Opinion Number

Dear Mayor Baquet:

We are in receipt of your request for an Attorney General's opinion regarding the reapportionment of the City of Ville Platte. Your letter states that the city presently has six aldermen, five of whom are elected from districts and one which is elected at large. The city submitted a redistricting plan for preclearance to the U.S. Department of Justice and was advised in December of 1993 that the plan was objectionable. The city requested reconsideration and was advised in April of 1994 that the objection would not be withdrawn. The city has declined to seek a declaratory judgment in the U.S. District Court for the District of Columbia. The city has not yet adopted a new reapportionment plan for the fall elections, for which qualifying begins July 27, 1994.

You have requested an opinion on the following questions:

1. Does the city in adopting a new reapportionment plan have the authority pursuant to R.S. 33:382 (and in particular subsection D of said statute), or any other appropriate statutes, to vary from its previous plan and choose to increase its number of aldermen and have them all run for election in districts thereby doing away with the one alderman position who runs for election at large?

2. If the city does not adopt a reapportionment plan in time for the general election on October 1, 1994 and the aldermen who are elected in districts are not able to run for election, what does the one alderman who runs at large do? Is he to be elected with other municipal officials who run at large or must he await the outcome of a new reapportionment plan like the other aldermen who run for election in districts?

3. Assuming that the one alderman at large must run for election on October 1, 1994 and is elected, what occurs to this alderman if a new reapportionment plan is later adopted (and not objected to by the Justice Department) which would abolish his at large district?

LSA-R.S. 33:1371 provides as follows:

A. (1) Except as otherwise provided in a home-rule charter, the governing authority of any municipality which contains two or more districts from which public officials are elected shall, within one year after the officials release of every decennial census, examine the apportionment plan of the municipal districts composing the municipal governing authority to determine if there exists any substantial variation in the representation of the districts. After the examination the governing authority of such municipality shall, by ordinance adopted by a majority of the members thereof, either declare the apportionment of the districts to be equitable and continue its existing apportionment plan or provide for a new apportionment plan.

(2) The time period for examination of the apportionment plan of municipal districts, as provided herein, for municipalities governed by the provisions of Part I of Chapter 2 of Title 33 of the Louisiana Revised Statutes of 1950 shall be within six months of the official release of every decennial census.

B. If reapportionment is necessary it shall be made effective at the end of the term of the incumbent officials. However, the effective date of such reapportionment shall not occur between the date on which municipal officials qualify for election and the date of the election.

C. The boundaries of any election district for a new apportionment plan from which members of a municipal governing authority are elected shall contain whole election precincts established by the parish governing authority under R.S. 18:532 or 532.1. (emphasis added.)

In response to your first question, LSA-R.S. 33:382(A) provides that the number of aldermen in a city shall not be less than five nor more than nine. Paragraph B provides for the method of electing aldermen from districts and from the city at large. However, as you pointed out, LSA-R.S. 33:382(D) authorizes the board of aldermen to establish a different method of electing aldermen, i.e., election at large or election at large and from districts. This paragraph specifically states, however, that "[n]o ordinance changing the manner in which aldermen are elected shall be adopted within one year of the date of an election for aldermen."

Furthermore, LSA-R.S. 18:1921-1923 provide time requirements and penalties for local reapportionment, as well as R.S. 33:1371 cited above. R.S. 18:1923 states that the "failure to meet any of the requirements of R.S. 18:1922 shall be misfeasance in office" and "[m]ay subject the local governing authority to the sanction of having the amount of any state revenue sharing funds payable to that governing authority withheld, reduced, or both."

