additional vote for all remaining property). Appellants fall within the exception to the statute and are not permitted to cast even a fractional vote for SVID board members.

The right to vote is fundamental under both the United States and Washington constitutions. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.E.2d 506 (1964); Malim v. Benthien, 114 Wash. 533, 196 P. 7 (1921). The Washington Constitution, unlike the federal constitution, specifically confers upon its citizens the right to "free and equal" elections. Const. art. 1, Sec. 19. Because we find that the Washington constitution goes further to safeguard this right than does the federal constitution, we base our decision here upon the Washington constitution.

Const. art. 1, Sec. 19 provides: "All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." The Washington Constitution defines qualified electors as:

All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, section 3 of this Constitution, shall be entitled to vote at all elections.

Const. art. 6, Sec. 1 (amend. 63).

All idiots, insane persons, and persons convicted of infamous crime unless restored to their civil rights are excluded from the elective franchise.

Const. art. 6, Sec. 3.1

The meaning of the guaranty to "free and equal" elections can be ascertained, in some measure, by looking to the records of the constitutional convention, and the few cases which have discussed Const. art. 1, Sec. 19.

The guaranty that "all Elections shall be free and equal" was adopted from the Oregon constitution, which was, in turn, adopted from the Indiana constitution. The Journal of the Washington State Constitutional Convention, 1889, at 508 n.31 (B. Rosenow ed.

'Originally, the franchise included males 21 years or over and excluded Indians not taxed. Const. art. 6, Sec. 1. In 1896, the constitution was amended to require further that all electors be able to read and speak English. Const. art. 6, Sec. 1 (amend. 2). In 1910, the franchise was expanded to include women. Const. art. 6, Sec. 1 (amend. 5). Finally, in 1974, the minimum voting age was reduced to 18 years or over and both the exclusion of "Indians not taxed" and the requirement that electors be able to read and speak English were deleted.

1962). The framers of the Washington Constitution added to this phrase the additional guaranty that "no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." At the convention, there were two motions to replace the word "equal” with an alternative word. Mr. Dyer moved to substitute "open" for "equal." Mr. Reed moved to substitute "impartial" for "equal." Mr. Lindsley moved to strike the entire section. Each of these motions failed. At least one delegate, Mr. Moore, believed that "equal" meant the same thing as "free." Journal, supra at 508.

The earliest case to consider Const. art. 1, Sec. 19 was Malim v. Benthien, supra. There the issue was whether the diking and drainage act of 1913, Rem. Code section 4107, unconstitutionally denied persons living outside a water district, but subject to district assessments, the right to vote. The court determined that the only difference between those persons entitled to vote and those not so entitled was that the former group lived within the district's boundaries while the latter lived outside. This distinction lacked sufficient merit to deprive those outside the district of the right to an equal vote under the privileges and immunities clause of Const. art. 1, section 12 and Const. art. 1, section 19. Cf. King Cy. Water Dist. 54 v. King Cy. Boundary Review Bd., 87 Wash.2d 536, 554 P.2d 1060 (1976) (where a voting scheme limiting the right to vote in general municipal elections to city residents under Const. art. 1, section 12 was found constitutional, although the municipality managed a water district affecting those outside city boundaries, because adequate safeguards existed to protect those outside the city and "city residents [were] substantially affected by all city actions, not just its management of the water system").

One of the latest cases to apply Const. art. 1, section 19 is Carstens v. Public Util. Dist. 1, 8 Wash.2d 136, 111 P.2d 583 (1941). There, the Lincoln County public utility district sought to take, by eminent domain, property owned by a private utility company. Plaintiffs owned property in Spokane and Grant Counties which defendant sought to condemn. They claimed, in part, that permitting the district to condemn transmission lines in Spokane and Grant Counties violated Const. art. 1, section 19 because persons in those counties were not able to vote on this issue. The court rejected this contention on grounds that persons in these counties had no property or other real interest in the existing service. "The minute losses which the individual customers might suffer as a result of the removal of the property from the tax rolls would probably be counteracted by savings realized in power rates." Carstens, at 152. 111 P.2d 583.

Accord, Orchard Grove Water Ass'n v. King Cy. Boundary Review Bd., 24 Wash.App. 116, 120, 600 P.2d 616 (1979) (Const. art. 1, section 19 “is violated only when the property rights of persons are affected in more than an incidental way by a municipal corporation in which they have no right to vote").

This history offers several principles applicable here. The right of all constitutionally qualified citizens to vote is fundamental to our representative form of government. In most instances any legislative act which qualifies this right must, under federal law, be cased upon a compelling state interest and the state must demonstrate that no less restrictive measures are available to achieve this interest. Reynolds v. Sims, supra. The language of Const. art. 1, section 19 is not to be interpreted literally: "elections and voters may... be regulated and property controlled"; in certain limited situations, the right to vote on an issue or for a representative may be confined to those persons directly affected by the issue or representative body. State v. Wilson, supra, 137 Wash.at 132-33, 241 P. 970.

The United States Supreme Court has departed from the strict one-person, one-vote rule of Reynolds v. Sims, supra, where the election of representatives in special purpose municipal districts is concerned. See Salyer Land Co. v. Tulare Lk. Basin Water Storage Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973); Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). This is due to the limited governmental powers possessed and exercised by these districts and the disproportionate impact such districts frequently have upon a definable class living within their boundaries.

