A member of appellee Popular Democratic Party (hereafter
appellee) who was elected in a 1980 general election to the Puerto
Rico House of Representatives from District 31, died in 1981. The
Governor of Puerto Rico subsequently called for a "by-election" --
open to all qualified voters in District 31 -- to fill the vacancy.
Appellee then filed suit in the Superior Court of Puerto Rico,
alleging that the Puerto Rico statutes under which the Governor
purported to act authorized only candidates and electors affiliated
with appellee to participate in the by-election. Appellants,
qualified electors in District 31 who are not affiliated with
appellee, intervened as defendants. The court entered judgment for
appellee. The Puerto Rico Supreme Court modified the Superior
Court's judgment, holding,
inter alia, that the pertinent
statute, as properly construed, requires a by-election only if the
party of the legislator vacating the seat fails to designate a
replacement within 60 days after the vacancy occurs, and that, if
the party selects a single candidate within such period, that
candidate is declared "automatically elected to fill the vacancy."
The court rejected appellants' contention that this procedure
violated the Federal Constitution. While the case was pending
before the Puerto Rico Supreme Court, appellee held a primary
election in which only its members were permitted to participate,
and which resulted in the selection of a person who, pursuant to
the Supreme Court's mandate, was sworn in as the new representative
from District 31.
Held: The Puerto Rico statute, as interpreted by the
Puerto Rico Supreme Court to vest in a political party the initial
authority to appoint an
Page 457 U. S. 2
interim replacement for one of its members who vacates a
position as a district senator or representative, does not violate
the Federal Constitution. Pp.
457 U. S.
5-14.
(a) The voting rights of Puerto Rico citizens are
constitutionally protected to the same extent as those of all other
United States citizens. At the same time, Puerto Rico, like a
state, is an autonomous political entity, "sovereign over matters
not ruled by the Constitution,"
Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U. S. 663,
416 U. S. 673,
and the methods by which its people and their representatives have
chosen to structure the Commonwealth's electoral system are
entitled to substantial deference. Pp.
457 U. S. 7-8.
(b) The right to vote,
per se, is not a
constitutionally protected right, and the Constitution does not
compel a fixed method of choosing state or local officers or
representatives. While a citizen has a constitutionally protected
right to participate in elections on an equal basis with other
citizens in the jurisdiction when a state or the Commonwealth of
Puerto Rico has provided that its representatives be elected, the
Puerto Rico statute at issue does not restrict access to the
electoral process or afford unequal treatment to different classes
of voters, candidates, or political parties. All qualified voters
have an equal opportunity to select a district representative in
the general election; and the interim appointment provision applies
uniformly to all legislative vacancies, whenever they arise.
Cf. Valenti v. Rockefeller, 393 U.
S. 405. Moreover, the interim appointment system serves
the legitimate purpose of ensuring that vacancies are filled
promptly, without the necessity of the expense and inconvenience of
a special election. Pp.
457 U. S.
8-12.
(c) Nor is Puerto Rico's appointment mechanism rendered
constitutionally defective by virtue of the fact that the interim
appointment power is given to the political party with which the
previous incumbent was affiliated. The Puerto Rico Legislature
could reasonably conclude that appointment by the previous
incumbent's political party would more fairly reflect the will of
the voters than appointment by the Governor or some other elected
official, particularly where such official is a member of a
different party. And in light of Puerto Rico's special interest in
ensuring minority representation in its legislature, it was not
unreasonable for the legislature, in establishing the appointment
system for filling vacancies, to make provision for continuity of
party representation. Pp.
457 U. S.
12-13.
(d) Appellants' rights of association and equal protection of
the laws were not violated by their exclusion, because of their
party affiliation, from appellee's special election held to select
the interim representative. Puerto Rico law authorized appellee to
designate the interim replacement, and it was entitled to adopt its
own procedures for such selection.
Page 457 U. S. 3
Appellee was not required to include participation by
nonmembers. P.
