Rodriguez v. Popular Democratic Party - Oral Argument

ORAL ARGUMENT OF PHILIP A. LACOVARA, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first today in 81-328, Rodriguez against Popular Democratic Party.

Mr. Lacovara.

Mr. Lacovara: Mr. Chief Justice, and may it please the Court, in a series of decisions going back at least a century, this Court has recognized the basic principles that we believe control the case here this morning.

For example, in 1875, the Court stated in Minor against Happersett,

"Necessarily, the members of the legislature are elected by the voters of the state."

In 1964, in the landmark case of Reynolds against Sims, the Court said,

"Representative government is in essence self-government through the medium of elected representatives of the people."

And then, in one of the many, many cases applying the Reynolds versus Sims principle, the Court said in 1969 in Kramer versus the Union Free School District,

"The right to vote establishes the legitimacy of representative government."

Unidentified Justice: Well, counsel, are you suggesting that those cases stand for any more than the proposition that where once a right to vote is accorded, it has to be afforded in a non-discriminatory manner?

Mr. Lacovara: I think they do stand for more than that, Justice Rehnquist, although since Puerto Rico has recognized the right to vote for its legislature, it might be necessary for the Court to go no further than to apply those principles, but we contend that the principles that this Court has already recognized demonstrate that there is an absolute obligation on the part of the states and by virtue of the compact between Puerto Rico and the United States on people of Puerto Rico to provide for an elected legislature.

Unidentified Justice: What provision of the Constitution gives rise to that duty?

Mr. Lacovara: As we have tried to explain in our brief, Justice Rehnquist, the obligation to provide for an elected state legislature appears from at least two provisions of the Constitution.

One, of course, is Article I, Section 2, which necessarily assumes that state legislatures are elected, since it provides that the electors for the United States House of Representatives must be the same as those who are the electors for the state legislature.

In explaining that clause and other similar assumptions underlying the union of states that was forged in the Constitution, James Madison and the other authors of the Federalist Papers treated it as a fundamental given that the union being established under the Constitution was a union of states with a republican form of government, and that a republican form of government included elected legislatures.

Unidentified Justice: How do you explain that in many instances when a Senator, United States Senator dies or leaves office by resignation, the governor is empowered in many instances to appoint his successor until the next election?

Now, he is not elected by the people, then, is he?

Mr. Lacovara: Well, originally, Mr. Chief Justice, the provisions of Article I, Section 3, called for the appointment of all United States Senators by the legislatures.

There was no popular election.

Unidentified Justice: That has changed.

That has changed.

Mr. Lacovara: That has changed.

And the Seventeenth Amendment provides for direct election of Senators, but recognizing the historical tradition of having appointed legislators, the Seventeenth Amendment provides that governors may make temporary appointments, but the Seventeenth Amendment, quite consistent with the tradition on which we are relying, insists that the temporary appointment by the governor may last only until the people, as the Amendment says, have the power, the opportunity to elect a successor.

Unidentified Justice: That might be as much as two years, or lacking a day or two, two years, wouldn't it?

Mr. Lacovara: There is one case in which the... a lower court found that a delay of over two years was temporary, but the court emphasized that the Amendment recognizes the right of the people to elect the Senator, and the court specifically said it would not be able to sustain a statute like the one here by which the governor was authorized to appoint a substitute Senator for the full balance of the term.

Of course, what we have here before the Court is a statute similar to the one adopted in a minority of states that permits appointment to fill the balance of a legislative term.

We think that that approach is fundamentally at odds with the right of representative government, which is recognized in Article I, is specifically enforced in Article IV, the republican form of government clause, and if further support would be needed, several other courts have suggested that the right to vote at least for state legislative office, and that is all this case involves, can also be inferred from the provisions of the First Amendment, from the due process clause of the--

Unidentified Justice: Haven't we held that Article IV is a political question?

