Wyoming Advisory Opinions October 10, 2011: AGO 11-003 (October 10, 2011)

Wyoming Attorney General Opinions

2011.

AGO 11-003.

Dear Senator Case and Representative Illoway:

In a letter dated August 16, 2011, you requested an Attorney General opinion on two legal questions:

The Joint Corporations, Elections and Political Subdivision Committee (the Committee) has been tasked with introducing a bill during the 2012 Budget Session which creates new legislative districts following the 2010 federal census in accordance with Article 3, Section 48 of the Constitution of the State of Wyoming, It is quite likely that the boundaries of all senate districts will be altered to some degree following the adoption of new redistricting legislation. However, only 15 current senators' four year terms expire prior to the 201 [3] general session. Assuming that the physical residence of all current senators remain[s] within their district boundaries following redistricting, the Committee would like you to review the legal precedents, both state and federal, concerning whether all Wyoming state senators must stand for election following legislative redistricting. If all 30 senators are not required to stand for election in 2012, the Committee would also appreciate your office's view as to whetlier tlie redistricting legislation can require all 30 senators to stand for election in 2012, without Constitutional amendment.

Short Answers

Question 1

As a general rule, legislatures have power to allow holdover senators to complete their elected four-year tenns even when reapportionment has changed tlieir senate district boundaries. Overwhelmingly, federal and state courts have recognized numerous legitimate government interests in doing so and found no violation of die Fourteenth Amendment's Equal Protection Clause.

This rule should also apply in Wyoming, despite Schaefer v. Thomson, 251 F. Supp. 450 (D. Wyo. 1965). In that case, a three-judge federal panel cut short the tenns of all holdover senators under the Fourteenth Amendment of the United States Constitution and also under Article 21, Section 18 of the Wyoming Constitution. But we must read Schaefer in the context of its unprecedented changes to senate district boundaries that year-in five instances, die court merged whole counties into joint senate districts. In addition, we must take sight of 46 years of case law disagreeing with Schaefer about the proper reach of tlie Fourteenth Amendment's Equal Protection Clause. Finally, we must restrict Article 21, Section 18 of our state constitution to its plain language and fully respect the constitutional direction for four-year senate terms. After doing so, Schaefer is no longer persuasive.

Question 2

On the other hand, the Legislature has power to require that all 30 senators stand for election in 2012. Senators likely have no property right under tlie Fourteenth Amendment to their elected positions or to their full elected tenns. I have found no court decision in which a holdover senator whose term was cut short after reapportionment even challenged that action.

Analysis

A. Introduction

During the past 50 years, federal and state courts have actively participated in apportioning state and local election districts. Most court decisions resolve disputes about whether apportionment plans satisfy the one-person, one-vote principle. Your questions go instead to a corollary issue-whether holdover senators may complete the remainder of their tenns after reapportionment changes their districts' boundaries. This answer depends upon the reach of the Fourteentli Amendment's Equal Protection Clause and, in Wyoming, upon the meaning of Article 21, Section 18 of our state constitution.

B. The Fourteenth Amendment's Equal Protection Clause and Holdover Senators

Altliough the United States Supreme Court has not yet addressed the issue of holdover senators, many state and federal courts have. The holdover senator issue arises whenever staggered senate terms and decennial reapportionment meet. After reapportionments, senate district boundaries usually have changed. This means that holdover senators usually serve those citizens electing them for the first two years of their tenns, and tlien, depending on whetlier their districts grow or shrink after reapportionment, a somewhat broader or narrower group of citizens the next two years. Shifting voters to different senate districts can affect when they next vote in a state senate election. For instance, absent reapportionment, a Wyoming voter presently in an even-numbered senate district would vote for senate in 2012, but shifting boundary lines may move that voter to an odd-numbered district, delaying participation in a senate election until 2014. Voters such as this must wait six years between senate elections and will be represented for two years by a senator for whom they had no earlier chance to support or oppose.