457 U. S. 14.
___P.R.R. ___, affirmed.
BURGER, C.J., delivered the opinion for a unanimous Court.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented by this appeal is whether Puerto Rico
may, by statute, vest in a political party the power to fill an
interim vacancy in the Puerto Rico Legislature. The Supreme Court
of Puerto Rico held that such a procedure did not violate the
United States Constitution. We noted probable jurisdiction, 454
U.S. 938 (1981), and we affirm.
I
In the November 4, 1980, Puerto Rico general election, Ramon
Muniz, a member of appellee Popular Democratic Party, was elected
to the Puerto Rico House of Representatives from District 31.
[
Footnote 1] Muniz died on
January 28, 1981. The Governor of Puerto Rico, a member of the
opposition New Progressive Party, subsequently called for a
"by-election" -- open to all qualified voters in District 31 -- to
fill the vacancy caused by Muniz' death. The Governor purported to
act pursuant to Articles 5.006 and 5.007 of the Electoral Law of
Puerto Rico, P.R Laws Ann., Tit. 16, §§ 3206, 3207 (Supp.1980).
[
Footnote 2]
Page 457 U. S. 4
On March 3, 1981, the Popular Democratic Party instituted this
action in the Superior Court of Puerto Rico, alleging that Articles
5.006 and 5.007 authorized only candidates and electors affiliated
with the Party to participate in the by-election. Appellants, 10
qualified electors in District 31 who are not affiliated with the
Popular Democratic Party, intervened as defendants. On March 20,
1981, the Superior Court entered judgment for the Popular
Democratic Party; it ordered the Governor and General Administrator
of Elections to limit participation in the by-election to Party
members. App. to Juris.Statement 36a.
A divided Supreme Court of Puerto Rico modified the Superior
Court's judgment. It interpreted Articles 5.006 and 5.007 to
require a by-election only in the event that the party of the
legislator vacating the seat fails to designate a replacement
within 60 days after the vacancy occurred; if the party selects a
single candidate within the 60-day period, that candidate is
"automatically elected to fill the vacancy," rendering a
by-election unnecessary.
Popular Democratic Party v.
Barcelo, ___ P.R.R. ___ (1981). The court held further that,
if the party presents more than one candidate during the 60-day
period, a by-election must be conducted in
Page 457 U. S. 5
which only party-affiliated candidates may run but in which all
qualified electors may vote. In the event no candidate is presented
within the 60-day period, candidates affiliated with any party, as
well as independent candidates, are permitted to run in the
by-election. Because of the delay already occasioned by the
litigation, the court permitted appellee Party only 30 days from
the entry of judgment, May 8, 1981, to present a "slate" of
candidates to the Commonwealth Election Commission. The court
ordered that,
"[i]f said slate is limited to only one candidate, he shall be
certified by the General Administrator of Elections as the person
entitled to hold the vacant seat."
Id. at ___. [
Footnote
3]
The court rejected appellants' contention that this procedure
violated the United States Constitution. It noted that the
Constitution does not expressly require a fixed method for filling
vacancies in a state or commonwealth legislature. The court also
held that Puerto Rico's party appointment system serves several
"compelling interests," such as ensuring the stability and
continuity of the "legislative balance" until the next general
election; protecting the "electoral mandate" of the previous
election; and reducing "inter-partisan political campaigns to once
every four years."
