Knowing the Waters- August 2020 column by WPPA Counsel Frank Chmelik

In December of this year, the United States Census Bureau will deliver the decennial census to the President and Congress.  The “reference day” used for the census was April 1, 2020.  This will be the 24th United States Census and is conducted every ten years.  Shortly after the census is delivered to the President and Congress, it will be distributed to the states.  In Washington it will be received on behalf of the Legislature by the Washington Redistricting Commission.  This Commission will develop the redistricting plan for the Congressional Districts.

            Interesting, you say, but how does this relate to Washington public port districts?  Well, within forty-five days of the receipt of the census, RCW 29A.76.010 requires that the Commission forward the census data to all local governments.  Port districts should expect this information around March 15, 2021.  Once received, RCW 29A.76.010 requires all local governments (including port districts) to prepare a plan within eight months for redistricting the commission districts using the new census data.[1]

The new commission districts will be used in the next election that is at least one hundred eighty days after the redrawn boundaries have been determined.  In summary, most port districts will need to redraw their commission district boundaries in 2021. 

The redistricting plan must be consistent with the criteria found at RCW 29A.76.010 – nearly equal population, as compact as possible, geographically contiguous, not drawn to favor or disfavor any racial group or political party, to the extent possible respect and preserve natural boundaries, and preserve existing communities of “related and mutual interests”.  Fortunately, there are companies in Washington that specialize in crunching the data and developing various redistricting scenarios.  I would expect the fee to be less than ten thousand dollars.

Development of a draft redistricting plan (really a map with the new commissioner district boundaries) and ultimate adoption of a redistricting plan requires compliance with chapter 29.76 RCW entitled “Redistricting” and chapter 53.16 RCW entitled “Revision of Commissioner Districts”.  Care must be taken because the notice and timing requirements in these two chapters are somewhat inconsistent.

RCW 29A.76.010 contemplates the adoption of a “draft plan” and mandates that during the adoption of a plan there be “full and reasonable public notice” of the commission’s actions.  The statute also requires that the port district publish the draft plan and hold a meeting, including notice and comment, within ten days of publishing the draft plan and at least one week before adopting the plan.  RCW 53.16.020 requires that notice of a hearing for adoption be made not less than fifteen nor more than twenty days prior to the date fixed for the hearing.  This statute requires that all commissioners attend the meeting and that the vote be taken at that meeting.

In my view, the best practice here is to comply with both statues as follows:

·       Expect the census data to arrive around March 15, 2020.

·       Line up a consultant that can help determine the boundaries in compliance with RCW 29A.76.010.[2]

·       Plan a commission meeting schedule which includes commission meetings to discuss the commissioners’ views with the consultants, a review of draft plans, potential review of revised plans, adoption by the commission of a draft redistricting plan, a public hearing within ten days thereafter on the draft redistricting plan, and then another public hearing after publication in the newspaper not less than fifteen nor more than twenty days prior where the hearing occurs and the plan is adopted.  If the commission is persuaded to change the plan after the last hearing, then another hearing/adoption meeting would need to be scheduled and published.  All of this needs to be concluded within eight months.

·       Once the meeting schedule is determined, place the schedule on the port’s web page and other notice procedures used by the port to make sure that there is “full and reasonable public notice”.

RCW 53.16.030 provides that any change in commissioner district boundary lines will not affect the term of any sitting commissioner.  However, when the term is up, a sitting commissioner can only run for reelection if he/she lives in the new commission district. 

One note of caution, section 2 of the federal Voting Rights Act of 1965 has become a tool to attack redistricting plans that effectively disenfranchise a recognized minority population.  The claim is that commission redistricting plans that spread a recognized minority population amongst the three districts effectively deprives the minority population of the ability to elect a minority group member commissioner. Likely the federal law overrides the prohibition in RCW 29A.76.010 against favoring or disfavoring any racial group.

As always, please contact your port counsel with any questions regarding this topic. If you have a particular question or topic for a Knowing the Waters , please e-mail me at fchmelik@chmelik.com.

[1] The exception are county-wide port districts in a county with a population of less than five-hundred thousand and three county legislative authority (county council or county commissioner) districts.  RCW 53.12.010 provides that the port district will utilize those county legislative authority districts.

[2] Remember to comply with chapter 53.19 RCW for personal service contracts.