Mr. Lacovara: --Going back 150 years, in Luther against Borden, the Court suggested that in some circumstances a guarantee clause claim might be non-justiciable, but as Justice Brennan's opinion for the Court in Baker against Carr explained in considerable detail, the fact that certain claims under the republican form of government clause might not be Justiciable does not mean that any claim under that clause is non-justiciable, particularly when the fundamental core of the republican form of government is at issue, and I submit that is what we have here, or when other provisions of the Constitution give explicit guidance to the Court on the content of the republican form of government, and here, both the text of the Constitution and the history before, during, and after the debates on the ratification of the Constitution leave, I submit, no room to doubt that the bedrock organization established by the Constitution of the United States is a union of states governed by elected legislatures.

Unidentified Justice: Must you win on this basic proposition to prevail in this case?

Mr. Lacovara: No.

As I was suggesting a moment ago to Justice Rehnquist, since Puerto Rico has in fact extended the right to vote for its legislature, we suggest that that was not a free choice, but a matter of Constitutional obligation, one that Congress, of course, specifically enforced in the compact.

One could approach this case as a simple equal protection clause case.

Unidentified Justice: Well, must you win on this narrow proposition to prevail?

Mr. Lacovara: One can go back still another step, Justice White.

The system that Puerto Rico has actually chosen for filling vacancies is one in which the political party makes the direct selection.

That system, we believe, is invalid on First Amendment freedom of association grounds.

Unidentified Justice: Well, if it were, wouldn't ordinarily we take the narrowest possible resolution, and not reach some of these broader questions you are arguing?

Mr. Lacovara: You could certainly do that in the exercise--

Unidentified Justice: Wouldn't it be more proper for us to do that?

Mr. Lacovara: --Normally you would, Justice White.

We thought it appropriate to sketch the full context of this case in order to place it in historical perspective.

The party appointment system we think is facially invalid under the First Amendment as well as the Fifth and Fourteenth Amendments, but that conclusion, I believe, becomes all the more compelling when the Court appreciates that what we are talking about here is not just a discriminatory system in handling some political venture or some governmental function.

We are talking about a discriminatory system that goes to the heart of representative government under the Constitution.

The survey that I tried to outline in our brief to explain why the Constitution requires an elected legislature I think implies that when vacancies occur in the legislatures exercising general statewide lawmaking power, the people have a continuing right to have their voice heard in selecting the legislators who will make the policies that will govern their lives.

That seems to me to be implicit in the text of the Constitution, but this is another of those examples in which a page of history may be worth more than a volume of logic.

As we have outlined in our brief, at the time the Constitution was adopted, it had been for centuries the British tradition to replace vacancies in the House of Commons through a bi-election.

It beggars the imagination, I suggest, to conclude that the colonists who fought and made a revolution were intending to establish a form of government where the people would have fever electoral rights than did their cousins in England.

At the time the Constitution was adopted, every one of the states that provided for filling vacancies in their state legislatures, even at a time when elections were held annually, provided for filling those vacancies through a bi-election.

Unidentified Justice: With respect to the United States Senate vacancies that occur during the term, what provision of the Constitution governs the method by which the successor is to be selected?

Mr. Lacovara: The Seventeenth Amendment is explicit on that, Mr. Chief Justice.

Unidentified Justice: Now, is it possible that one of the considerations also is that to hold a bi-election for a Senator on the part of the state... I am talking now about the considerations that went into that provision, that it would cost a great deal more money to hold a statewide election, bi-election, than a district election?

Is that a factor that perhaps entered into it?

Mr. Lacovara: I think it was.

The court that upheld the 29-month vacancy in the New York... the appointment of a Senator from New York noted that one of the reasons for giving the governor power to make a temporary appointment pending the holding of an election was that holding statewide elections for the United States Senate would be costly, but what I want to emphasize is that the Seventeenth Amendment is of a piece with Article I in providing that there must be a bi-election for members of the United States Senate, just as for members of the House of Representatives.