Federal courts have found no constitutional violation in holdover senators completing their terms of office. See, e.g.. Republican Party of Or. v. Keisling, 959 F.2d 144, 145-46 (9th Cir. 1992) (holding that "in the context of reapportionment, a temporary dilution of voting power that does not unduly burden a particular group does not violate the equal protection clause"-some voters having to wait not 4 but 6 years between senate elections); Mader v. Crowe!!, 498 F. Supp. 226, 231 (M.D. Tenn. 1980) (noting that shifts of voters from odd- to even-numbered districts is "an unavoidable consequence of reapportionment," and finding Uiat "[t]he temporary disenfranchisement of these voters violates neitlier tlie equal protection clause nor any other constitutional provision"); Ferrell v. Oldalwma, 339 F. Supp. 73, 81-82 (W.D. Okla. 1972) (finding no equal protection violation in legislamre's plan necessarily "having some voters represented by a Senator for whom they had no opportunity to support or oppose"); Prince v. Kramer, No. 9668, 1972 WL 123242, at *5 (W.D. Wash. April 12, 1972) (holding tliat "tliose 'hold-over' state senators now serving four-year tenns to which tliey were elected in 1970 may continue to serve out their full terms in the newly created legislative districts"); Pate v. El Paso Cnty., 337 F. Supp. 95, 99-100 (W.D. Tex. 1970) (approving under the Fourteenth Amendment the redistricting of commissioners even though it would delay by two years some voters from participating in a commissioner election); Stout v. Bottorff, 249 F. Supp. 488, 495 (S.D. Ind. 1965) (allowing holdover senators and saying that "perfection in human affairs is rarely attained, and the Equal Protection Clause of the Fourteenth Amendment does not contemplate perfection").

Nor have state courts found a constitutional violation in holdover senators completing their elected tenns after reapportionment. See, e.g., Kahn v. Griffin, 701 N.W.2d 815, 833-34 (Minn. 2005) (holding diat the Minnesota Constitution provides no greater protection tlian the United States Constitution and approving holdover city council members to serve their full tenn despite redistricting); Pick v. Nelson, 528 N.W.2d 309, 316 (Neb. 1995) (approving continued service by holdover senators after redistricting and noting that "it would be a practical impossibility to redistrict" without some voters switching districts and being delayed in voting for two years); Kallenberger v. Buchanan, 649 P.2d 314, 317 (Colo. 1982) (en banc) (finding that the constitutionality of holdover representation is not altered in any way by an intervening vacancy election); In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191, 198 (Colo. 1982) (en banc) (except where redistricting resulted in a senate district with no resident senator for two years and another district with two holdover senators, court finds no equal protection violation in redistricting's delaying some voters two years in voting in tlieir next senator election); Barnett v. Boyle, 250 N.W.2d 635, 638 (Neb. 1977) (finding no constitutional violation with holdover school board members even though under redistricting some voters were delayed two years in voting in the next school board election); Legislature of the State of Cat. v. Reinecke, 516 P.2d 6, 12 (Cal. 1973) (finding no constitutional violation by allowing holdover senators to serve remaining two years of their term).

Anotiier case, Donatelli v. Mitchell, 2 F.3d 508 (3rd Cir. 1993), shows the degree to which a court will go to uphold continued service by a holdover senator. The case involved the Pennsylvania Legislature's reapportioning after "a drastic shift in population from the western to the eastern part of the state . .. ." Id. at 511. Although many districts were substantially changed, one district (district 44) was entirely moved from western to eastern Pennsylvania. Id. Ultimately, the holdover senator in district 44 moved his household across the state to his new district and by a one-vote margin the Senate seated him. Id. at 512. The court found no equal protection violation, treating individual voters in the newly-created district 44 the same as individuals in merged districts who also had been temporarily disenfranchised. Id. at 516. The court also found no constitutional requirement that the new district have a "core constituency" from tliat senator's foraier geographical district. Id.

Although not all these courts evaluate the equal protection claims under a stated level of scrutiny, those doing so have used the highly-deferential rational basis test. Under this test, a "statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) (citations omitted). A classification subject to rational-basis review bears "a strong presumption of validity and those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" Id. at 314-15 (citations omitted).

