RIGHT TO VOTE OF PERSONS LIVING IN AREA OF CONCURRENT FEDERAL JURISDICTION

RIGHT TO VOTE OF PERSONS LIVING IN AREA OF CONCURRENT FEDERAL JURISDICTION

A resident of Fairchild Air Force Base whereon the state and federal government exercise concurrent jurisdiction, resides in the State of Washington and, if otherwise qualified, may be eligible to vote.

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                                                                     July 8, 1952

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Court House
Spokane 1, Washington                                                                                                              Cite as:  AGO 51-53 No. 343

Attention:  Willard J. Sharpe, Deputy

Dear Sir:

            Receipt is acknowledged of your letter of June 24, 1952, in which you ask our opinion as to the eligibility to vote of persons residing within a government housing project located within the confines of Fairchild Air Force Base.  Your letter indicates that the Air Force site was acquired by the United States in 1941 and is under the concurrent jurisdiction of the United States and the State of Washington.

            It is our conclusion that persons residing within the housing project on Fairchild Air Force Base are within the State of Washington and may be eligible to vote if otherwise qualified.

                                                                     ANALYSIS

            Your letter indicates that the State of Washington and the United States government exercise concurrent jurisdiction over the area in question.  This type of jurisdiction distinguishes this area from some other military reservations  [[Orig. Op. Page 2]] which have been held to be exclusive federal territory.  Thus, the Fort Lewis Military Reservation was held by our supreme court inConcessions Company v. Morris, 109 Wash. 46, 186 Pac. 655, to be a distinct sovereignty.  The court there said:

            "* * * A territory has been created which resembles that of the District of Columbia, the only reservation being that the state of Washington can serve civil and criminal process therein on actions arising outside the reservation."

            In that case the State of Washington had ceded jurisdiction to the United States.  Some other military reservations have been acquired pursuant to Article I, section 8 of the federal constitution which provides for exclusive federal jurisdiction.  It is assumed that the property in question was acquired by the federal government subsequent to the passage of chapter 126, Laws of 1939 (RCW 37.04.410, et seq.) whereby the state announced its policy of ceding only concurrent jurisdiction to areas acquired by the federal government and expressly reserves such jurisdictional authority over lands acquired or to be acquired by the federal government as is not inconsistent with the jurisdiction ceded to the United States by virtue of such acquisition.  Such land, in our opinion, continues to be state territory simply because it has not been acquired by the federal government under any circumstances which will divest the state of general jurisdiction.  Therefore, a person, if he meets other requirements, may become a voting resident of the State of Washington by residing in such an area.

            However, the determination of whether a person living on that area is entitled to vote must depend on some other considerations.  Article VI, section 4, of our constitution provides:

            "For the purpose of voting and eligibility to office, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while in the civil or military service of the state or of the United States, nor while a student at any institution of learning, nor while kept at public expense at any poorhouse or other asylum, nor while confined in public prison, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas."

             [[Orig. Op. Page 3]]

            Under this constitutional provision the mere presence of an airman in this state living upon a military reservation is not in itself sufficient to give him voting residence.  Our Supreme Court, however, has held that a military person may acquire residence in this state by facts independent of his presence for military purposes.  In the case ofKankelborg v. Kankelborg, 199 Wash. 259, 190 P. (2d) 1018, our Supreme Court said:

            "An officer or a private may acquire a domicile outside his military or naval station, the fact of change being established by independent evidence.  Ex parte White, 228 Fed. 88.

            "'If a soldier stationed at any army post is permitted to live outside the post, it was held inIn re Cunningham, 45 Misc. Rep. 206 (91 N.Y. Supp. 974), such person may acquire a domicile there.  There seems to be no doubt that a soldier may acquire a new domicile apart from the army, and the fact that he cannot stay in the new home if called away to the army does not prevent his forming the animus manendi and acquiring the domicile there.'  Harris v. Harris, 205 Iowa 108, 215 N.W. 661."

            In determining whether a person residing in the housing area of Fairchild Air Force Base has acquired a voting residence it is necessary not only to consider the fact that he is residing in the State of Washington, but also to consider whether there is independent evidence that he has established residence in this state by an intent to make this state his home.

            To summarize, it is our opinion that the housing area of Fairchild Air Force Base is a part of the State of Washington and a person who resided there with an intent to make Washington his permanent domicile may be qualified to vote, although a person who is there simply on military duty with no intent of remaining permanently does not acquire a voting residence in this state.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General