All the Seventeenth Amendment does is authorize the governor to make a temporary appointment until the machinery for setting up a bi-election can be put into place, and that same court was quite explicit in saying that the court would not sustain under the Seventeenth Amendment a statute that authorized the governor to appoint a substitute Senator for the full balance of the term.

So, the tradition that both Article I and the Seventeenth Amendment codified is the tradition, what I would consider a basic constitutional presumption of our form of government, that the people have the right to select their legislative representatives even though there might be some cost or burden involved.

Of course, as I will explain in a few moments, the cost, the burden, the inconvenience that can be talked about in this case are minuscule in comparison with the burden that the Seventeenth Amendment expressly requires the states to shoulder in electing substitute Senators.

We are talking here only about a single district vacancy, a vacancy that arises, as this record shows, quite infrequently.

The implication in the Constitution that the people have the right to select their legislators is, I think, fundamental.

That carries us through, I submit, the right of the people to select their legislators even when a vacancy occurs.

This is a continuing rights, something that is not lost simply because of the happenstance occurrence of death or resignation.

Legislators are, after all, elected by the people to be their spokesmen, their representatives in making government policy.

For these reasons, we submit that any system that at least in the absence of compelling justification authorizes the appointment of a substitute legislator fails to comply with various provisions, explicit and implicit, of the United States Constitution.

Unidentified Justice: Do you think that prior to the enactment of the Seventeenth Amendment, a state could have provided in a bicameral legislature for an upper house whose members were each appointed, say, by the supervisors of one county of the state?

Mr. Lacovara: Well, the Seventeenth Amendment would not affect the provisions of state legislatures.

Unidentified Justice: No.

Mr. Lacovara: That applies only, of course, to the federal legislature.

The powers of the state to provide for an appointed state senate today or originally, I think, are outside the contours of this case.

Unidentified Justice: Do you have any answer to the question?

Mr. Lacovara: I think historically, Justice Rehnquist, the states did provide for appointed upper houses.

They were more in the nature of executive councils, rather than popular chambers, and since in Minor against Happersett this Court said that the situation as of the time of the adoption of the Constitution gives us the best glimpse of what the Framers meant when they spoke about a republican form of government, my answer would be, apart from later Constitutional Amendments, a state at that time could have provided for an appointed upper house, but had to provide, as it still must provide, for an elected, a popularly elected lower house.

That was the common pattern of all of the states at the time the Constitution was ratified.

If you will, that was a parallel reflecting the dichotomy between the House of Lords and the House of Commons.

But what we have here today is a state lower legislative house that is made by statute and Constitutional provision a popularly elected chamber.

We believe that is a Constitutional imperative that Puerto Rico has recognized, and that vacancies in it must be filled by the same electoral process.

Justice White a few moments ago asked about alternate grounds for the relief being sought in this case.

The First Amendment is a clear one.

Puerto Rico, like a small minority of states, has adopted a theory of party ownership which was expressly upheld against federal constitutional challenge by the Supreme Court of Puerto Rico.

Under this notion, the seat in the legislature belongs not to the people indeed perhaps not even to the candidate whom the people elected, but to the party on whose ticket the candidate won.

That concept seems facially inconsistent with our notions of representative government, both as a matter of practice as well as a matter of Constitutional theory.

Legislators are elected by the people, not by parties.

They represent people, the voters of their districts, not parties.

A system of this sort is--

Unidentified Justice: Counsel, I am not sure I understood your suggestion that the seat would not even be owned by the candidate.

Mr. Lacovara: --The logic--

Unidentified Justice: While he is occupying it, he surely is the only one who has title to it, isn't he?

Mr. Lacovara: --Well, that is a difficulty that I have had with the justifications for the party ownership system, Justice Stevens.

The Supreme Court of Puerto Rico said that there are several... it termed them compelling justifications for this party ownership system.

One was that the party be able to preserve its electoral balance.