Id. at
II
Puerto Rico, in common with many of the States, has adopted
means of filling interim vacancies in elective commonwealth offices
without the necessity of a full-scale special election. [
Footnote 4] If a vacancy occurs in the
office of Governor, it is
Page 457 U. S. 6
automatically filled by the Secretary of State, an officer
appointed by the Governor. P.R.Const., Art. IV, § 7. Mayoral
vacancies and vacancies in the municipal assemblies are filled by
appointment upon the recommendation of the political party to which
the incumbent belonged. P.R Laws Ann., Tit. 21, §§ 1161, 1259
(1974). Similarly, the Commonwealth Constitution provides that
vacancies in the posts of at-large senators and representatives,
see n 3,
infra, shall be filled "upon recommendation of the
political party to which belonged the Senator or Representative
causing the vacancy. . . ." Art. III, § 8. Article 5.006 of the
Puerto Rico Electoral Law, as interpreted by the Supreme Court of
Puerto Rico in this case, likewise confers on a political party the
initial opportunity to appoint an interim replacement for one of
its members who vacates a position as a district senator
Page 457 U. S. 7
or representative. In each case, the appointee serves only until
the next regularly scheduled election. [
Footnote 5]
Appellants' challenge to the procedure mandated by Article 5.006
is essentially two-pronged. Appellants first contend that qualified
voters have a federal constitutional right to elect their
representatives to the Puerto Rico Legislature, and that vacancies
in legislative offices therefore must be filled by a special
election open to all qualified electors, not by interim appointment
of any kind. Alternatively, appellants maintain that, even if
legislative vacancies may be filled by an interim appointment of
the Governor or some other elected official, Puerto Rico's party
appointment mechanism impermissibly infringes upon their right of
association under the First Amendment and denies them equal
protection of the laws.
A
It is not disputed that the fundamental protections of the
United States Constitution extend to the inhabitants of Puerto
Rico.
See Torres v. Puerto Rico, 442 U.
S. 465,
442 U. S.
469-470 (1979).
Cf. Dorr v. United States,
195 U. S. 138,
195 U. S. 148
(1904). In particular, we have held that Puerto Rico is subject to
the constitutional guarantees of due process and equal protection
of the laws.
Examining Board v. Flores de Otero,
426 U. S. 572,
426 U. S.
599-601 (1976);
Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U. S. 663
(1974). [
Footnote 6] We thus
think
Page 457 U. S. 8
it is clear that the voting rights of Puerto Rico citizens are
constitutionally protected to the same extent as those of all other
citizens of the United States.
At the same time, Puerto Rico, like a state, is an autonomous
political entity, "
sovereign over matters not ruled by the
Constitution.'" Calero-Toledo, supra, at 416 U. S. 673
(quoting Mora v. Mejias, 115 F.
Supp. 610 (PR 1953)). See Cordova & Simonpietri Ins.
Agency Inc. v. Chase Manhattan Bank, 649 F.2d 36, 39-42 (CA1
1981). The methods by which the people of Puerto Rico and their
representatives have chosen to structure the Commonwealth's
electoral system are entitled to substantial deference. Moreover,
we should accord weight to the Puerto Rico Supreme Court's
assessment of the justification and need for particular provisions
to fill vacancies caused by the death, resignation, or removal of a
member of the legislature. Bearing these considerations in mind, we
turn to appellants' constitutional challenges.
B
No provision of the Federal Constitution expressly mandates the
procedures that a state or the Commonwealth of Puerto Rico must
follow in filling vacancies in its own legislature.
Cf.
U.S.Const., Art. I, § 2; Amdt. 17, cl. 2. [
Footnote 7] Appellants nevertheless maintain that
qualified electors have an
Page 457 U. S. 9
absolute constitutional right to vote for the members of a state
or commonwealth legislature, even when a special election is
required for this purpose. [
Footnote 8] However, this Court has often noted that the
Constitution "does not confer the right of suffrage upon any one,"
Minor v.
Happersett, 21 Wall. 162,
88 U. S. 178
(1875), and that "the right to vote,
per se, is not a
constitutionally protected right,"
San Antonio Independent
School Dist. v. Rodriguez, 411 U. S. 1,
411 U. S. 35, n.
78 (1973).
See McPherson v. Blacker, 146 U. S.
1,
146 U. S. 38-39
(1892). Moreover, we have previously rejected claims that the
Constitution compels a fixed method of choosing state or local
officers or representatives.
For example, in
Fortson v. Morris, 385 U.
S. 231,
385 U. S. 234
(1966), Justice Black, speaking for the Court, stated:
"There is no provision of the United States Constitution or any
of its amendments which either expressly or impliedly dictates the
method a State must use to select its Governor."
