March 2021 Knowing the Waters; a Column by WPPA Counsel Frank Chmelik

Port districts, like all Washington local and municipal governments, are required to redistrict their commission districts once every ten years using the decennial census data provided by the federal government.  For most port districts, 2021 is a redistricting year. County-wide port districts with three commissioners in a county with three county legislative districts use the county created legislative districts; the ports that use county legislative districts ought to pay close attention to what their county council or commission is doing. The redistricting will be used for port commission elections in 2023.

It has now become apparent that this task will be difficult because of the COVID-19 pandemic.  WPPA staff have been talking with legislators about this issue and caution that port districts need to pay attention. Here is the rundown on redistricting.

Article 1, Section 2 of the United States Constitution requires an “enumeration” of every person in the United States (citizens and non-citizens alike) be conducted every ten years.  The first enumeration (now called a census) occurred in 1790. The latest census was conducted in 2020.  Counting officially began January 21, 2020 in the rural Alaskan village of Toksook Bay.  Federal law required the United States Census Bureau to deliver apportionment counts to the President before December 31, 2020 and required that the redistricting census data be made available to the states on or before April 1st of the following year (2021).

But then came the COVID-19 pandemic. On February 12, 2021, the U.S. Census Bureau announced that it will deliver the redistricting data to all states six months late - September 30, 2021.  

 RCW 44.05.030 created a Washington Redistricting Commission. This body (appointed by the Legislature) receives the federal census data and redistricts the Washington congressional districts. The Commission is also required to pass the data onto local governments within forty-five days of receipt.  Under normal circumstances, local governments would expect to receive the data by May 15, 2021.  RCW 29.76.010 requires local governments, including port districts, to complete redistricting within eight months of receiving the data – normally January 15, 2022. 

With an anticipated data delivery date of November 15, 2021, port districts will be required to complete the redistricting by July 15, 2022.  For port districts, this may mean that a port commission newly elected in 2021 may do the redistricting.[1] 

Once the data arrives, the port commission is responsible for developing a redistricting plan. This is usually done by hiring a consultant that works with the data to develop various map layouts for the commission’s consideration. RCW 29A.76.010 requires that the redistricting plan meet the following criteria.

·       Each commissioner district must be as nearly equal in population as possible to each and every other such district comprising the municipal corporation, county, or special purpose district.

·       Each district must be as compact as possible.

·       Each district must consist of geographically contiguous areas.

·       Population data may not be used for purposes of favoring or disfavoring any racial group or political party.

·       To the extent feasible, the district boundaries shall coincide with existing recognized natural boundaries and must, to the extent possible, preserve existing communities of related and mutual interest.

Ports should also consider the requirements of the federal Voting Rights Act of 1965 which prohibit the formation of districts which deny minority voters an equal opportunity "to participate in the political process and to elect representatives of their choice." It applies whether the denial is intentional or an unintended result. Courts essentially test whether the way that districts are drawn takes “decisive political power away from a cohesive minority block otherwise at risk for discrimination.”  I would expect litigation on this federal law across the United States as part of this redistricting cycle. Care should be taken in this process to avoid a challenge under the Voting Rights Act of 1965.

With that background, and based on the requirements of RCW 29A.76.010 and RCW 53.16.020, here are some recommended steps for port districts to consider.  It is important that the notice requirements in both RCW 29A.76.010 and RCW 53.16.020 be followed.

Step 1:    Consider an interlocal with similarly situated governments, for example PUDs, fire districts or school districts, to minimize consultant costs.  All the local districts will be working with the same dataset, albeit in different parts of the county.

Step 2:    Select and retain a data consultant.  Note that chapter 53.19 RCW applies to “personal service” contracts for port districts, and this will be a personal service contract.

Step 3:    Develop a realistic budget, timeline and scope of work.

Step 4:    Ensure “full and reasonable public notice of all redistricting actions” as required in RCW 29A. 76.010.

Step 5:    At a port commission meeting outline the requirement and the process, including the proposed timeline and where and how the public can provide input.  This will likely include a public meeting where the consultants present their recommendations.  The consultants may be asked to refine a alternative and report back to the commission.

Step 6:  In a public meeting and based upon the consultants’ recommendations, the commission considers various alternatives and adopts a draft plan. 

Step 7:  Publish the draft plan.

Step 8:  Hold a public meeting, including notice and comment, within ten days of publishing the draft plan and at least one week before adopting the plan (RCW 29A.76.010(5)(a)).

Step 9:  Amend the draft as necessary after receiving public comments and resubmit any amended draft plan for additional written public comment at least one week before adopting the plan.

Step 10:  Publish notice of the meeting where the plan will be adopted in a newspaper of general circulation within the port district . . .not less than twice, the date of the first publication to be not less than fifteen nor more than twenty days prior to the date fixed for said hearing, and shall state the time, place and purpose of the hearing (RCW 53.16.020). Note if the plan changes, then a port must go back through the RCW 29A.76.010 process.

Step 11:  Hold the meeting with attendance of all of the members of the commission to adopt the plan.

RCW 53.36.030 provides that the redistricting described here does not affect a sitting commissioner’s term of office.  Sitting commissioners finish out their terms of office even if redistricting results in them be ineligible to run in that commission district again.

As always, please contact your port counsel with any questions regarding this topic.   And, if you have a particular question for a Knowing the Waters please email me at fchmelik@chmelik.com.

[1] I note that counties run elections on even numbered years and therefore their redistricting efforts will have to be very compressed to meet the May 2022 primary filing dates.