Unidentified Justice: But does the "party ownership" rationale apply to anything except filling the vacancy?

Mr. Lacovara: The rationale does.

It has not been applied in its most extreme form.

Indeed, this is one of the points that I wanted to make.

If this rationale justified the party's ownership of the seat when a vacancy arises, because it is necessary for the party to retain a particular level of balance in the legislature, or to carry out its electoral mandate, the party ownership rationale would similarly be offended if a legislator decided he wanted to break ranks with his party and vote against its platform, or decided, as one of the appendices to our brief shows, if the legislator actually decided to change parties after election, these perfectly--

Unidentified Justice: Well, it seems to me one could say in a state where a governor can fill a vacancy, one could says, well, the governor owns the seat in the same sense, but that would not mean that the legislator while he is in office is owned by the governor, would it?

Mr. Lacovara: --Well, I think I wouldn't frame the alternative to party appointment as governor ownership either.

Unidentified Justice: Well, isn't that just a question of language, whether you call it party ownership where a party has the right to fill the vacancy?

It is just... may be unfortunate language, but does it really mean anything?

Mr. Lacovara: The premises that were given, Justice Stevens, for party ownership I think suggest that the Supreme Court of Puerto Rico takes this principle seriously.

This is not just a label attached.

The reasons for giving the party rather than some elected official the power to fill the vacancy or that the party has a right to a certain quantum of political support in the legislature, regardless of whether the people or anyone else would choose someone of the same party to fill that vacancy, so there is not a necessary overlap between the label and the consequences, but the rationale that was given by the Supreme Court of Puerto Rico seems to me to carry us to that point.

Unidentified Justice: You seem to be arguing that there is something inherently un-American, undemocratic about this idea.

Is that not balanced by what the Constitutional, the Seventeenth Amendment expressly authorized with reference to United States Senators?

There is nothing un-American about that, is there?

Mr. Lacovara: Well, on the contrary, Mr. Chief Justice, I think the Seventeenth Amendment supports our position for two reasons.

One, it recognizes the basic proposition that we are arguing, that is, that there must be an election to fill a vacancy even in the Senate.

There can be a temporary appointment, but ultimately there has to be a bi-election.

The Puerto Rico statute makes no such provision.

The appointment here is for the full balance.

Unidentified Justice: Does the Seventeenth Amendment apply to any person other than a Senator or any office other than the U.S. Senate?

Mr. Lacovara: Absolutely not.

Unidentified Justice: Well, what does it have to do with this case?

You keep bringing it up.

Mr. Lacovara: Well, I am trying to respond, Justice Marshal, to some questions about the Seventeenth Amendment.

To the extent that one of the assumptions of the Seventeenth Amendment is applicable here at all is the assumption that there has to be a bi-election, but by its terms it applies only to selecting replacement members of the United States Senate.

That is not one of the principal Constitutional provisions on which we rely.

Unidentified Justice: But if your basic theory was correct, we probably didn't even need the Seventeenth Amendment.

Mr. Lacovara: No... well, the Seventeenth Amendment was necessary, Justice Stevens, because Article I.

Section 3, of the Constitution provides for... provided for direct legislative appointments of Senators.

The state legislatures appointed Senators.

There was no popular involvement at all.

Unidentified Justice: Right.

Perhaps I should say, we didn't need the... well, I understand your point.

Yes.

Well, there were direct elections of Senators long before the Seventeenth Amendment.

It was up to the states, wasn't it?

Mr. Lacovara: Some states... some states had provided that they would abide by the judgment of the electorate, but the Constitutional power to appoint, up until the Seventeenth Amendment, remained vested in the legislatures, and the official act that brought a Senator to Washington was not the choice of the people, but the action of the legislature.

Unidentified Justice: But if they had passed a statute saying that we are going to abide by the result of an election, presumably the consequences were the same as if they simply provided for an election in the first place.