Applying the rational basis test to holdover senators, courts have uniformly upheld laws allowing holdover senators to complete their tenns. See, e.g., Donatelli, 2 F.3d at 510-11, 519 (allowing Pennsylvania Legislature's decision to relocate an entire senate district across the state under rational basis standard, in part because "[t]he state has a legitimate interest in not ousting a senator in the middle of the four-year term which he was elected to serve" and "in avoiding the expense and inconvenience of a special election"); Kahn, 701 N.W.2d at 831-33 (although discussing how different standards of review may apply depending on the burden imposed on the right to vote, tlie court finds tliat "[r]equiring rigid mathematical equality at all times would result in a sacrifice of stability and experience due to shorter terms, increase the cost of elections for taxpayers, make it more difficult for citizens of limited means to participate in local elective politics, and undermine the settled expectations that both voters and elected officials hold"); Pick, 528 N.W.2d at 319 (approving holdover senators in Nebraska reapportionment act as "rationally related to the goal of enacting a constitutional redistricting scheme in furtherance of the underlying interests of equal protection"); Reinecke, 516 P.2d at 12 ("The state may rationally consider stability and continuity in tlie Senate as a desirable goal which is reasonably promoted by providing for four-year staggered tenns.").

Other courts not specifically mentioning the rational basis test still have recognized the legislature's legitimate interest in allowing holdover senators to serve their full term. See, e.g., Keisling, 959 F.2d at 145 (finding that the legitimate and inevitable consequences of reapportionment include shifted voters being delayed in their next election opportunity); Mader, 498 F. Supp. at 231 (finding that disenfranchisement arising from reapportionment and holdover senators is temporary and no different from newly-turned 18 year olds and citizens moving into a district between elections, and furtlier opining tliat "politically sensitive senators will seek to represent effectively those shifted voters who likely will be part of their constituencies in the 1982 election"); Ferrell, 339 F. Supp. at 82 (recognizing that when boundaries change it is impossible to avoid voters being represented by senators they had no opportunity to support or oppose, a condition shared by voters turning 18 years old between elections and recently moved citizens).

Those decisions cutting short the tenns of holdover senators involve far different facts and law tlian now apply in Wyoming. See In re Apportionment Law Appearing as Senate Joint Resolution 1 E, 1982 Special Apportionment Session; Constitutionality Vel Non, 414 So. 2d 1040, 1046, 1049-50 (Fla. 1982) (relying solely on Florida Constitution provision requiring that the senate be "composed of one senator elected from each senatorial district," court finds that because reapportionment changed all senate districts all senators must seek re-election at the next election); In re Apportionment of the Colo. Gen. Assembly, 647 P.2d at 198-99 (altiiough finding no equal protection violation when voters were assimilated into another senate district not holding an election until two years past when their former district would have elected a senator, the court strikes down portion of the reapportionment plan that would have left one senate district without a resident senator and another district with two); McCall v. Legislative Assembly, 634 P.2d 223, 230, 232, 235-36 (Or, 1981) (although finding no equal protection violation when voters were assimilated into another senate district not holding an election for an additional two years past when their fonner district would have elected a senator, the court strikes down the reapportionment plan as to one district whose voters would have to wait an additional two years widiout an identifiable senator residing in the district); Chavis v. Wliitcomb, 57 F.R.D. 32, 35-36 (S.D. Ind. 1972) (cutting short the tenns of holdover senators elected under an apportiomnent act already found unconstitutional when doing so was necessary to implement tiie districting plan later prescribed by die court).

C. Wyoming's Constitution and Holdover Senators

In Schaefer v. Tiwmson, 240 F. Supp. 247 (D. Wyo. 1964), a three-judge panel first addressed Wyoming's legislative apportionment system after Reynolds v. Sims, 377 U.S. 533 (1964). The panel held that die apportionment of state senators under the 1963 Reapportionment Act, 1963 Wyo. Sess. Laws 18-19, was "an invidious discrimination, and violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States . . . ." Schaefer. 240 F. Supp, at 253. Further, the court held that "tlie conditions and circumstances existing in the State of Wyoming are such that the provisions of Section 3, Article 3 of the Wyoming Constitution, which constitutes each county an election district and requires that each county be represented by at least one senator, is ineffective and is not to be considered when determination is made of the reapportionment of tlie Wyoming state senate . . . ." Id.

