CONSTITUTIONAL LAW ‑- EQUAL PROTECTION CLAUSE OF FEDERAL CONSTITUTION ‑- 'ONE MAN ONE VOTE PRINCIPLE' ‑- FORTY PERCENT VOTER REQUIREMENT OF 17TH AMENDMENT TO STATE CONSTITUTION

CONSTITUTIONAL LAW ‑- EQUAL PROTECTION CLAUSE OF FEDERAL CONSTITUTION ‑- "ONE MAN ONE VOTE PRINCIPLE" ‑- FORTY PERCENT VOTER REQUIREMENT OF 17TH AMENDMENT TO STATE CONSTITUTION.

(1) The "forty per centum" voter requirement contained in Amendment 17 to our state constitution (establishing the forty-mill property tax limitation) does not conflict with the "one man one vote" principle enunciated by the United States supreme court in its recent decisions applying the equal protection clause of Amendment 14 to the United States constitution in cases involving congressional and legislative apportionment.

(2) The "forty per centum" voter requirement does not conflict with the "silent minority" quorum determination rule of the United States House of Representatives which was upheld by the supreme court in United States v. Ballin, 141 U.S. 1 (1892).

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                                                                   April 12, 1966

Honorable Robert A. Perry
State Representative, 45th District
1154 North 92nd Street
Seattle, Washington

                                                                                                                Cite as:  AGO 65-66 No. 83

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on questions which we paraphrase as follows:

            (1) Does the "forty per centum" voter requirement contained in Amendment 17 to our state constitution (establishing the forty-mill property tax limitation) conflict with the "one man one vote" principle enunciated by the United States supreme court in its recent decisions applying the equal protection clause of Amendment 14 to the United States constitution in cases involving congressional and legislative apportionment?

            (2) Does this "forty per centum" voter requirement conflict with the "silent minority" quorum determination rule of the United States House of Representatives which was upheld by the supreme court in United States v. Ballin, 141 U.S. 1 (1892)?

             [[Orig. Op. Page 2]]

            We answer both questions in the negative.  Our reasoning is set forth in the following analysis.

                                                                     ANALYSIS

            As you have indicated, Amendment 17 to our state constitution prescribes a "forty-mill limit" on property taxation in this state.  This constitutional provision, which was adopted by the people in 1944,1/ permits property taxes to be levied in excess of this limit only after an appropriate proposition2/ has been submitted to the voters of a taxing district and has been approved by

            ". . . a majority of at least three‑fifths of the electors thereof voting on the proposition . . ."

            at a regular or special election of the taxing district

            ". . . at which election the number of persons voting on the proposition shall constitute not less than forty per centum of the total number of votes cast in such taxing district at the last preceding general election; . . ."

            In other words, in order for an excess tax levy to be authorized pursuant to this constitutional provision, it must be approved by at least three‑fifths (60%) of the electors voting on the proposition at an election where the total number of persons voting on the proposition constitutes not less than forty percent of the total number of votes cast in the particular taxing  [[Orig. Op. Page 3]] district at the last preceding general election.3/   An acknowledged practical consequence of the second of these voter requirements ‑-the "forty per centum" requirement with which you are specifically concerned‑-is that an excess levy proposition may receive approval of well over the requisite three‑fifths (60%) of persons voting on the proposition and yet fail to pass because of insufficient total voter turnout.

            Question (1):

            Your first inquiry is whether this "forty per centum" requirement conflicts with the "one man one vote" principle established by the United States supreme court in the recent congressional and legislative apportionment cases; i.e.,Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964);Davis v. Mann, 377 U.S. 678 (1964); andRoman v. Sincock, 377 U.S. 695 (1964).  See, also,Baker v. Carr, 369 U.S. 186 (1962); andGray v. Sanders, 372 U.S. 368 (1963).  You have expressed your point as follows:

            "The forty percent requirement . . . places the person thatchooses not to use his vote in a preferred position.  He is in a position to nullify the votes of all other persons, even though the sixty per centum requirement has been met."

            Stated in another way, both the forty percent requirement of the 17th Amendment and its companion three‑fifths or sixty percent requirement operate to make it more difficult for proponents of an excess levy proposition to obtain passage of the measure at the polls than it is for the opponents of the proposition to defeat it.  However, we do not believe that this phenomenon conflicts in any way with the "one man one vote"  [[Orig. Op. Page 4]] principle as hereinafter described.

            Briefly stated, our reason for this conclusion is that the forty per cent requirement of Amendment 17 to our state constitution in no way discriminates against any of the voters of a taxing district in consequence of such factors as race, sex, economic or occupational status or, most significantly in relation to the above‑cited decisions,where within the taxing district they happen to live.