In
Fortson, the Court sustained a Georgia
constitutional provision empowering the state legislature to elect
a Governor from the two candidates receiving the highest number of
votes cast in the general election, in the event neither received a
majority. Similarly, in
Sailors v. Board of Education,
387 U. S. 105
(1967), the Court upheld a statute authorizing
Page 457 U. S. 10
appointment, rather than election, of the members of a county
school board. [
Footnote 9]
To be sure, when a state or the Commonwealth of Puerto Rico has
provided that its representatives be elected, "a citizen has a
constitutionally protected right to participate in elections on an
equal basis with other citizens in the jurisdiction."
Dunn v.
Blumstein, 405 U. S. 330,
405 U. S. 336
(1972).
See Kramer v. Union Free School District,
395 U. S. 621,
395 U. S.
626-629 (1969);
Gray v. Sanders, 372 U.
S. 368,
372 U. S.
379-380 (1963). However, the Puerto Rico statute at
issue here does not restrict access to the electoral process or
afford unequal treatment to different classes of voters or
political parties. All qualified voters have an equal opportunity
to select a district representative in the general election; and
the interim appointment provision applies uniformly to all
legislative vacancies, whenever they arise. [
Footnote 10]
In
Valenti v. Rockefeller, 393 U.
S. 405 (1969), the Court sustained the authority of the
Governor of New York to fill a
Page 457 U. S. 11
vacancy in the United States Senate by appointment pending the
next regularly scheduled congressional election -- in that case, a
period of over 29 months. [
Footnote 11] Thus, although most Members of the United
States Senate hold office by virtue of popular election, some
Members, at any given time, may hold office by virtue of an interim
appointment. The Court found nothing invidious or arbitrary in this
distinction in
Valenti, nor do we here. As the three-judge
District Court observed in
Valenti:
"In this case, we are confronted with no fundamental
imperfection in the functioning of democracy. No political party or
portion of the state's citizens can claim it is permanently
disadvantaged . . . or that it lacks effective means of securing
legislative reform if the statute is regarded as unsatisfactory. We
have, rather, only the unusual, temporary, and unfortunate
combination of a tragic event and a reasonable statutory
scheme."
Valenti v. Rockefeller, 292 F.
Supp. 851, 867 (SDNY 1968).
Valenti, of course, unlike this case, involved an
interpretation of the Seventeenth Amendment, which explicitly
outlines the procedures for filling vacancies in the United States
Senate.
See n 7,
supra. However, the fact that the Seventeenth Amendment
permits a state, if it chooses, to forgo a special election in
favor of a temporary appointment to the United States Senate
suggests that a state is not constitutionally prohibited from
exercising similar latitude with regard to vacancies in its own
legislature. We discern nothing in the Federal Constitution that
imposes greater constraints on the Commonwealth of Puerto Rico.
Page 457 U. S. 12
The Commonwealth's choice to fill legislative vacancies by
appointment, rather than by a full-scale special election, may have
some effect on the right of its citizens to elect the members of
the Puerto Rico Legislature; however, the effect is minimal, and,
like that in
Valenti, it does not fall disproportionately
on any discrete group of voters, candidates, or political parties.
See n 10,
supra. Moreover, the interim appointment system plainly
serves the legitimate purpose of ensuring that vacancies are filled
promptly, without the necessity of the expense and inconvenience of
a special election. The Constitution does not preclude this
practical and widely accepted means of addressing an infrequent
problem.
C
Puerto Rico's appointment mechanism is not rendered
constitutionally defective by virtue of the fact that the interim
appointment power is given to the political party with which the
previous incumbent was affiliated. Appellants maintain that the
power to make interim appointments must be vested in an elected
official, such as the Governor of the Commonwealth, so that the
appointments will have "the legitimacy of derivative voter approval
and control." Reply Brief for Appellants 15. However, that such
control may often be largely illusory is illustrated by this case,
where the Governor and the incumbent belonged to different parties.
