all citizens, or corporations.
"For a violation of article I, section 12 to occur, the law, or its application, must
confer a privilege to a class of citizens." Grant County, 150 Wn.2d at 812. The right to
vote is a privilege implicating article I, section 12. Madison v. State, 161 Wn.2d 85, 95,
163 P.3d 757 (2007). But because residency districts do not infringe on the right to vote
or the right to participate in an election, article I, section 12 is not implicated. All County
residents have an equal right to nominate and elect council members, and all eligible
residents may seek office.9
Article I. Section 19
Carlson claims Proposition No. 1 and the statutes violate article I, section 19 of
the state constitution. Article 1, section 19 provides, "All Elections shall be free and
equal, and no power, civil or military, shall at any time interfere to prevent the free
exercise of the right of suffrage."
The Washington Supreme Court has "historically interpreted article I, section 19
as prohibiting the complete denial ofthe right to vote to a group of affected citizens."
Euoster, 171 Wn.2d at 845. Because Proposition No. 1 does not deny the right to vote
in council elections, article I, section 19 is not implicated.
Carlson's reliance on Foster v. Sunnvside Valley Irrigation District, 102 Wn.2d
395, 687 P.2d 841 (1984), is misplaced. In Foster, the owners of subdivided land were
9 Carlson also contends that because other counties are required to have "voting districts be as
equally sized as possible," the residents ofSan Juan County do not enjoy the same privileges and
immunities enjoyed by residents ofother counties. But here, San Juan County comprises a single voting
district.
18
No. 70710-8-1/19
completely denied the right to vote in irrigation board elections even through their lands
were subject to assessments for irrigation water. Foster, 102 Wn.2d at 398. The court
held the landowners could not be excluded entirely from board elections under article 1,
section 19; and giving residents who bore a greater burden of the district's assessments
more voting power would be consistent with article I, section 19. Foster, 102 Wn.2d at
410-11.10
Substantive Due Process
Carlson asserts the unequal residency districts established in Proposition No. 1
and authorized by RCW 36.32.020 and RCW 36.32.040 do not serve a legitimate public
purpose. Substantive due process protects against arbitrary and capricious government
action. Amunrud, 158 Wn.2d at 218-19. Article I, section 3 of the state constitution and
the Fourteenth Amendment of the federal constitution prohibiting the State from denying
due process of law provide equivalent due process protections. Amunrud, 158 Wn.2d
at 216 n.2. Therefore, the analysis under the state and federal constitutions is the
same. Hardee v. Dep't of Soc. & Health Servs., 172 Wn.2d 1, 7 n.7, 256 P.3d 339(2011).
Nonetheless, Carlson asserts the three-part substantive due process analysis set
forth in Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1990),
applies. But in Amunrud, the Washington Supreme Court notes that this test applies
only in the land use context, and even there its applicability is limited. Amunrud, 158
Wn.2dat226, 226 n.5.
10 Carlson also contends article II, section 43, amendment 74 calls into question the
constitutionality ofRCW 36.32.020 and RCW 36.32.040(2). But article II, section 43, amendment 74
governs redistricting ofstate and congressional voting districts, not residency districts.
19
No. 70710-8-1/20
When considering a constitutional challenge to an election regulation, a court will
apply a "flexible standard," recognizing the need of state and local governments "to
assure that elections are operated equitably and efficiently." Burdick v. Takushi, 504
U.S. 428, 433-34, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992). When the burdens
imposed by the government are " 'severe,'" strict scrutiny applies, and the "regulation
must be 'narrowly drawn to advance a state interest of compelling importance.'"
Burdick, 504 U.S. at 434 (quoting Norman v. Reed. 502 U.S. 279, 289, 112 S. Ct. 698,
116 L Ed. 2d 711 (1992)). "Where non-severe, '[l]esser burdens' on voting are at
stake, we apply 'less exacting review, and a State's important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory restrictions.'" Dudum v.
Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011)11 (quoting Timmons v. Twin Cities Area New
Party, 520 U.S. 351,358, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997)); seee^, Burdick,
504 U.S. 428 (applying this "less exacting review" to election law prohibiting write-in
voting).