Therefore, it is our opinion with regard to your first question that the city does have the authority to provide a different method of electing aldermen, i.e., either at large or at large and districts. However, it is clear that the city has failed to comply with all provisions of law mandating that reapportionment occur within the specified time period, which may subject the city officials to misfeasance in office as well as withholding or reduction of state revenue sharing funds. Therefore, we do not find it appropriate at this time to opine on your second and third questions, since any legal advice may be interpreted as approval of the city's failure to reapportion at this time. We suggest that the city proceed to adopt a reapportionment plan that is in compliance with state and federal law as soon as possible.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

_________________________ ANGIE ROGERS LaPLACE Assistant Attorney General

RPI/ARL:pb/0298s

Hon. Bennett Baquet Mayor, City of Ville Platte P.O. Box 390 Ville Platte, LA 70586

DATE RECEIVED:

DATE RELEASED:

ANGIE ROGERS LaPLACE ASSISTANT ATTORNEY GENERAL

OPINION NUMBER 91-208

RELEASED JUNE 25, 1991

92-A-a — REAPPORTIONMENT R.S. 33:1411, R.S. 18:531, R.S. 18:532.1, R.S. 18:1906 Art. 3 Sec. 6(A), R.S. 18:1922, R.S.18:1923

1990 Bureau of Census Provisions of Public Law 94-171 Appendix D

Relative to whether the inmates at Washington Correctional Institute are to be included when working on reapportionment lines?

Mr. Billy Wayne Rester President Washington Parish Police Jury Courthouse Bldg. Franklinton, LA 70438

Dear Mr. Rester:

We are in receipt of your letter requesting an opinion regarding reapportionment. Specifically, you asked:

Whether the inmates at Washington Correctional Institute are to be included or excluded when working on reapportionment lines?

Local government reapportionment is required under the provisions of R.S. 33:1411 as follows:

"A. All parish governing authorities the form of government of which provides for the election of all or part of its members from wards, districts or other subdivisions shall within six months after the official release of every decennial census, examine the apportionment plan of its body to determine if there exists any substantial variation in the representation of the election districts. After this examination the body shall by ordinance adopted by a majority of the members thereof, either declare its apportionment to be equitable and continue its existing apportionment plan or provide for a new apportionment plan.

B. If reapportionment be necessary it shall be made effective at the end of the term of the incumbent officials.

C. The boundaries of any election district for a new apportionment plan from which members of the parish governing authority are elected shall contain the whole election precincts established by the parish governing authority under R.S. 18:532 or 532.1."

The Bureau of the Census of the United States Department of Commerce has provided for 1990 population and housing counts in the provisions of Public Law 94-171. Appendix D. Collection and Processing Procedures of Public Law 94-171, attached for your review, provides the following:

"Person in Institutions — Persons under formally authorized, supervised care or custody, such as in federal or state prisons; local jails; federal detention centers; juvenile institutions; nursing, convalescent, and rest homes for the aged and dependent; or homes, schools, hospitals, or wards for the physically handicapped, mentally retarded, or mentally ill, were counted at these places." (Emphasis Added.)

An information specialist for the U.S. Census Bureau stated that it is ironclad procedure that prisoners are counted where they are located.

The Louisiana Election Code provides for the tabulation of population for legislative reapportionment in R.S. 18:1906. Specifically, section 1906 provides:

"In accordance with Article III, Section 6(A) of the Constitution of Louisiana, the tabulation of population for each decennial census on the basis of which the legislature shall reapportion the representation in each house shall be the tabulation of population reported and transmitted by the United States Bureau of the Census to the governor and the legislature within one year after the census date, under the provisions of Public Law 94-171. Such tabulation of population shall be the sole basis for the establishment of legislative districts, and no other or subsequent tabulation of population shall be considered or utilized in such reapportionment."

As stated above, the "tabulation of population shall be the sole basis" for reapportioning legislative districts. The Code provides a time frame for local reapportionment and provides sanctions for failure to meet such time frame at R.S. 18:1922 and 1923. Under these provisions for "Local Reapportionment", the Code does not specify that local reapportionment shall be based solely on the tabulation of population by the Census Bureau as stated above for legislative reapportionment. However, it is logical to reapportion local districts on the same basis as legislative districts.

In conclusion, since prisoners are included in the tabulation of population for the State of Louisiana where they are located, the Washington Parish Police Jury shall include the inmates at Washington Correctional Institute when working on their reapportionment lines.

If I can be of further assistance, please advise.

Sincerely,

WILLIAM J. GUSTE, JR. Attorney General

BY: ANGIE ROGERS LaPLACE Assistant Attorney General

Dear Mr. Cannon:

We are in receipt of your request on behalf of the City Council (Board of Aldermen) of the City of Tallulah for an Attorney General's opinion regarding the deadline for reapportioning a Lawrason Act municipality. We restate your question as follows:

When is the deadline after the latest decennial census by which a Lawrason Act Municipality is required to adopt and implement a plan of redistricting of the districts from which members of the Municipality's City Council (Board of Aldermen) are elected?