            The Meaning of "One Man One Vote"

            Acceptance of the soundness of the foregoing conclusion necessarily requires a full comprehension of the true meaning of "one man one vote."  Because of the considerable public importance of your question, we believe a fairly extensive and detailed discussion of this matter is warranted.

            The logical starting point for a consideration of the meaning of this newly-enunciated rule or doctrine of constitutional law is, of course, the underlying provision of the United States constitution.  In pertinent part, the 14th Amendment to this declaration of "the supreme law of the land"4/ provides that:

            "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."

            The gravamen of this provision is "invidious" discrimination‑- thearbitrary selection and classification of a person or class of persons with a concomitant differentiation in treatment of those within the select class as against others without the class.  See,Minneapolis & St. Louis R. R. v. Beckwith, 129 U.S. 26 (1889), and cases cited therein.  Conversely, rational or reasonable classification is unquestionably permissible, for universal equality is by no means required.  As it was stated by the supreme court inWilliamson v. Lee Optical of Okla. Inc., 348 U.S. 483 (1954),

            ". . . The prohibition of the Equal Protection Clause goes no further than theinvidious discrimination. . . ." (Emphasis supplied.)

            In the landmark case ofBaker v. Carr, supra, the assertion was made by residents of certain state legislative districts in the  [[Orig. Op. Page 5]] state of Tennessee that invidious discrimination was present where a state legislature had failed over the years to react to major shifts of population within the state by reapportioning and redistricting itself in order to maintain a direct and substantial correlation between the population of legislative districts and the number of legislators elected from such districts.  Specifically, these plaintiffs were residents of heavily-populated urban and suburban districts which had no more representation in the legislature than was allotted to many sparsely-populated rural districts in the same state.

            Their complaint was simply that because of this situation their representative voting strength in the legislature was substantially less than that of their rural neighbors5/ solely by reason of where they happened to live‑-and thus the situation amounted toinvidious discrimination.  In the words of the court (369 U.S. 187, 207):

            "Their constitutional claim is, in substance, that the 1901 statute constitutesarbitrary and capricious state action, offensive to the Fourteenth Amendment in itsirrational 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 constitutionallyunjustifiable inequality vis-a-vis voters inirrationally favored counties. . . ." (Emphasis supplied.)

            The supreme court inBaker v. Carr, supra, simply held that this claim was justiciable, and remanded the case to the district court from whence it had come6/ for trial on the merits.  Within a very few months of this decision, however, similar suits had been commenced in many other states,  [[Orig. Op. Page 6]] including our own,7/ in which comparable situations existed.  Because of the procedural posture in which Baker had gone up to the high court, necessitating the disposition aforementioned, it was left for such later cases to become the vehicles for elaboration by the court of the full scope of its constitutional apportionment doctrine.

            Both of the first two post-Baker cases to be decided by the supreme court arose in the state of Georgia and neither was, strictly speaking, a legislative redistricting case.  We note them nevertheless because of the bearing they have on the ultimate doctrine established by the court in this area.

            Gray v. Sanders, 372 U.S. 368 (March 18, 1963), involved the constitutional validity of the Georgia "county unit system."  This system, as described by the court, operated as follows (372 U.S. 368, 370-371):

            "Under Georgia law each county is given a specified number of representatives in the lower House of the General Assembly.  This county unit system at the time this suit was filed was employed as follows in statewide primaries:  (1) Candidates for nominations who received the highest number of popular votes in a county were considered to have carried the county and to be entitled to two votes for each representative to which the county is entitled in the lower House of the General Assembly; (2) the majority of the county unit vote nominated a United States Senator and Governor; the plurality of the county unit vote nominated the others."

            All of this, the court then noted, was without regard to the respective populations of the various counties of Georgia which ranged in inhabitants from 1,876 persons8/ to 556,326 persons.9/

             [[Orig. Op. Page 7]]

            Accordingly, the court invalidated the county unit system, stating its reasons as follows (372 U.S. 368, 379):

            "The Fifteenth Amendment prohibits a State from denying or abridging a Negro's right to vote.  The Nineteenth Amendment does the same for women.  If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote, none could successfully contend that that discrimination was allowable.  See Terry v. Adams, 345 U.S. 461, 97 L.Ed. 1152, 73 S.Ct. 809.  How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county?  Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote‑-whatever their race, whatever their sex, whatever their occupation, whatever their income,and wherever their home may be in that geographical unit.  This is required by the Equal Protection Clause of the Fourteenth Amendment."  (Emphasis supplied.)