While Proposition No. 1 and the statutes authorizing residency districts of
unequal size impose a residency requirement on candidates for the council, it does not
interfere with the right to vote or prohibit eligible residents from seeking office. Under
the "less exacting review," the legitimate interest in reducing costs, increasing the
efficiency and transparency of the council, ensuring compliance with the Open Public
Meetings Act, providing greater accountability, and ensuring geographic diversity on the
council justifies the changes to the San Juan County Home Rule Charter in Proposition
No. 1.
11 Alteration in original.
20
No. 70710-8-1/21
Article II, Section 19
Carlson also asserts that the form of the ballot title of Proposition No. 1 violated
article II, section 19, the single-subject and subject-in-title rule. Article II, section 19
does not apply to Proposition No. 1. By its express terms, article II, section 19 applies
only to the state legislature. Article II, section 19 states, "No bill shall embrace more
than one subject, and that shall be expressed in the title." See also City of Seattle v.
Buchanan, 90 Wn.2d 584, 607, 584 P.2d 918 (1978) (article II, section 19 "applies only
to the legislature").
Carlson's reliance on Washington Federation of State Employees v. State, 127
Wn.2d 544, 901 P.2d 1028 (1995), is misplaced. In Washington Federation, the court
addressed whether statewide initiatives are subject to article II, section 19. Wash.
Fed'n, 127 Wn.2d at 548.
San Juan Charter Former Section 8.31
Carlson also claims Proposition No. 1 violates former section 8.31(3) of the San
Juan County Charter by proposing several unrelated amendments.
Former section 8.31(3) of the Charter stated:
If more than one amendment is submitted on the same ballot, they shall
be submitted in such a manner that people may vote for or against the
amendments separately; provided, an amendment which embraces a
single or inter-related subject may be submitted as a single proposition
even though it is composed of changes to one or more Articles.
State on the Relation of Lowman & Hanford Stationary & Printing Co. v.
Riplinger, 30 Wash. 281, 70 P. 748 (1902), is analogous. In Riplinger, the city charter
provision provided that" 'if more than one amendment be submitted at the same
21
No. 70710-8-1/22
general election the same shall be submitted at such election in such manner that each
proposed amendment may be voted on separately without prejudice to the others.'"
Riplinger, 30 Wn. at 285-86.
In Riplinger, the Washington State Supreme Court held that an amendment
relating to "the library department" that encompassed changes to seven separate
sections of the city charter did not violate the charter's separate amendment rule
because all of the changes related to the amendment's main purpose of restructuring
the way the library was controlled and managed and how it paid its expenses.
Riplinger, 30 Wash, at 282, 286.
It appears evident from the language ofthe amendment that it was the
intention that the new provision, as a whole, should be substituted in lieu
ofthe old provision, as a whole. That being so, the voter was not deprived
of the right to exercise his choice in voting upon the amendment.
Riplinger, 30 Wash, at 286.
Former section 8.31 (3) is similar to article XXIII, section 1 of the Washington
Constitution. Article XXIII, section 1 states that "[i]f more than one amendment be
submitted, they shall be submitted in such a manner that the people may vote for or
against such amendments separately." To constitute multiple amendments within the
meaning of article XXIII, section 1," 'the propositions submitted must relate to more
than one subject, and have at least two distinct and separate purposes not dependent
upon orconnected with each other.'" Farris v. Munro, 99 Wn.2d 326, 331, 662 P.2d
821 (1983) (quoting Gottstein v. Lister, 88 Wash. 462, 470, 153 P. 595 (1915)). Where
an amendment contains multiple proposed changes but all are incidental to the main
object or purpose of the measure, there is no violation of the separate amendment rule.
Gottstein, 88 Wash, at 479.
22
No. 70710-8-1/23
Proposition No. 1 did not violate former section 8.31(3) of San Juan Charter.
Proposition No. 1 addressed the interrelated subject of reducing the number and
election of council members.12
We affirm summary judgment dismissal of the lawsuit.
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WE CONCUR:
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12 Accordingly, we need not address the County's cross appeal.
23