Your letter further states that the next qualifying period for the next election for Mayor and City Council members is February 13-15, 2002 and the next elections for these offices are April 6, 2002 for the primary election and May 4, 2002 for the general election. You also question whether R.S. 18:1921-1923 and R.S. 33:1371 have been precleared by the United States Department of Justice. The answer to this question is yes. Louisiana Acts 1984, No. 672 enacted R.S. 18:1921-1923, and received a no objection letter under Section 5 of the 1965 Voting Rights Act by the United States Department of Justice on December 4, 1984. Additionally, R.S. 33:1371 was enacted by Louisiana Acts 1981, No. 855
(no objection 10/23/81), and amended by Acts 1982, No. 558 (no objection 8/3/83), Acts 1986, No. 1072 (no objection 11/14/86), and Acts 1999, No. 326 (no objection 3/20/00).

The Louisiana Election Code provides for the time for reapportioning, except when provided otherwise by either the constitution or laws of this state. Louisiana Acts 1984, No. 672, added R.S. 18:1921-1923, as follows:

R.S. 18:1921 Applicability

This Chapter applies to any local governing body, including but not limited to any police jury, city or parish council, or school board, which is required under the constitution or laws of this state or of the United States to reapportion its voting districts following each decennial census.

R.S. 18:1922 Time for reapportionment; submission under Voting RightsAct

A. Unless a different period of time is specified by the constitution or by statute, the governing authority of each local governing body shall reapportion its voting districts by the end of the year following the year in which the population of this state is reported to the president of the United States for each decennial census.

B. If the governing body is subject to the preclearance provisions of Section 5 of the Voting Rights Act of 1965, the governing authority shall submit the reapportionment plan to the Department of Justice no later than one hundred and twenty days after the adoption of the reapportionment plan by the governing authority. (Emphasis added).

R.S. 18:1923 Failure to comply; misfeasance; sanctions

A. Failure to meet any of the requirements of R.S. 18:1922
shall be misfeasance in office.

B. Failure to meet any of the requirements of R.S. 18:1922
may subject the local governing authority to the sanction of having the amount of any state revenue sharing funds payable to that governing authority withheld, reduced, or both.

In Attorney General Opinion No. 94-379 [copy enclosed herein], where the City of Ville Platte [a Lawrason Act municipality] did not have a precleared plan for the 1994 fall elections, we opined:

[L]SA-R.S. 18:1921-1923 provide time requirements and penalties for local reapportionment, as well as R.S. 33:1371 cited above. R.S. 18:1923 states that the `failure to meet any of the requirements of R.S. 18:1922
shall be misfeasance in office; and `[m]ay subject the local governing authority to the sanction of having the amount of any state revenue sharing funds payable to that governing authority withheld, reduced, or both.'

. . . However, it is clear that the city has failed to comply with all provisions of law mandating that reapportionment occur within the specified time period, which may subject the city officials to misfeasance in office as well as withholding or reduction of state revenue sharing funds.

In Attorney General Opinion No. 91-208 [copy enclosed herein], on the issue of including inmates for reapportionment purposes, we stated:

Local government reapportionment is required under the provisions of R.S. 33:1411 . . . The [Election] Code provides a time frame for local reapportionment and provides sanctions for failure to meet such time frame at R.S. 18:1922 and 1923.

While these opinions are relevant, they do not definitely answer your question. What is clear from these opinions is that the Election Code does provide a time frame for reapportioning, which for the 2000 census is December 31, 2001, unless a different period of time is specified bythe constitution or by statute.

