After the 2010 census, did the Wyoming Constitution require all 30 state senators to stand for election in 2012 because senate district lines would change, or could 'holdover' senators (those whose four-year terms had not expired) finish their terms?

Plain-English summary

After every decennial census, Wyoming has to redraw its 30 state senate districts to keep population roughly equal. Wyoming senators serve four-year staggered terms, so half stand for election every two years. Going into the 2012 cycle, only 15 of the 30 senators had terms expiring; the other 15 were "holdovers" two years into a four-year term that ran to 2014. The Joint Corporations Committee wanted to know whether redistricting following the 2010 census required those 15 holdovers to run again in 2012.

AG Gregory Phillips answered that the holdover senators could complete their elected four-year terms. Two threads of analysis ran through the opinion.

The first was the Fourteenth Amendment Equal Protection Clause. After Reynolds v. Sims (1964) established the one-person, one-vote principle, dozens of federal and state courts have considered whether holdover senators violate equal protection when redistricting moves voters into new districts and delays their next senate vote by two years. The opinion catalogued those decisions:

• Federal: Republican Party of Oregon v. Keisling, Mader v. Crowell, Ferrell v. Oklahoma, Pate v. El Paso Cnty., Prince v. Kramer, Stout v. Bottorff, and the leading Donatelli v. Mitchell case from the Third Circuit. All upheld holdover senators against equal-protection challenges, applying rational-basis review and finding state interests in stability, continuity, and avoiding the cost of special elections.
• State: Kahn v. Griffin (Minnesota), Pick v. Nelson (Nebraska), Kallenberger v. Buchanan (Colorado), Barnett v. Boyle (Nebraska), and Reinecke (California). All to the same effect.

The second was Wyoming-specific. Schaefer v. Thomson, the 1965 three-judge federal panel decision, cut short the terms of 12 holdover Wyoming senators after that year's redistricting. Phillips read Schaefer as no longer persuasive, for several reasons: 46 years of contrary case law on the Fourteenth Amendment; Schaefer's unusual facts (whole counties were merged or split into joint senate districts in 1965, on a much larger scale than 2012's modest line-tweaking would involve); and Schaefer's misreading of Article 21, Section 18 of the Wyoming Constitution.

Article 21, Section 18 reads: "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 the qualified electors of the several districts as the same shall be established by law." Phillips read that text as a rule about who elects senators (the voters of the new districts, going forward), not a rule about when senators must stand for election. The plain language did not require all senators to seek re-election the moment district lines moved.

The opinion also noted that in 1992, after a much larger districting overhaul following Gorin v. Karpan, the Wyoming Legislature did require the entire senate to run because of "the magnitude of change." But in 2002, the Legislature kept staggered elections after only modest line adjustments. The 2010-cycle changes looked more like 2002 than 1992.

On the second question (could the Legislature require all 30 senators to stand for election in 2012), Phillips answered yes. Senators have no Fourteenth Amendment property right in their terms of office, citing Taylor v. Beckham (1900) and Snowden v. Hughes (1944), and later cases including Velez v. Levy and Ahearn v. Bailey echoing that holding. The Legislature has broad authority to design transition rules.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

After every U.S. decennial census, state legislatures must redraw legislative district boundaries to comply with the one-person, one-vote principle established in Reynolds v. Sims, 377 U.S. 533 (1964). Wyoming's 30 senators serve staggered four-year terms (Wyo. Const. art. 3, § 2), so reapportionment always presents the holdover problem: voters who get shifted to a new district may have voted two years earlier in their old district, and may have to wait until 2014 (rather than 2012) for their next senate election.

Article 21, Section 18 of the Wyoming Constitution reads:

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 the qualified electors of the several districts as the same shall be established by law.

The Wyoming Supreme Court mentioned this provision once, in Sullivan v. Schnitger (1908), but did not address holdover senators.

The 1965 Schaefer v. Thomson decision is the elephant in the room. After the Wyoming Legislature failed to reapportion the senate following Reynolds v. Sims, a three-judge federal panel reapportioned it by judicial decree, creating 17 senate districts (12 single-county and 5 multi-county). The panel cut short the terms of all 12 holdover senators and made them run in 1966 rather than 1968. The court relied on the Fourteenth Amendment and on Article 21, Section 18 of the Wyoming Constitution.

The 1971, 1981, and 1991 Wyoming Legislatures took cues from Schaefer in some redistricting cycles, juggling counties and accelerating elections in a few cases. After the 1991 county-based scheme was struck down in Gorin v. Karpan, 775 F. Supp. 1430 (D. Wyo. 1991), the 1992 Legislature made the entire senate run because of the magnitude of change. In 2002, after only modest line adjustments, the Legislature kept staggered elections.

Common questions

Q: What's a "holdover" senator?
A: A senator who is in the middle of a four-year term when redistricting moves district lines. Because Wyoming senators serve staggered four-year terms, half are in the middle of a term at any given time. Whether they can finish those terms in newly redrawn districts is the holdover question.