            Then, in the final paragraph of its opinion, the supreme court made the statement which‑-at least figuratively (and, perhaps, in some areas, literally as well)‑-rang bells throughout the land.  The court said (372 U.S. 368, 380):

            "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing‑-one person, one vote."  (Emphasis supplied.)

            And so was born "one man one vote," a phrase which has since become the delight of news writers, political scientists, and others writing or speaking of this whole line of cases‑-and which in the process has no doubt acquired a considerable variety of popular connotations.  Read in context, however, it seems clear that in this first case in which it used the phrase the supreme court was simply saying that an elector's vote can no more be weighted by reason of where he happens to live  [[Orig. Op. Page 8]] within a state or political subdivision than it can by reason of his race, sex, occupational or income status.  This true meaning of "one man one vote" has, in our judgment, in no way been altered by any of the subsequent decisions wherein the phrase has been used.

            The second Georgia case post-dating Baker v. Carr, supra, was Wesberry v. Sanders, 376 U.S. 1 (February 1, 1964), a congressional redistricting suit which was brought by residents of the substantially over-populated (under-represented) Fifth Congressional District of Georgia.  The supreme court's decision in this case was significant in two respects: (1) It established a general analytical approach which was later followed in cases involving state legislative malapportionment, and (2) it specifically reiterated the "one man one vote" catch-phrase and applied it as to the crucial relationship between the people and their representative lawmakers.  We quote in material part from the opinion (376 U.S. 1, 7):

            ". . . We agree with the District Court that the 1931 Georgia apportionment grossly discriminates against voters in the Fifth Congressional District.  A single Congressman represents from two to three times as many Fifth District voters as are represented by each of the Congressmen from the other Georgia congressional districts.  The apportionment statute thus contracts the value of some votes and expands that of others.  If the Federal Constitution intends that when qualified voters elect members of Congress each vote be given as much weight as any other vote, then this statute cannot stand.

            "We hold that, construed in its historical context, the command of Art I, § 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicableone man's vote in a congressional election is to be worth as much as another's."  (Emphasis supplied.)

            Notwithstanding that this decision was in fact based upon Article I, § 2 of the United States constitution, requiring that members of the house of representatives in our federal congress be chosen

            ". . . by the people of the several states . . ."

             [[Orig. Op. Page 9]]

            rather than upon the 14th Amendment equal protection clause, it could hardly be doubted that the supreme court's decision in Wesberry had to a large extent ordained the approach the court would take in cases involving state legislative malapportionment ‑-at least in so far as those cases were concerned with state counterparts of the United States House of Representatives.10/   This was so because the key relationship which concerned the court inWesberry‑-that of the people and their representative lawmakers‑-was also present in the "state legislative" cases.

            Unquestionably, it was in the context of this relationship that the supreme court inWesberry applied the "one man one vote" rule‑-as is amply demonstrated by a reading of the final paragraphs of the court's opinion.  In prologue, the court had traced in some detail the history of Article I, § 2, of the United States constitution as it was formulated at the Constitutional Convention of 1789.  Thereupon, the court set forth its construction of the provision as follows (376 U.S. 1, 17-18):

            "It is in the light of such history that we must construe Art I, § 2, of the Constitution, which, carrying out the ideas of Madison and those of like views, provides that Representatives shall be chosen 'by the People of the several States' and shall be 'apportioned among the several States . . . according to their respective Numbers.'  It is not surprising that our Court has held that this Article gives persons qualified to vote a constitutional right to vote and to have their votes counted.  United States v. Mosely, 238 U.S. 383, 59 L.Ed. 1355, 35 S.Ct. 904; Ex parte Yarbrough, 110 U.S. 651, 28 L.Ed. 274, 4 S.Ct. 152.  Not only can this right to vote not be denied outright, it cannot, consistently with Article I, be destroyed by alteration of ballots, see United States v. Classic, 313 U.S. 299, 85 L.Ed. 1368, 61 S.Ct. 1031,  [[Orig. Op. Page 10]] or diluted by stuffing of the ballot box, see United States v. Saylor, 322 U.S. 385, 88 L.Ed. 1341, 64 S.Ct. 1101.  No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.  Other rights, even the most basic, are illusory if the right to vote is undermined.  Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.  In urging the people to adopt the Constitution, Madison said in No. 57 of The Federalist:

            "'Who are to be the electors of the Federal Representatives?  Not the rich more than the the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.  The electors are to be the great body of the people of the United States. . . .'