Noting the power of federal courts "to protect citizens and to take the necessary action to enforce rights guaranteed by the Federal Constitution in cases such as this," the court declared tliat tlie State was best served by the court's "witliliolding any immediate affinnative judicial relief in order to permit the legislature to consider reapportionment of its senate and to enact, as soon as possible, a valid law that meets the requirements of the Constitution of tlie United States." 240 F. Supp. at 252.

A year later, in Schaefer v. Thomson, 251 F. Supp. 450 (D. Wyo. 1965), the same three-judge panel again took charge after the 1965 Wyoming State Legislature failed to pass a reapportionment bill. Id. at 451. In view of tlie Legislature's inability "to provide nearly equal representation in the state Senate on the basis of population," the court reapportioned tlie state senate districts by judicial decree. Id. Specifically, the court created 17 senate districts-12 single-county and 5 multi-county districts. Id. at 452.

The court next addressed "tlie method of transition from the improperly apportioned state Senate to the apportionment directed by this Court." 251 F. Supp. at 453. The court observed that 12 of 25 senators had been elected in 1964 and ordinarily would have served until January 1969. Id. at 454. Those senators were elected under the 1963 reapportionment act, which the court noted it had already "held is contrary to the requirements of the Fourteenth Amendment of the United States Constitution and [is] null and void insofar as it relates to die Wyoming Senate." Id. at 454,

The court cut short the terms of the holdover senators and made them all seek reelection in 1966 radier tlian 1968. 251 F. Supp. at 454-55. It did so to avoid what it saw as four inequities: (1) most applicable to our situation, but on a much larger scale, citizens in three counties-Hot Springs, Converse, and Lincoln-were assimilated into senate districts having a holdover senator for whom they had not had an opportunity to vote two years earlier; (2) citizens in one combined senate district-Teton, Sublette, and North Lincoln-would have had two holdover senators for two years when the district was allotted only one senator; (3) in the court's view, two holdover senators in Laramie County would have each represented 30,000 citizens (the county population being 60,000) while its tliree new senators from reapportionment would have represented 20,000; and (4) by the same reasoning, holdover senators and newly-ordered senators in Natrona, Park, and Sheridan counties would supposedly have represented different numbers of their counties' citizens. Id. at 454. If allowed to stand, the court found, tlie end result would be a "palpably unjust, irrational and constitutionally impermissible" system. Id. Doing nodiing, the court said, would deprive Wyoming citizens of "a federally guaranteed right to a constitutionally apportioned legislature in January 1967." Id

For a variety of reasons, Schaefer's reasoning is no longer persuasive. As spelled out above, the case law in the 46 years after Schaefer overwhelmingly declares that the Fourteenth Amendment pennits some citizens to be assimilated into an adjoining senate district and delayed two years in voting for a state senator. Recognizing that the judicial branch's role is to remedy constitutional violations and otherwise not inhxide into the legislative branch, Schaefer could have solved its next three listed inequities without requiring that all senators seek re-election in 1966. For instance, the court could have required the Teton-Sublette-North Lincoln district to elect a senator in 1966 for a two-year term. Schaefer's third and fourth listed inequities are illusory-for instance, the five Laramie County senators would represent all 60,000 citizens in tlieir district and not a meaningless fraction of the total. Within two years of the reapportionment, all Laramie County voters would have voted each of the five senators in or out.

Furthermore, Schaefer fails to give due regard to the constitutional requirement tliat senators serve four-year tenns. Wyo. Const, art. 3, § 2. These extended terms insulate the senate from immediate popular sentiment and passions. Halving the tenns of holdover senators needlessly upsets important constitutional balances. Schaefer's disregard for this constitutional feature is best seen by its cutting short the terms of two holdover senators from districts whose boundaries remained unchanged-Big Horn and Goshen Counties. Forced to run early, the senator from Goshen County lost in the 1966 general election. Wyo. State Archives and Historical Dep't, Wyoming Blue Book, vol. Ill, 77, 80 (Centennial ed. 1990). If the loss resulted from a temporary change in political winds or from a courageous but unpopular vote, tlie mass-ordered re-election did some constitutional hanii.

