TIME WHEN QUALIFICATION FOR ELECTIVE OFFICES MUST EXIST

OFFICES AND OFFICERS ‑- COUNTY ‑- ELECTIONS ‑- TIME WHEN QUALIFICATION FOR ELECTIVE OFFICES MUST EXIST

(1) In order to be a qualified "elector" in a county within the meaning of RCW 36.27.020, a person must have resided therein for 30 days and be otherwise eligible to be a registered voter, but he could not have actually registered to vote.
 
(2) Under RCW 29.18.030, a person must possess all of the qualifications required by law for the office he is seeking at the time he files his declaration of candidacy.

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                                                                   May 10, 1974

Honorable Anton J. Miller
Prosecuting Attorney
Pacific County
P.O. Box 563
Raymond, Washington 98577                                                                                                               Cite as:  AGLO 1974 No. 55
 
Dear Sir:
 
            By recent letter you have asked what durational residence requirements may exist with respect to the filing of a declaration of candidacy for a county elective office where a statute provides that no person shall be eligible for that office unless he is a "qualified elector" in the county.
 
                                                                     ANALYSIS
 
            In order to respond to this request it will be necessary for us to consider the following two separate legal questions:
 
            (1) What are the requisites of being a "qualified elector" in a county?
 
            (2) When, in point of time, must that status first be in existence in order for a person to be a candidate for election ‑ at the time of filing, the time of the election or the commencement of the term of office to which elected?
 
            Based upon the reasoning of the Washington Supreme Court in Tennent v. Stacy, 48 Wn.2d 104, 291 P.2d 647 (1955), our answer to the first of these questions is that in order to be a "qualified elector" in a county, a person must be eighteen years of age or over and a citizen of the United States, and have resided in the county for at least thirty days.  He need not, however, have actually registered to vote ‑ as would be the case if we were here dealing with the phrase "qualified voter" instead of "qualified elector."  Compare, DeFilipis v. Russell, 52 Wn.2d 745, 328 P.2d 904 (1958), in which the court, in considering the eligibility of an individual to be a candidate for election to the state legislature, held that the term "qualified voter" in Article II, § 7 of  [[Orig. Op. Page 2]] the Washington Constitution1/ means " . . . one possessing the present legal power or capacity to vote.  . . ."; i.e., a registered voter.  But, as indicated by the court in Tennent v. Stacy, supra,
 
            ". . .  To be a qualified voter, one must necessarily be a qualified elector, but the converse is not true."
 
            Two other aspects of the above stated definition of who is a qualified elector in a county should also be briefly explained before we proceed to consider the ensuing question of when that status must exist in the case of a candidate for election to such a county office as you have described.  First, although Article VI, § 1 of the Washington Constitution, in listing the qualifications of electors, continues to speak of the United States citizens ". . . of the age of twnety-one years or over, . . ." that age qualification has obviously been modified downward by Amendment XXVI to the United States Constitution, adopted in 1971, which states that:
 
            "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."
 
            Secondly, the 90-day county durational residence requirement of Article VI, § 1 which was referred to by the court in Tennent v. Stacy, supra, is likewise no longer constitutional in view of the ruling of the United States Supreme Court in Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274, 92 S.Ct. 995 (1972).  Accord, Moen v. Erlandson, 80 Wn.2d 755, 498 P.2d 849 (1972), in which the Washington court, relying upon Dunn, expressed itself as follows:
 
            ". . . the 90-day and the 1-year durational residency requirements specified by Const. art. 6, § 1 and RCW 29.07.070 and 29.07.080 are, per Blumstein, violative of the United States Constitution.  Additionally, we observe in passing that  [[Orig. Op. Page 3]] durational residency requirements of more than 30 days cannot be constitutionally sustained unless it can be clearly demonstrated that they are required by a compelling state interest."2/
 
             It is for this reason that we have above stated that in order to be a "qualified elector" in a county, a person need only have resided therein for thirty days ‑ rather than for ninety days, as was previously required at the time of the court's ruling in Tennent v. Stacy, supra.
 