The Puerto Rico Legislature could reasonably conclude that
appointment by the previous incumbent's political party would more
fairly reflect the will of the voters than appointment by the
Governor or some other elected official. [
Footnote 12]
Page 457 U. S. 13
The Supreme Court of Puerto Rico held that party appointment was
a legitimate mechanism serving to protect the mandate of the
preceding election and to preserve the "legislative balance" until
the next general election is held. Such protection is particularly
important in light of Puerto Rico's special interest in ensuring
minority representation in its legislature. [
Footnote 13]
See Garcia v. Barcelo, 671
F.2d 1, 6-7 (CA1 1982). It was thus not unreasonable for the Puerto
Rico Legislature, in establishing an appointment system for filling
legislative vacancies, to make provision for continuity of party
representation.
Cf. Kaelin v. Warden, 334 F.
Supp. 602, 607-608 (ED Pa.1971) (three-judge District Court).
[
Footnote 14] Absent some
clear constitutional limitation, Puerto Rico is free
Page 457 U. S. 14
to structure its political system to meet its "special concerns
and political circumstances,"
Garcia, supra, at 7.
Finally, appellants argue that their rights of association and
equal protection of the laws were violated by their exclusion,
based solely upon their party affiliation, from the Party-sponsored
election held to select Muniz' successor,
see n 3,
supra. Cf. Branti v.
Finkel, 445 U. S. 507
(1980). However, appellants' argument misconceives the nature of
the election held in this case. Puerto Rico law authorized the
Popular Democratic Party to designate an interim replacement to
fill Muniz' seat. The Party was entitled to adopt its own
procedures to select this replacement; it was not required to
include nonmembers in what can be analogized to a party primary
election.
Cf. 450 U. S. S. v.
Wisconsin, 450 U. S. 107
(1981);
Cousins v. Wigoda, 419 U.
S. 477 (1975). Appellants' exclusion from this election
did not violate their rights of association, nor did it deprive
them of equal protection of the laws.
III
We hold that the mechanism adopted by the Puerto Rico
Legislature for filling legislative vacancies is not foreclosed by
the Federal Constitution. Accordingly, the judgment of the Supreme
Court of Puerto Rico is
Affirmed.
[
Footnote 1]
The Puerto Rico Legislative Assembly consists of two chambers --
the House of Representatives, with 51 members, and the Senate, with
27 members. P.R.Const., Art. III, §§ 1 and 2. A single general
election is held in Puerto Rico every four years for all elective
officials. Art. VI, § 4; P.R Laws Ann., Tit. 16, §§ 3201, 3205
(Supp.1980).
[
Footnote 2]
Article 5.006 provides, in pertinent part:
"[W]hen a vacancy occurs in the office of a senator or
representative elected as an independent candidate for a district,
or when a vacancy occurs in the office of a senator or
representative for a district, nominated by a party before the
fifteen (15) months immediately preceding the date of the following
general election, the Governor, with the advice of the
[Commonwealth Election] Commission shall, within the thirty (30)
days following the date on which the vacancy occurred, call a
by-election in such district which shall be held no later than
ninety (90) days after the date of the call, and the person elected
in such by-election shall hold the office until the term of his
predecessor has expired."
"If within sixty (60) days following the date such vacancy
arises, the party to which the legislator of the vacant office
belonged has not presented a candidate to fill such office, the
office shall be deemed to be that of an independent legislator, to
the effects of holding the by-election to fill it."
Article 5.007 provides:
"electors entitled to vote within the geographic district in
which the by-election is to be held, pursuant to the call issued by
the Governor to such effect, shall vote in a by-election."
[
Footnote 3]
On March 22, 1981, while the case was pending before the Supreme
Court of Puerto Rico, the Popular Democratic Party held a primary
election in which only its members were permitted to participate.
From a field of four candidates, the Party's members selected Juan
Corujo Collazo. Pursuant to the Supreme Court's mandate, Corujo
Collazo's name was presented to the Election Commission and, on
July 6, 1981, he was sworn in as the new Representative from
District 31.
[
Footnote 4]
In 22 States, legislative vacancies are filled by appointment,
with the appointee serving either until the next general election
or until expiration of the term of the previous incumbent. Alaska
Stat.Ann. § 15.40.320
et seq. (1975) (unless term expires
or election held before next legislative session convenes);
Colo.Rev.Stat. § 1-1103 (1980); Haw. Rev.Stat. §§ 17-3, 17-4 (1976
and Supp.1981); Idaho Code § 59-904A (1976); Ill.Rev.Stat., ch. 46,
� 25-6 (1980); Ind.Code § 2-2.1-2-1
et seq. (Cum.