Apart from the Fourteenth Amendment, the court in Shaefer also supported its decision under Article 21, Section 18 of the Wyoming Constitution, which reads as follows:

How legislature chosen

Senators and members of the house of representatives shall be chosen by the qualified electors of the several senatorial and representative districts as established in this constitution, until such districts shall be changed by law, and thereafter by tlie qualified electors of the several districts as the same shall be established by law.

The court in Schaefer read tliis language to the following effect: "The senatorial districts are now hereby changed. All the thirty senators, therefore, who will comprise the 39th Legislature which will convene in January 1967, must be elected by the qualified electors of the senatorial districts as established herein." 251 F. Supp. at 455,

The plain language of Article 21, Section 18 does not require that holdover senators immediately run for re-election when any senate district boundary changes. The constitutional provision speaks to who elects senators and not to a certain date when they are elected. It simply says that after legislative districts change, the voters in the new districts, and not those in the old districts, elect tlie legislators. By generally directing tliat this occur "tliereafter," the provision contemplates having the named voters select their senator at the next regularly-scheduled senate election. Any reading of "thereafter" to mean "at die next general election thereafter" is to redraft in the name of interpreting.

The Wyoming Supreme Court is tlie final arbiter of tlie meaning of our state constitution. Just once has it mentioned Article 21, Section 18. In Sullivan v. Schnitger, 95 P. 698, 700 (Wyo. 1908), the court addressed whether tlie alleged unconstitutionality of the apportionment acts of 1893, 1901, and 1907 required that later elections be according to tlie original apportionment schedule set forth at Wyo. Const. Art 3, Reapportionment, Sec. 4.(fn1) In doing so, the court quoted Article 21, Section 18. Id. at 702. Despite the organizing of diree new counties after adoption of the Wyoming Constitution-Natrona, Weston, and Big Horn-the court intimated nothing about a constitutional need to have ever cut short the tenns of holdover senators. Moreover, until Schaefer in 1965, the Legislature had not cut short the tenns of holdover senators as new counties were added and senate boundary lines necessarily changed. See Wyoming Blue Book, supra, vol. II at 518 (list of counties and dates created and organized); id., at 535638 (showing staggered senate elections from statehood thoughl942, nineteen years after the last county, Sublette, was organized).(fn2)

In addition, even if the Wyoming Supreme Court fully agreed with Schaefer's reasoning, tliat case arose in a far different situation dian now applies. Unlike in 1965 and 1992, when whole counties were merged or split to create new senate districts, the 2012 Legislature faces a much milder task, one akin to that faced in 2002. In 2012, die task is to make comparatively minor adjustments to 30 senate districts and 60 house districts. In 1992, the Legislature made the entire senate run for election because of "the magnitude of change" after county-based senatorial districts were struck down in Gorin v. Karpan, 11S F. Supp. 1430 (D. Wyo. 1991). In contrast, in 2002 tlie Legislature kept staggered senate elections, allowing holdover senators to serve their full tenns despite all senate district boundaries having comparatively minor adjustments. See 1992 Wyo. Sess. Laws 1-3; 2002 Wyo. Sess. Laws 1-3.

As seen by LSO's spreadsheet showing the changes in district populations in year 2010, some senate districts are already well within 5% of the ideal senate district population. To accommodate boundary shifts elsewhere, these districts as redrawn may need to depart further away from the ideal. It certainly would be odd to require holdover senators in such districts to seek re-election two years early in a new district departing further fi-om the ideal population than the district electing them.

D. Rights of Senators

As seen above, numerous courts have ruled in cases involving holdover senators. I have found no case recognizing any constitutional right for a holdover senator to serve the remainder of a term despite an intervening reapportionment. The few cases speaking to the issue say no such right exists. See In re Apportionment Law, 4!4 So. 2d at 1046 (recounting that the Florida senate acknowledges that courts have "both die power and tlie duty to truncate the tenns of legislators elected from malapportioned districts" violating one-person, one-vote, and also acknowledges that "elected officials have no property rights to the office to which they have been elected"); Chavis, SI F.R.D. at 35 ("Senators elected in 1968 under what has now been declared to be an unconstitutional statute do not have a vested right to serve out die balance of their 4-year terms"); Prince, 1972 WL 123242, at *4 (stating the "accepted proposition that no state senator has a constitutionally vested right to serve out the entire tenn for which he was elected") (citing Reynolds v. State, 233 F. Supp. 323 (W.D. Okla. 1964), and Christensen v. Hinkle, 13 P.2d42(Wash. 1932)).