Q: Why did the AG conclude that the 2010-cycle redistricting did not force holdover senators to run in 2012?
A: Three reasons. First, 46 years of federal and state cases since Reynolds v. Sims have rejected equal-protection challenges to holdover senators serving out their terms. Second, the plain text of Article 21, Section 18 talks about who votes in the new districts, not when the next senate election must be held. Third, the 1965 Schaefer v. Thomson decision is distinguishable: it dealt with whole-county mergers, while the 2012 task involved comparatively minor adjustments to existing districts.

Q: Couldn't the Legislature have made all 30 senators stand for election in 2012 anyway?
A: Yes. The opinion answered the second question by saying senators have no Fourteenth Amendment property interest in their terms of office, and the Legislature has broad discretion to require all senators to stand in a redistricting cycle. The Legislature did exactly that in 1992 after the Gorin decision struck down county-based districting.

Q: How did courts uphold holdover senators against one-person, one-vote challenges?
A: Mostly by applying rational-basis review, finding legitimate state interests in stability and continuity, and recognizing that "perfection in human affairs is rarely attained, and the Equal Protection Clause does not contemplate perfection" (Stout v. Bottorff). Some voters wait six years between senate elections after redistricting; courts treated that as a temporary disenfranchisement no different from the disenfranchisement of an 18-year-old who turns voting age between elections.

Q: What was the Wyoming Supreme Court's view of Article 21, Section 18?
A: It mentioned it only in Sullivan v. Schnitger (1908), and gave no indication that holdover terms had ever been cut short under it. From statehood through 1942, Wyoming had staggered senate elections through multiple redistrictings without cutting holdover terms short.

Q: Why was Schaefer still cited as authority despite the 2011 opinion's pushback?
A: Because it was a federal court order interpreting both federal and state constitutional law. AG opinions are persuasive but cannot overrule a federal court decision. The 2011 opinion gives reasons to expect the Wyoming Supreme Court not to follow Schaefer in modern facts, but that's still a prediction, not a binding overruling.

Citations and references

Wyoming Constitution:
- Wyo. Const. art. 3, § 2
- Wyo. Const. art. 3, § 48
- Wyo. Const. art. 3, § 50 (formerly art. 3 sec. 4 fourth provision)
- Wyo. Const. art. 21, § 18

Federal Constitution:
- U.S. Const. amend. XIV

Federal cases:
- Reynolds v. Sims, 377 U.S. 533 (1964)
- Schaefer v. Thomson, 240 F. Supp. 247 (D. Wyo. 1964)
- Schaefer v. Thomson, 251 F. Supp. 450 (D. Wyo. 1965)
- Republican Party of Or. v. Keisling, 959 F.2d 144 (9th Cir. 1992)
- Mader v. Crowell, 498 F. Supp. 226 (M.D. Tenn. 1980)
- Ferrell v. Oklahoma, 339 F. Supp. 73 (W.D. Okla. 1972)
- Pate v. El Paso Cnty., 337 F. Supp. 95 (W.D. Tex. 1970)
- Stout v. Bottorff, 249 F. Supp. 488 (S.D. Ind. 1965)
- Donatelli v. Mitchell, 2 F.3d 508 (3d Cir. 1993)
- Chavis v. Whitcomb, 57 F.R.D. 32 (S.D. Ind. 1972)
- Prince v. Kramer, 1972 WL 123242 (W.D. Wash. 1972)
- Gorin v. Karpan, 775 F. Supp. 1430 (D. Wyo. 1991)
- FCC v. Beach Commc'ns, Inc., 508 U.S. 307 (1993)
- Taylor v. Beckham, 178 U.S. 548 (1900)
- Snowden v. Hughes, 321 U.S. 1 (1944)
- Velez v. Levy, 401 F.3d 75 (2d Cir. 2005)

State cases:
- Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005)
- Pick v. Nelson, 528 N.W.2d 309 (Neb. 1995)
- Kallenberger v. Buchanan, 649 P.2d 314 (Colo. 1982)
- In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191 (Colo. 1982)
- Barnett v. Boyle, 250 N.W.2d 635 (Neb. 1977)
- Legislature of the State of Cal. v. Reinecke, 516 P.2d 6 (Cal. 1973)
- In re Apportionment Law (Senate Joint Resolution 1E), 414 So. 2d 1040 (Fla. 1982)
- McCall v. Legislative Assembly, 634 P.2d 223 (Or. 1981)
- Sullivan v. Schnitger, 95 P. 698 (Wyo. 1908)
- Ahearn v. Bailey, 451 P.2d 30 (Ariz. 1969)
- Reaves v. Jones, 515 S.W.2d 201 (Ark. 1974)
- Christensen v. Hinkle, 13 P.2d 42 (Wash. 1932)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHMUZ4TXo0b1pnQ1k/view?resourcekey=0-zIW97kW1sUU_eG-pwu2enw