Supp.1981); Kan.Stat.Ann. § 25-312 (1981); Md. Const., Art. III, §
13; Mont.Code Ann. § 5-2-401
et seq. (1981); Neb.Rev.Stat.
§ 32-1042(3) (1978); Nev.Const., Art. IV, § 12 (unless biennial or
regular election held between time of vacancy and next legislative
session); N.M.Stat.Ann. §§ 2-7-9B, 29B (1978); N.C.Gen.Stat. §
163-11 (Cum. Supp.1981); Ohio Const., Art. II, § 11; Ore.Rev.Stat.
§§ 171.051, 171.060 (1981) (unless the legislature is not in
session; a general election will be held within 90 days; and no
special session of the legislature will be convened before such
election) S.D.Const., Art. III, § 10; Tenn.Code Ann. § 2-14-201
et seq. (1979) (if less than 12 months remain before next
general election); Utah Code Ann. § 20-1-5 (Supp.1981);
Vt.Stat.Ann., Tit. 17, § 2623 (Supp.1981), Wash. Const., Amdt. 52,
Art. 2, § 15; W.Va.Code § 3-10-5 (1979); Wyo.Stat. §§
22-18-111(a)(ii), (iii) (1977). Like Puerto Rico, five of these
States -- Colorado, Illinois, Indiana, Maryland, and North Carolina
-- confer the appointment power on the political party to which the
previous incumbent belonged. Nine more States -- Alaska, Idaho,
Montana, Ohio, Oregon, Utah, Washington, West Virginia, and Wyoming
-- require that the appointee be selected from a list submitted by
the political party, or that the appointee be chosen or confirmed
by elected officials affiliated with the party. Another two States
-- Hawaii and Nevada -- simply require that the appointee be a
member of the party to which his or her predecessor belonged.
[
Footnote 5]
The current procedure for filling legislative vacancies is
similar to that prescribed by a 1938 amendment to Puerto Rico's
Organic Act, which remained in effect until Puerto Rico assumed
Commonwealth status in 1952. In the 1938 amendment, Congress
mandated that vacancies in the Puerto Rico Legislature be filled by
the Governor "upon the recommendation of the central committee of
the political party of which such senator or representative was a
member." Act of June 1, 1938, ch. 308, § 30, 52 Stat. 595. Title 48
U.S.C. §§ 891, 892 presently provide that vacancies in the elective
office of Resident Commissioner to the United States are to be
filled by appointment of the Governor with the advice and consent
of the Puerto Rico Senate.
[
Footnote 6]
We have never found it necessary to resolve the precise question
whether the guarantee of equal protection is provided to Puerto
Ricans under the Equal Protection Clause of the Fourteenth
Amendment or the Due Process Clause of the Fifth Amendment.
See
Examining Board v. Flores de Otero, 426 U.S. at
426 U. S.
601.
[
Footnote 7]
With regard to Members of the United States House of
Representatives, Art. I, § 2, cl. 4, provides:
"When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill
such Vacancies."
The Seventeenth Amendment provides:
"When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies:
Provided, That the
legislature of any State may empower the executive thereof to make
temporary appointments until the people fill the vacancies by
election as the legislature may direct."
[
Footnote 8]
The source of this purported right is somewhat unclear.
Appellants contend that Art. I, § 2, cl. 1, of the Constitution --
which provides that those eligible to vote for Members of the
United States House of Representatives "shall have the
Qualifications requisite for the Electors of the most numerous
Branch of the State Legislature" -- contemplates that state
legislators will be popularly elected.
See also
U.S.Const., Amdt. 17. Moreover, appellants contend that a popularly
elected legislature is an essential element of a "Republican Form
of Government," U.S.Const., Art. IV, § 4.