            "Readers surely could have fairly taken this to mean, 'one person, one vote.'  Cf. Gray v. Sanders, 372 U.S. 368, 381, 9 L.Ed. 821, 83 S.Ct. 801."

            Four months later, on June 15, 1964, the supreme court filed its decisions in the six landmark legislative redistricting cases cited at the outset of this opinion.11/   These six cases were only a few among the many state legislative redistricting cases which had reached the high court on appeal from district courts during the summer and fall of 1963.  They had been commenced, initially, in the states of Alabama, New York, Colorado, Maryland, Virginia and Delaware, and had been carefully selected by the supreme court as the cases most amenable  [[Orig. Op. Page 11]] to serving as vehicles for the logical extension ofBaker v. Carr, supra.

            Of these six cases the lead case was the one from Alabama, Reynolds v. Sims, supra.  In essence, the court decided in this case (and concurred therewith in the companion cases) that,

            ". . . as a basic constitutional standard, the Equal Protection Clause requires that the seats inboth houses of a bicameral legislature must be apportioned on a population basis. . . ."  (377 U.S. 533, 567) (Emphasis supplied.)

            Again, without question, the keynote of the decision was "one man one vote," accord,Gray v. Sanders, supra, and Wesberry v. Sanders, supra.  Yet, as in those forerunner cases, the phrase was simply a catch-phrase symbol for the full "legalistic" ruling of the court.

            At the outset of its opinion in Reynolds, the court summarized the essence of its decisions inGray andWesberry and related them to the state legislative malapportionment problem as follows (377 U.S. 533, 560):

            "Gray and Wesberry are of course not dispositive of or directly controlling on our decision in these cases involving state legislative apportionment controversies.  Admittedly, those decisions, in which we held that, in statewide and in congressional elections, one person's vote must be counted equally with those of all other voters in a State, were based on different constitutional considerations and were addressed to rather distinct problems.  But neither are they wholly inapposite.  Gray, though not determinative here since involving the weighting of votes in statewide elections, established the basic principle of equality among voters within a State, andheld that voters cannot be classified, constitutionally, on the basis of where they live, at least with respect to voting in statewide elections.  And our decision in Wesberry was of course grounded on that  [[Orig. Op. Page 12]] language of the Constitution which prescribes that members of the Federal House of Representatives are to be chosen 'by the People,' while attacks on state legislative apportionment schemes, such as that involved in the instant cases, are principally based on the Equal Protection Clause of the Fourteenth Amendment.  Nevertheless,Wesberry clearly established that the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State."  (Emphasis supplied.)

            Thereupon, the court stated the problem immediately before it as follows:

            ". . . Our problem, then, is to ascertain in the instant cases, whether there are any constitutionally cognizable principles which would justify departures from the basic standard of equality among voters in the apportionment of seats in state legislatures."

            After due consideration, the supreme court determined the issue in the negative, stating (377 U.S. 533, 565):

            "Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State's legislators. . . . Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.  And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.  With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. . . . Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth  [[Orig. Op. Page 13]] Amendment just as much as invidious discriminations based upon factors such as race, . . ."  (Emphasis supplied.)

            Similarly, see the court's statement in the companion New York case ofWMCA, Inc. v. Lomenzo, supra, (377 U.S. 633, 653) as follows:

            ". . . However complicated or sophisticated an apportionment scheme might be, it cannot, consistent with the Equal Protection Clause, result in a significant under-valuation of the weight of the votes of certain of a State's citizens merelybecause of where they happen to reside."  (Emphasis supplied.)12/

            CONCLUSION

            Against the foregoing background, whereby we have attempted to show the true meaning of the phrase "one man one vote" by placing it in the actual context in which it has been used by the supreme court, we may state our reasoning and conclusion as to your first question in syllogistic terms, as follows:

            Major premise:  "One man one vote" simply means that no qualified elector of a state or any political subdivision thereof shall, at any election held by his state or political subdivision, have his vote "weighted" in relation to the vote of any other elector by reason of suchirrelevant factors as race, sex, economic or occupational status,or where within the electoral unit he happens to reside.13/

             [[Orig. Op. Page 14]]

            Minor premise:  The forty per cent requirement of Amendment 17 to our state constitution,supra, does not operate to give any elector in a taxing district, whether he is in favor of or opposed to an excess levy proposition, any voting advantage or disadvantage in consequence of any of these factors; his vote, whether for or against, "weighs" the same no matter what his race or sex, what he does for a living, or where within the district he lives.

            Conclusion:  Therefore, the forty per cent requirement does not conflict with the "one man one vote" principle.