LSA-R.S. 33:1371 provides for municipal reapportionment1. This law was enacted in 1981 by Louisiana Acts, No. 855, and amended by Act 558 (1982), Act 1072 (1986) and Act 326 (1999). The law provides as follows:

R.S. 33:1371 Reapportionment of municipal districts required after eachdecennial census; effective date

A. (1) Except as otherwise provided in a homerule charter, the governing authority of any municipality which contains two or more districts from which public officials are elected shall, within one year after the official release of every decennial census, examine
the apportionment plan of the municipal districts composing the municipal governing authority to determine if there exists any substantial variation in the representation of the districts. After the examination the governing authority of such municipality shall, by ordinance adopted by a majority of the members thereof, either declare the apportionment of the districts to be equitable and continue its existing apportionment plan or provide for a new apportionment plan.

(2) The time period for examination of the apportionment plan of municipal districts, as provided herein, for municipalities governed by the provisions of Part I of Chapter 2 of Title 33 of the Louisiana Revised Statutes of 1950 shall be within six months of the official release of every decennial census.

B. If reapportionment is necessary it shall be made effective at the end of the term of the incumbent officials. However, the effective date of such reapportionment shall not occur between the date on which municipal officials qualify for election and the date of the election.

C. The boundaries of any election district for a new apportionment plan from which members of a municipal governing authority are elected shall contain, to the extent practicable, whole election precincts established by the parish governing authority under R.S. 18:532 or 532.1.

In accordance with Article 13 of the Civil Code, all of these laws [R.S.18:1921-1923 and R.S. 33:1371] are on the same subject matter and must be interpreted in reference to each other. It is our opinion that R.S.33:1371 only provides for an examination period, that being six months for Lawrason Act municipalities and one year for all other municipalities which do not have a home rule charter that provides otherwise. We do not find any clear language in this statute which specifies a time or deadline by which reapportionment, if necessary, must be accomplished. Thus, R.S. 18:1922 is the only requirement by law which provides for a deadline to reapportion and applies herein2.

Since the census data [not the population data] was released to the State of Louisiana in March of 2001, the language of R.S. 33:1371 indicates that the examination period for a Lawrason Act municipality is required to be completed in six months [September of 2001] and the municipality has two choices, (1) adopt an ordinance stating that the present apportionment is equitable and it will continue to be used, or (2) adopt an ordinance which provides for a new apportionment of the municipal districts. If the municipality chooses to reapportion, same is required to be done by the end of the year following the year in which the population of this state was reported to the president [December 31, 2001].

For all other municipalities which do not have a home rule charter provision that provides otherwise, although the examination period is one year [March 2000 — March 2001], the latest expression of law, R.S. 18:1922, requires reapportionment, if necessary, to be completed by December 31, 2001.

If a municipality provides for a new apportionment plan, the law [R.S.33:1371(B)] provides that it be effective at the end of the incumbents' term. In other words, the new apportionment plan can not affect the incumbents' term. Additionally, a new apportionment plan can not become effective between the date of qualifying and the election. In other words, the new apportionment plan must become effective prior to the election so that candidates run from properly apportioned districts in accordance with the one-person, one-vote principles of federal law3. Finally, a new apportionment plan must become effective in time to complete a Section 5 submission under the 1965 Voting Rights Act, which takes at least 60 days alone for the review period4.

The Secretary of State's office has advised that 26 municipalities will have elections in the spring of 2002, with the primary election being held on April 6, 2002. Thus, completing reapportionment, if necessary, by December 31, 2001 will increase the likelihood of having sufficient time for the municipalities to obtain Section 5 approval by the U.S. Department of Justice in time for these elections. Last, but not least, the Registrars of Voters across the state will also need sufficient time in which to implement the new election data into their system for voting purposes.

If we can be of further assistance, please advise.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

__________________________ ANGIE ROGERS LAPLACE Assistant Attorney General

RPI/ARL;mjb Enclosures

Cc: LA House Governmental Affairs Committee, Reapportionment Subcommittee LA Senate Governmental Affairs Committee Secretary of State Commissioner of Elections

1 LSA-R.S. 33:1411 provides for reapportionment of parish governments.

2 R.S. 17:71.5 does provide for a different time period for completing reapportionment of school boards, which is on or before December 31 of the second year following the year in which the population of Louisiana was reported to the president [December 31, 2002], and thus, R.S. 18:1922 is not applicable to school boards.

3 See, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964), and U.S.C.A. Const. Amend. 14.

4 See, 42 U.S.C.A. 1973.