See 48 U.S.C. §
731c, requiring Puerto Rico to provide a republican form of
government. However, this seems largely irrelevant, since Puerto
Rico has in fact established a legislature "whose members shall be
elected by direct vote at each general election," P.R.Const., Art.
III, § 1.
See also Art. II, § 2, guaranteeing "equal,
direct, and . . . universal suffrage. . . . "
[
Footnote 9]
In
Sailors, we expressly left open the question
"whether a State may constitute a local
legislative body
through the appointive, rather than the elective, process." 387
U.S. at
387 U. S.
109-110 (emphasis added). However, we need not consider
whether, as urged by appellants, a state or the Commonwealth of
Puerto Rico is constitutionally barred from abolishing its elected
legislative branch of government; that question is not presented.
See n 8,
supra.
[
Footnote 10]
Appellants contend that Article 5.006 "discriminates" between
voters in districts in which a vacancy occurs and those in which
the elected representative or senator serves out his term, because
only the former are denied the opportunity to be represented by an
elected legislator. Obviously, a statute designed to deal with the
occasional problem of legislative vacancies will affect only those
districts in which vacancies actually arise. However, such a
statute is not for this reason rendered invalid under equal
protection principles. A vacancy in the legislature is an
unexpected, unpredictable event, and a statute providing that all
such vacancies be filled by appointment does not have a special
impact on any discrete group of voters or candidates.
Cf.
Bullock v. Carter, 405 U. S. 134
(1972);
Williams v. Rhodes, 393 U. S.
23 (1968). Appellants' equal protection argument adds
nothing to their basic assertion of an absolute constitutional
right to elect representatives to a state or commonwealth
legislature.
[
Footnote 11]
In
Valenti, the vacancy was created by the death of
Senator Robert F. Kennedy on June 6, 1968. Under New York law,
since the vacancy arose less than 60 days prior to New York's
regular spring primary in an even-numbered year, an election to
fill the vacancy would not be held until the general election in
the next even-numbered year,
i.e., November, 1970. The
Governor was empowered to make an interim appointment, effective
until December 1, 1970.
See Valenti v.
Rockefeller, 292 F.
Supp. 851, 853 (SDNY 1968) (three-judge District Court).
[
Footnote 12]
See Garcia v. Barcelo, 671 F.2d 1, 6 (CA1 1982):
"One might argue, as a matter of form, that appointment by a
governor is indeed more 'democratic,' because the governor is
himself elected. Yet, in practice, this is not likely to be so when
the governor and former representative are of different parties. In
that case, the party difference is likely to produce successors of
different parties. In such circumstances, we see how the framers of
a state constitution might conclude that party selection is more
likely to reflect the will of the voters than selection by the
governor, for it was the former representative's party, not that of
the governor, that won the prior seat. Such a judgment, reflecting
a knowledge of political practice, seems perfectly consistent with
the basic democratic role of the modern political party --
translating the individual wills of myriad voters into a
practically achievable program administered by a government that
can be held responsible for its performance at the polls."
[
Footnote 13]
Two devices in Puerto Rico's Constitution ensure representation
of minority parties in the Puerto Rico Legislative Assembly. First,
11 of 27 senators and 11 of 51 representatives are elected
"at-large," and each voter may vote for only one candidate for
senator or representative at-large. Art. III, § 3. Second, if any
one party elects more than two-thirds of the members of either
house of the legislature, the number of members in that house is
increased by declaring elected a sufficient number of minority
party candidates to bring the total number of minority party
members to 9 in the Senate and to 17 in the House. Art. III, § 7.
Appellees maintain that
"the Commonwealth's unique guarantee of minority party
representation . . . is and has been particularly important in
Puerto Rico, far beyond its importance in any State of the Union,
in order to provide a democratic forum and an outlet for the
radically different views of the various political parties as to
the ultimate status of Puerto Rico. . . ."
Brief for Appellees 14.
[
Footnote 14]
Puerto Rico is in no sense unique in maintaining continuity of
party representation between elections; 16 States have chosen to
require that legislative vacancies be filled by appointment of a
person affiliated with the same party as the previous incumbent, or
by designation of that party,
see n 4,
supra.