The Supremacy clause, U.S. Const. art. 6, see also Const. art. 1, Sec. 2, requires that we satisfy the Supreme Court's test for departure from the strict rule of Reynolds v. Sims, supra. It is useful, therefore, to set forth the federal analysis to calm any fears that we might be subverting the federal guaranty under the guise of interpreting our own constitution; rather than going beyond the confines of the federal constitution on state constitutional grounds.

In Salyer and Ball, the Supreme Court set forth the test for determining when statutes governing the election of representatives in special purpose municipal districts are exempt from the strict scrutiny to which the regulation of voting rights is normally subjected. In each case, the Court looked to whether the type of authority exercised by the limited purpose district was governmental in nature. Factors considered were the district's ability to impose taxes, enact laws governing the conduct of citizens or "administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services." Ball, 451 U.S. at 366, 101

S.Ct. at 1818. Once the court was satisfied that the district's authority was limited to facilitating a nongovernmental purpose, it inquired only whether the voting scheme at issue was reasonable.

In Salyer, the Court upheld a statute which gave greater influence in water district elections to those voters most affected by the district's operations. Specifically, the statute permitted only landowners to vote in general district elections and apportioned these votes according to the assessed valuation of the land. The cost of the district's projects were assessed against the land according to the benefits received. The Court reasoned that, because the district exercised little governmental authority, the requirements of Reynolds v. Sims, supra, were inapplicable. It then found the legislature's apportionment scheme reasonable because the burden of assessments generally impacted landowners unequally, according to the size of their land holdings.

In Ball, the Court considered the nongovernmental activities of the water district and the primary purpose originally served by the district's organization. Once it had characterized the district's primary purpose the Court looked to the persons most significantly impacted by this purpose. The Court held that the federal constitution would permit a franchise limited to those most affected. It then found reasonable and upheld a voting scheme which limited the right to vote in water district elections to landowners and apportioned voting power according to the number of acres owned.

We find the Ball court's analysis inconsistent with Const. art. 1, Sec. 19 as interpreted by Malim and Carstens. The Ball Court's narrow focus upon the original irrigation purpose of the district caused it to recognize only the interests of landowners. Yet the district also generated and supplied electricity to approximately 240,000 consumers and derived 98 percent of its total operating revenue from this activity. Thus, nonlandowners, too, were significantly affected by the district's policies. The cost of the district's "primary function" of providing irrigation water for agriculture was borne by many who had no voice whatever in district policy. Ball, at 381-85, 101 S.Ct at 1826-28 (White, J., dissenting).

While it is consistent with Const. art. 1, Sec. 19 to permit limited electoral qualifications in special purpose districts where their activities are largely nongovernmental in nature, and where the issue being voted upon disproportionately affects a definable class, State v. Wilson, supra, it demands that those constitutionally qualified electors who are significantly affected by district decisions be given an opportunity to vote for the representative of their choice in district elections. Malim v. Benthien, supra.

Whether the right to vote is in fact so apportioned is subject to strict judicial scrutiny.

We find that SVID does not possess the general governmental powers which require imposition of the one-person, one-vote rule of Reynolds v. Sims, supra. Although the district has broad authority to develop and maintain a system for delivery of irrigation water and generation of electricity, RCW 87.03.015, it is not empowered to impose ad valorem property or sales taxes, enact laws governing the conduct of citizens or administer the normal functions of government.

While the record before us is inadequate to permit a determination of the district's actual impact upon its residents, we note that its statutory authority is broad and its potential impact is great. Appellant residential landowners living within the Wise subdivision are directly and significantly affected by the district's operation. The district's voting scheme has denied them their right to vote in violation of Const. art. 1, Sec. 19 and Const. art. 6, Sec. 1 (amend. 63). Accordingly, the district must hereinafter permit those citizens living within the Wise residential subdivision to vote in district elections. It must also repay appellants the monies assessed on their property for the period during which they were denied this right.

Discussion Notes

1. What sort of "local government" was the Sunnyside Valley Irrigation District?

Can the district constitutionally accord greater weight to votes cast by some members of the class directly affected by district operations than it does to other members of this class? We find the federal rationale for upholding such voting scheme consistent with Const. art. 1, Sec. 19. Such schemes are based upon the allocation of burden upon residents within the district. Those residents receiving more of the burden are entitled to a greater say in the district's operation. See, e.g., Salyer Land Co. v. Tulare Lk. Basin Water Storage Dist., supra. The allocation reflected in the legislative scheme here is inadequate, however, under Const. art. 1, Sec. 19, because it does not account for a class of persons significantly affected by the district's operations. It gives them no voice. Once the Legislature has determined the district's relative impact upon definable classes within its boundaries, it may apportion votes according to this impact.

We hold, therefore, that RCW 87.03.045 violates the Washington constitutional guaranty of free and equal suffrage. The judgment is reversed in part and respondent is ordered to remit to appellants all assessments taken while they were denied the right to vote in district elections.

2. Consider Justice Utter's approach to the state and federal constitutional issues in this opinion in light of his expressed views in the excerpts from his article on page 108.