ELECTIONS ‑- CITIES AND TOWNS ‑- RESIDENTIAL QUALIFICATIONS OF ELECTORS OF AREA ANNEXED WITHIN THIRTY DAYS OF ELECTION

ELECTIONS ‑- CITIES AND TOWNS ‑- RESIDENTIAL QUALIFICATIONS OF ELECTORS OF AREA ANNEXED WITHIN THIRTY DAYS OF ELECTION.

The fact that an area has been annexed to a city or town within thirty days of said city or town election does not affect residential qualifications of electors of annexed area.

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                                                                   March 6, 1952

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                 Cite as:  AGO 51-53 No. 248

Dear Sir:

            By letter of February 29, 1952, you ask our opinion on the following question:

            "Is an elector residing in an area annexed to a city or town eligible to cast a ballot at said city or town election when such annexation takes place less than thirty days prior to said election?"

            It is our conclusion that:

            A qualified elector of an area which has been annexed to a city or town may vote at the election of such city or town even though the annexation takes place less than thirty days prior to said election.

                                                                     ANALYSIS

            One of the qualifications of voters as prescribed by Article VI, section 1 of the Washington State Constitution, as amended by the 5th Amendment, is that:

             [[Orig. Op. Page 2]]

            "* * * theyshall have lived in the state one year, and in the county ninety days, andin the city, town, ward or precinct thirty days immediately preceding the election at which they offer to vote; * * *"  (Emphasis supplied.)

            This provision has never been construed by our State Supreme Court in its application to the situation involved in your inquiry, nor have we found any cases from other jurisdictions in which the exact question was presented.

            With reference to the general intent and objective of such provisions, however, it has been stated that:

            "* * * The purpose of such a provision is twofold:  (1) It constitutes an invaluable protection against fraud through colonization and the inability to identify persons offering to vote; and (2) it further affords some surety that the voter has in fact become a member of the community and that, as such, he has a common interest in all matters pertaining to its government and is therefore more likely to exercise his right intelligently."  18 Am.Jur. 217, Elections, § 56.

            And to the same effect seePeople v. Graham, 267 Ill. 426, 108 N.E. 699.

            It would appear, therefore, that the requirement that a prospective voter shall have lived in the city or town thirty days immediately preceding the election was intended to be directed at some affirmative conduct on the part of the voter in relation to the geographical location of his place of residence.

            We do not believe that the intent and purpose of this constitutional provision requires such a strict construction as will disfranchise all of the residents of the annexed area in the situation presented by you simple because that area, although within the city boundaries at the time of the election, had not been designated as within the city boundaries for a period of thirty days.

            In the case ofGibson v. Wood, 105 Ky. 740, 49 S.W. 768, the court had under consideration a provision of the city charter of Louisville requiring certain officers of the city to have resided in the city three years preceding their election.  The officer involved in the case had resided for more than three years in the suburb of Enterprise, which was annexed to the city within three years of the election.

             [[Orig. Op. Page 3]]

            In discussing the question, the court referred to the requirement of the Federal Constitution that only a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution should be eligible to the office of president, saying:

            "* * * Can it be claimed that a person born in the republic of Texas prior to its admission into the Union is ineligible to the presidency of the United States for that reason?  We do not believe such a construction can be reasonably contended for."

            In holding that the officer's residence prior to annexation should be counted in determining his residential qualification for eligibility to the Louisville office, the Kentucky court said:

            "* * * In my opinion, when the city of Louisville annexed the town of Enterprise, it adopted the conditions then existing in the town of Enterprise, as to residence and citizenship, as a part of the city government, and former citizens of the town of Enterprise, who thus became citizens of the city of Louisville, were entitled to all their rights, as former citizens of Enterprise, in determining their eligibility to office in the city of Louisville.  When the defendant and his territory became parts of the city of Louisville, they are entitled to all the benefits that belong to all the other property and citizens of the city of Louisville.  * * *"

            TheGibson v. Wood case was followed and reaffirmed by the Kentucky court inMeffert v. Brown, 132 Ky. 201, 116 S.W. 779.  The California court in Lindsey v. Dominguez, 217 Cal. 533, 20 P. (2d) 327, cited theGibson v. Wood case in support of the following statement:

            "* * * For example, it seems to be generally conceded that where a candidate does not change his residence, and the district boundaries are so gerrymandered as to annex his residence to a new district, he may nevertheless use such period of residence as part or all of the requisite period to qualify him for office in the new territory.  * * *"

             [[Orig. Op. Page 4]]

            TheGibson v. Wood case was also followed by the Michigan court inAttorney General v. McColeman, 144 Mich. 67, 107 N.W. 869, where it was said:

            "* * * The argument that the qualified electors of Atkinson township were disfranchised because they had not for 20 days been inhabitants of the township of Iron River is without force.  They had been residents of theterritory comprising the township of Iron River.  * * *"  (Emphasis supplied.)

            We are of the opinion that in applying the constitutional provision herein under consideration the voting qualifications of residents of the annexed area are to be determined on the same basis as those of residents of the original territory of the city or town.  We therefore advise, that an otherwise qualified elector of an area annexed to a city or town is eligible to cast his ballot at said city or town election even though the annexation has taken place less than thirty days prior to said election.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General