Letter Opinion 1971 No. 016

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                                                                 February 2, 1971
 
 
 
Honorable Bruce A. Wilson
State Senator ‑ Second District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 16 (not official)
 
 
Dear Sir:
 
            By letter dated February 1, 1971, you have requested an opinion of this office on the following question:
 
            Does Senate Bill 160 violate the "one man one vote" concept?
 
            We answer this question in the negative for the reasons set forth below.
 
                                                                     ANALYSIS
 
            Under RCW 28A.04.060, members of the state board of education are selected on a position basis by the directors of all of the local school districts situated within each of the state's several congressional districts.  Each director's vote is accorded a number of "electoral points" which equals the number of enrolled students in the director's district.  Senate Bill 160 would not alter this basic method of selection ‑ i.e., by school director rather than by popular vote.  Instead, it would simply alter the formula for computing the "weight" of votes cast by each of the directors.  It would provide, in essence, that each director's vote would be weighted on the following basis:  One thousand students enrolled in the district equals one electoral vote, one thousand and one to five thousand students enrolled equals three electoral votes, and five thousand and one students enrolled equals six electoral votes.
 
            For a general resume of the "one man one vote" doctrine, see AGO 1970 No. 28 [[to James A. Andersen, State Senator and Stewart Bledsoe, State Representative on December 22, 1970]].
 
            The reason that the selection process outlined above does not violate this concept is that it is not a selection of persons by popular election.  Since the choice of members of the state board of education does not involve an election by the populace, the principle of "one man one vote" has no relevancy.
 
            Perhaps the United States Supreme Court case which best explains this proposition is Sailors v. Board of Education, 387 U.S. 105 (1967).  This case involved a Michigan system for selecting members of county school boards which was also basically appointive rather than elective by the populace.  The court described this process as follows:
 
             [[Orig. Op. Page 2]]
            "The delegates from the local school boards, not the school electors, select the members of the county school board.  While the school electors elect the members of the local school boards and the local school boards, in turn, select delegates to attend the meeting at which the county board is selected, the delegates need not cast their votes in accord with the expressed preferences of the school electors.  There is not even a formal method by which a delegate can determine the preferences of the people in his district.  It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate.  The 'electorate' under the Michigan system is composed not of the people of the county, but the delegates from the local school boards."
 
            This same situation exists with regard to Senate Bill 160 in that the "electorate is composed not of the people, but of the delegates from the local school boards."
 
            In Sailors, the court concluded that:
 
            ". . .  Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of 'one man, one vote' has no relevancy."
 
            The recent United States Supreme Court case of Hadley v. Junior College District, 25 L.Ed.2d 45 (1970) further affirms our conclusion regarding Senate Bill 160.  Therein the court said:
 
            ". . .  We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not 'represent' the same number of people does not deny those people equal protection of the laws.  Sailors v. Bd. of Education, 387 U.S. 105, 18 L.Ed.2d 650, 87 S.Ct. 1549 (1967); cf. Fortson v. Morris, 385 U.S. 231, 17 L.Ed.2d 330, 87 S.Ct. 446 (1966).  And a State may, in certain cases, limit the right to vote to a particular group or class of people.  As we said before, '[v]iable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions.  We see nothing in the Constitution to prevent experimentation.'  Sailors, supra,  [[Orig. Op. Page 3]] at 110-111, 18 L.Ed.2d at 654, 655.  But once a state has decided to use the process of popular election and 'once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.'  Gray v. Sanders, 372 U.S. 368, 381, 9 L.Ed.2d 821, 830, 83 S.Ct. 801 (1963)."
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
RICHARD M. MONTECUCCO
Assistant Attorney General