            With regard to the matter of when this status must come into existence in order for a person to be a candidate for a county office with respect to which only a "qualified elector" is statutorily eligible, we turn to the provisions of § 1, chapter 250, Laws of 1959.  In response to at least two prior "invitations" by the supreme court to indicate, by statute, the initial time at which eligibility for an elective office must exist,3/ the legislature by this enactment amended the text of the statutory declaration of candidacy provided for in RCW 29.18.030 so as to require every candidate for an elective office to declare, at the time of filing, that "I . . . am legally qualified to assume office if elected; . . ."  (Emphasis supplied.)
 
             [[Orig. Op. Page 4]]
            Prior to the legislature's inclusion of this requirement in the declaration of candidacy it was possible to argue that the status of "qualified elector" was not required to exist in the case of a candidate for a county office until the date of the election, cf., Tennent v. Stacy, supra ‑ or even until the commencement of the term of office to which election was sought, as was suggested by this office in OAG 1935-36, page 125 [[to Guy W. Hurd, County Superintendent of Schools, Kelso, Washington on March 21, 1936]].  On the other hand, the majority opinion in DeFilipis v. Russell, supra ‑ based, however, simply upon an apparent agreement on this point by all of the parties ‑ stated that a candidate,
 
            ". . . must be eligible to hold the office at the time he files his declaration to participate in the election process . . ."
 
            Thus, without the legislature's enactment of chapter 250, supra, the issue of when a person must acquire the status of a "qualified elector" in a county in order to be a candidate for county office would, indeed, still be most troublesome.  But because of that 1959 amendment to the statutory declaration of candidacy it is now settled that insofar as such eligibility requirements as this are concerned, they must first be met by a candidate at the time of filing.
 
            Coupling this conclusion with that which we have stated earlier with respect to the meaning of "qualified elector," our ultimate answer to your question, then, is as follows:
 
            In order to be a candidate for election to a county office such as that which you have described, a person must be at least 18 years of age and a United States citizen, and have been a resident of the county for at least thirty days at the time he files his declaration of candidacy.  In addition, of course, he must also at that time possess any other qualifications which may be required with respect to the particular office; e.g., the requirement of RCW 36.27.020 that in order to be eligible to the office of prosecuting attorney in any county, a person must not only be a "qualified elector therein" but, in addition, have been admitted to the practice of law in this state.  But this does not mean, we should hasten to add, that having filed his declaration of candidacy the individual in question must, thereafter, maintain a physical presence in the county at all times during the election campaign for, as stated in AGO 55-57 No. 48 [[to R. C. Watts, Association of County Commissioners on March 28, 1955]], copy enclosed,

             [[Orig. Op. Page 5]]
            ". . . once physical presence is attained for a sufficient length of time, legal residence for the purpose of voting may be continued within the county even though physical residence is elsewhere until legal residence is established in the new location, Wilson v. Hoisington, (Mont.) 98 P.(2d) 369."
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
PHILIP H. AUSTIN
Deputy Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/"No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen."
 
2/Cf., the proposed amendment to Article VI, § 1, supra, that is contained in Senate Joint Resolution No. 143 ‑ a measure to be voted upon at the forthcoming, November 1974, state general election.  Under this proposed amendment, not only would the minimum age requirement for voting be reduced to eighteen years, in conformity with Amendment XXVI, supra, but, in addition, a single durational residence requirement of thirty days residency in the state, county and precinct in which an individual seeks to vote would be established.
 
3/See the concurring opinion of Justice Finley in DeFilipis v. Russell, supra, at p. 747, together with the following observation by the court in State ex rel. McCaffrey v. Sup.Ct., 20 Wn.2d 704, 711, 149 P.2d 156 (1954):
 
            ". . .  Should the legislature provide, by statute, the time at which eligibility to file for office must exist, it would greatly clarify the matter in future