Original opinion text

Office of the Attorney General

Governor Matthew H. Mead
Attorney General Gregory A. Phillips
Chief Deputy Attorney General Peter K. Michael

Administration
123 State Capitol
Cheyenne, Wyoming 82002
307-777-7841 Telephone
307-777-6869 Fax

October 10, 2011

Senator Cale Case
Representative Peter S. Illoway
Chairmen of Joint Interim Corporations Committee
c/o Legislative Services Division
213 State Capitol
Cheyenne, Wyoming 82002

FORMAL OPINION 2011-003

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 2013 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 whether the 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 terms even when reapportionment has changed their senate district boundaries. Overwhelmingly, federal and state courts have recognized numerous legitimate government interests in doing so and found no violation of the 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 terms 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, the 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 the 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 the Fourteenth Amendment to their elected positions or to their full elected terms. 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 terms after reapportionment changes their districts' boundaries. This answer depends upon the reach of the Fourteenth 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

Although 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 terms, and then, depending on whether 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. Crowell, 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 that "[t]he temporary disenfranchisement of these voters violates neither the equal protection clause nor any other constitutional provision"); Ferrell v. Oklahoma, 339 F. Supp. 73, 81-82 (W.D. Okla. 1972) (finding no equal protection violation in legislature'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 that "those 'hold-over' state senators now serving four-year terms to which they 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 terms after reapportionment. See, e.g., Kahn v. Griffin, 701 N.W.2d 815, 833-34 (Minn. 2005); Pick v. Nelson, 528 N.W.2d 309, 316 (Neb. 1995); Kallenberger v. Buchanan, 649 P.2d 314, 317 (Colo. 1982); In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191, 198 (Colo. 1982); Barnett v. Boyle, 250 N.W.2d 635, 638 (Neb. 1977); Legislature of the State of Cal. v. Reinecke, 516 P.2d 6, 12 (Cal. 1973).

Another case, Donatelli v. Mitchell, 2 F.3d 508 (3d 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. 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. 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. The court also found no constitutional requirement that the new district have a "core constituency" from that senator's former geographical district.

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).

Applying the rational basis test to holdover senators, courts have uniformly upheld laws allowing holdover senators to complete their terms.

C. Wyoming's Constitution and Holdover Senators

In Schaefer v. Thomson, 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 the apportionment of state senators under the 1963 Reapportionment Act was "an invidious discrimination, and violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States."

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. The court reapportioned the state senate districts by judicial decree, creating 17 senate districts (12 single-county and 5 multi-county districts). The court next addressed "the method of transition from the improperly apportioned state Senate to the apportionment directed by this Court." The court observed that 12 of 25 senators had been elected in 1964 and ordinarily would have served until January 1969. 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 the Wyoming Senate."

The court cut short the terms of the holdover senators and made them all seek re-election in 1966 rather than 1968. It did so to avoid what it saw as four inequities. If allowed to stand, the court found, the end result would be a "palpably unjust, irrational and constitutionally impermissible" system. Doing nothing, the court said, would deprive Wyoming citizens of "a federally guaranteed right to a constitutionally apportioned legislature in January 1967."

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 permits 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 intrude into the legislative branch, Schaefer could have solved its next three listed inequities without requiring that all senators seek re-election in 1966.

Furthermore, Schaefer fails to give due regard to the constitutional requirement that senators serve four-year terms. Wyo. Const. art. 3, § 2. These extended terms insulate the senate from immediate popular sentiment and passions. Halving the terms 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. If the loss resulted from a temporary change in political winds or from a courageous but unpopular vote, the mass-ordered re-election did some constitutional harm.

Apart from the Fourteenth Amendment, the court in Schaefer 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 the qualified electors of the several districts as the same shall be established by law.

The court in Schaefer read this 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 the legislators. By generally directing that this occur "thereafter," the provision contemplates having the named voters select their senator at the next regularly-scheduled senate election. Any reading of "thereafter" to mean "at the next general election thereafter" is to redraft in the name of interpreting.

The Wyoming Supreme Court is the final arbiter of the 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 the alleged unconstitutionality of the apportionment acts of 1893, 1901, and 1907 required that later elections be according to the original apportionment schedule set forth at Wyo. Const. Art 3, Reapportionment, Sec. 4. In doing so, the court quoted Article 21, Section 18. Despite the organizing of three 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 terms of holdover senators. Moreover, until Schaefer in 1965, the Legislature had not cut short the terms of holdover senators as new counties were added and senate boundary lines necessarily changed.

In addition, even if the Wyoming Supreme Court fully agreed with Schaefer's reasoning, that case arose in a far different situation than 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, the 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, 775 F. Supp. 1430 (D. Wyo. 1991). In contrast, in 2002 the Legislature kept staggered senate elections, allowing holdover senators to serve their full terms despite all senate district boundaries having comparatively minor adjustments.

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.

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 with 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).

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

Sincerely,

Gregory A. Phillips
Attorney General