(dissenting) — Since Story v. Anderson, 91 Wn.2d 667, 588 P.2d 1179, 590 P.2d 1272 (1979) was decided, the personnel of this court has changed, and upon rehearing so did the court's decision in the case. I regret that action for it deprives the United States Supreme Court of an opportunity to proclaim that good common sense is also good constitutional law.
The general scheme of county government, where the commissioner system is used, is set forth in the majority opinion. Each commissioner district in the county is to have approximately the same population. RCW 36.32.020. The legislature has, however, recognized that counties comprised entirely of islands may have valid local reasons for having districts that do not meet the equal population criterion, and it provided for those counties by section (1) of RCW 36.32.020. The section provides:
The commissioners of any county composed entirely of islands may divide their county into three commissioner districts without regard to population, except that if any single island is included in more than one district, the districts on such island shall comprise, as nearly as possible, equal populations;
(Italics mine.)
Island County consists, for all practical purposes, of Whidbey Island and Camano Island. The commissioners of the county opted to use the quoted section and divided Whidbey Island into two commissioner districts and constituted Camano Island the third district. As the majority opinion details, the population of Camano Island is substantially less than the population of either of the two commissioner districts on Whidbey Island.
*557I can see no practical reason for invalidating this scheme. The local population is satisfied. If it were not, it could and would have effected a change. The present plan was not forced on the county by the legislature. Rather, it was provided as an option which Island County could utilize or not, as it chose. The commissioners of the county adopted the current plan as one best meeting the local needs of Island County. Any time two of the commissioners are convinced otherwise, they can change the districts. This is complete local control.
No invidious discrimination is visited upon any person or group in Island County by the current scheme of electing commissioners. No majority is trampling on the rights of a minority, nor is a minority in any manner holding a majority in bondage. All in reality that is being accomplished is that Camano Island is assured of a representative on the board of commissioners by what, in effect, is a residency requirement. If the primary election nominating process provided for countywide voting as does the general election, no constitutional defect could be found with the current scheme. Dallas County v. Reese, 421 U.S. 477, 44 L. Ed. 2d 312, 95 S. Ct. 1706 (1975).
It is little wonder the majority of Island County citizens are content to let Camano Island folks nominate from among their own the candidates for county commissioner, for the entire county electorate makes the final selection in the general election. Of what import is it to the ordinary voter on Whidbey Island that theoretically fewer voters on Camano Island can nominate a candidate for commissioner than can voters on Whidbey Island? I venture to say little or none.
The majority, however, finds constitutional evil because there are less potential voters in the Camano Island commissioner district than the two on Whidbey Island. Camano Island voters have more theoretical weight to each of their votes in the primary than do voters in the other two districts. I say "theoretical weight" for there is no weight to a vote not cast and primary elections are notorious for light *558votes. Those who do not vote at all cannot be much concerned with the "weight" of the votes of those who do. That the residents of the Whidbey Island districts are not disturbed is patent, or they would prevail upon their commissioners to change the system.
As the majority opinion is written, it stands for the proposition that one malcontent is entitled to have this court demolish a working commissioner system even if every other person in the county approved of it. That, to me, is constitutionalism for the sake of constitutionalism and makes little sense.
In this instance, the court mandates redistricting. That means Camano Island will be in a commissioner district with a majority of the population on Whidbey Island. In all likelihood that portends, sooner or later, that the district's commissioner will not reside on Camano Island. Thereby the majority of this court forces upon the county what the majority of its voters obviously did not want or the system would long since have been changed.
Prior to the rehearing of this case, the court requested the Attorney General to submit a brief as amicus curiae. Such a brief was provided. In the amicus brief the court was urged to adhere to its original opinion (Story v. Anderson, supra). In my view, the court would have been well advised to follow the recommendation of the Attorney General in this case.
I dissent.
Rosellini and Dolliver, JJ., concur with Hicks, J.