            We have recognized that this requirement, as well as the companion sixty per cent requirement, means that the proponents of an excess levy proposition have a somewhat more difficult "row to hoe" than do the opponents.  However, this consequence would not cause these state constitutional voter requirements to be "invidiously" discriminatory in the absence of a showing that this tipping of the balance in favor of the opponents of such a measure is clearly irrational, arbitrary and capricious.  Williamson v. Lee Optical of Okla., Inc., supra.  The applicable analytical approach and the rule of law are both succinctly spelled out by the supreme court in the following excerpt from its opinion inCrescent Cotton Oil Co. v. Mississippi, 257 U.S. 129 (1921), at 137, as follows:

            ". . . It is clearly settled that any classification adopted by a state . . . which has a reasonable basis, and is therefore not arbitrary, will be sustained against an attack based upon the equal protection of the laws clause of the 14th Amendment, and also that every state of facts sufficient to sustain such classification which can be reasonably conceived of as having existed when the law was enacted will be assumed. . . ."

            It may have been that the framers of the 17th Amendment to our state constitution determined to require a total minimum vote in addition to a three‑fifths majority vote in order to protect the taxable property owners of a district against having their taxes raised as a consequence of passage of an excess levy primarily approved by the nonproperty owning segment of the community.  Or, they may simply have had in mind eliminating an otherwise potential temptation to the proponents of an excess  [[Orig. Op. Page 15]] levy to conduct the levy election with as little publicity or practical convenience as is legally possible‑-hoping to attract to the polls only those persons already aware of and in favor of the proposition.

            In either event, neither the objective nor the means can be said to be unreasonable, or irrational.  Consequently, the classification or "weighting" cannot be regarded as being "invidiously" discriminatory.  Rather, we would regard it simply as the manifestation of a policy determination made by a substantial majority of the voters of this state14/ that property taxes ought to be limited to an annual levy of not in excess of forty mills in the absence of substantial and active popular sentiment to the contrary within a particular taxing district.

            Question (2):

            Your second question also relates to the possibility of an inconsistency between the forty per cent requirement of Amendment 17 to our state constitution,supra, and a ruling of the United States supreme court.  You have identified this ruling as "The Thomas Reed decision . . . on a Silent Minority."

            From our research we surmise your reference to be to the case ofUnited States v. Ballin, 144 U.S. 1 (1892).  By way of prologue, prior to 1890, the view prevailed in the United States House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the house in order to satisfy the constitutional requirement for a quorum.  It was a common practice for the opposition to break a quorum by refusing to vote.

            This was changed in 1890, by a ruling made by Speaker Reed, and later embodied in Rule XV of the house, that members present in the chamber but not voting would be counted in determining the presence of a quorum.  Following the adoption of this rule, a certain bill came before the house for final passage on a day on which, according to a roll call, 212 members of the house‑-more than a quorum at that time‑-were present.  However, only 138 of the members present, constituting less than a quorum, voted on the particular bill, all of them voting "aye."  The remaining 74 members, though present, refused to vote.

             [[Orig. Op. Page 16]]

            The bill in question was declared passed and, subsequently, it was passed by the senate and signed into law by the president.  Thereafter, the litigation above cited was commenced challenging the act on the ground that it had not been legally passed by the House of Representatives.

            The supreme court rejected this challenge, stating (144 U.S. 1):

            "The Constitution provides that 'a majority of each [house] shall constitute a quorum to do business.'  In other words, when a majority are present the House is in a position to do business.  Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present.  All that the Constitution requires is the presence of a majority, and when that majority are present the power of the House arises.

            "But how shall the presence of a majority be determined?  The Constitution has prescribed no method of making this determination, and it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact.  It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count as the sole test; or the count of the Speaker or the clerk, and an announcement from the desk of the names of those who are present.  Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact, and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the House may adopt either or all, or it may provide for a combination of any two of the methods.  That was done by the rule in question; and all that that rule attempts to do is to prescribe a method for ascertaining the presence of a majority, and  [[Orig. Op. Page 17]] thus establishing the fact that the House is in a condition to transact business.

            "As appears from the journal, at the time this bill passed the House there was present a majority, a quorum, and the House was authorized to transact any and all business."

            In short, the supreme court here simply upheld the right of the House of Representatives to adopt any method of determining the presence of a quorum "which shall be reasonably certain to ascertain the fact"‑-including a method whereby the number of members "present but not voting" would be recorded and added to those present and voting on a particular bill.  We cannot perceive that this decision in any manner establishes a mandatory rule of federal constitutional law with which the forty per cent rule of Amendment 17 to our state constitution,supra, could be said to conflict.