This makes sense. First, all senators witii staggered terms and decennial reapportionments must understand their risk of being a holdover. Second, the legislative hearings and sessions on reapportionment provide more than sufficient due process if it ever were required. Third, courts themselves sometimes cut short the terms of holdover senators, showing no concern that they are infringing on the constitutional rights of those holdover senators.

Moreover, the United States Supreme Court has declared that the Fourteenth Amendment does not protect a person's interest in a political office:

The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. ... In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent widi either a property or a contract right.

Taylor v. Beckham, 178 U.S. 548, 577 (1900); see also Snowden v. Hughes, 321 U.S. 1, 7 (1944) (reaffinning Taylor); Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (acknowledging that cases after 1944 have more expansively defined "property" and "cast a shadow over Taylor and Snowden," but still following those cases to conclude that plaintiff "lacks a constitutionally cognizable property interest in her employment as a public official); Ahearn v. Bailey, 451 P.2d 30, 34 (Ariz. 1969) (concluding that the right to hold political office is not a constitutionally protected right because the right "is not the right of the incumbent to tlie place, but the people to the officer"); Reaves v. Jones, 515 S.W.2d 201, 204 (Ark. 1974) (rejecting expelled state senator's claim under due process because "the right to hold office is not a property right").

For all reasons stated, the Wyoming Legislature has power to allow holdover senators to serve their elected four-year tenns, but also has power to require all 30 senators to seek re-election in 2012.

Sincerely,

Gregory A. Phillips

Attorney General

GAP: cc

1. Because of the conftising numbering, the four sections listed under "Apportionment" were renumbered as Article 3, sections 47 through 50. The particular section referenced is now found at Article 3, Section 50.

2. From 1971 to 1991, the Legislature took its cue from Schaefer and three separate times juggled counties to try to keep close the populations per senator. In 1971, the Legislature made three geographical changes: (1) it moved Hot Springs away from Fremont and joined it with Washakie; (2) it made Fremont an independent senate district (3) it joined into one senate district the fonneriy independent Goshen and Platte. 1971 Wyo. Sess. Laws 211. Again taking a cue from Schaefer, citing Wyo. Const. Art. 21, Sec. 18, it required all senators representing citizens from the above counties to run for office in 1972. 1971 Wyo. Sess. Laws 213. To maintain an equal split of staggered terms, it prescribed two-year tenns for the senators elected in 1972 from Hot Springs-Washakie, and for one senator from Fremont, the other senator from Fremont for a 4-year tenn. Id. In 1981, the Legislature made six geographical changes: (1) it made Lincoln an independent senate district; (2) it kept Teton and Sublette together as a district after splitting off Nordi Lincoln; (3) it made Uinta an independent district; (4) it made Platte an independent district; (5) it combined Goshen witli Niobrara to fonn a district; and (6) it made Converse an independent district. 1981 Wyo. Sess. Laws 96-97. Generally, it said that "[t]he fact that a senator under the new apportionment shall represent only a portion of the district which elected him is not cause to abridge tlie term of office of tliat senator." 1981 Wyo. Sess. Laws 98. It delayed until 1984 elections in the new Converse, Platte, and Goshen-Niobrara districts. Id. In 1991, although later found unconstitutional in Gorin v. Karpan, the Legislature again juggled counties, this time rejoining Goshen-Platte and Converse-Niobrara. 1991 Wyo. Sess. Laws 370. It allowed two-year tenns until 1994 in Converse, Goshen-Niobrara, Platte, and Sheridan. 1991 Wyo. Sess. Laws 372-73. It provided four-year terms in 1992 for Campbell, in 1994 for Sheridan-Jolinson, and in 1996 for Goshen-Platte. Additionally, it provided in 1992 two Goshen-Platte senators two-year tenns, and also in 1992 two Sheridan-.Iohnson senators two-year tenns. Id.