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

No. 70710-8-1/3

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 ....

No. 70710-8-1/10

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