Mr. Lacovara: Yes, many of them did, and the purpose of the Seventeenth Amendment was to make sure that all the states recognized the importance of popular sovereignty.

Again, that legislative history is traced briefly in our opening brief, and its relevance, Justice Marshal, is simply that it reflects the latest in what we think is correctly unbroken recognition that at the federal level as well as at the state level legislatures must be popularly elected.

That is their basic function, to serve as the representative branch of government.

Unidentified Justice: That is the way you read it.

The way I read it is that they decided that as for the Senate, this is the way it is to be done, in the Senate.

That is the way I read the Seventeenth Amendment.

Mr. Lacovara: Yes.

That's correct.

It parallels what Article I, Section 2, provides for the House of Representatives.

Unidentified Justice: It didn't say so.

Mr. Lacovara: Well, the Seventeenth Amendment has its own text, but the procedure for popular election is essentially the same as for selection of replacement members of the House of Representatives.

Article I, Section 2, provides that in the event of a vacancy in the House, the executive, the governor, must issue writs of election, regardless of how short a time remains.

The First Amendment points are outlined in our brief.

The basic question that I think this case comes down to is whether there are any compelling justifications for the party appointment system that Puerto Rico and a few other states have adopted.

The PDP suggests in its brief before this Court that this system is necessary to preserve Puerto Rico's system for minority representation.

I submit that the Court should brush aside that argument summarily.

It was not argued below, for the simple reason that as the text of the Puerto Rico constitution and its supporting legislative history makes clear, Puerto Rico's protection of minority representation comes about through its rather complex provisions for at-large seats.

The seat here in question is a district seat that belongs to the candidate who is elected by the majority of the members of that district, the majority of the voters.

The Supreme Court of Puerto Rico did not say a word in justifying the party appointment system about any connection between it and minority representation, so I suggest that that issue is not one that the Court need look to in examining the justifications for this statute.

The basic justifications offered by the court below were that party ownership avoids the necessity for quadrennial elections by allowing appointment to fill vacancies.

That argument, I suggest, is equally inconsistent with the notion that a seat belongs to the members of the public, to the voters.

This hostility toward electoral campaigning is out of phase with this Court's own decisions on the First Amendment.

If the people of a district feel strongly enough about the political issues that are before their legislature, to want to campaign, to want to discuss intensely, far from providing a justification for suppressing an electoral opportunity, that seems to me to provide a very dramatic reason for giving the people an opportunity to express their preference through the ballot box.

If the concern here is about cost, the Chief Justice's opinion for the Court in Bullock against Carter seems to be a full answer.

There, the Court struck down a system in which candidates in primary elections were required to finance those primaries in order to save the state money.

The opinion for the Court pointed out quite soundly, in all the programs in which governments spend money, any sensible ordering of Constitutional priorities has to put the funding of the electoral process at the very top of the list of priorities.

That rationale applies here.

Moreover, what we are concerned with here is an episodic, an infrequent event.

In the last 30 years since 1952, the record shows that there have been only eight opportunities for vacancies to be filled in district seats in the Puerto Rico House and Senate, approximately one every four years, and these are seats in narrowly defined territories with only a few thousand voters, perhaps one-tenth the number of voters here in the District of Columbia, for example.

It is, I submit, inconsistent with the sound notion of Constitutional principle and representative government to dispense with the holding of a bi-election on any of the grounds asserted by the Supreme Court of Puerto Rico.

Thank you.

Chief Justice Burger: Mr. Fortas.

ORAL ARGUMENT OF ABE FORTAS, ESQ., ON BEHALF OF THE APPELLEES

Mr. Fortas: Mr. Chief Justice, and may it please the Court, I confess to a certain degree of astonishment in this case, that the proposition is urged that there is a Federal Constitutional right or a Federal Constitutional obligation imposed upon the states or upon Puerto Rico to provide for the election of state or Puerto Rican legislatures.

If there is any fundamental proposition involved in this case that has been thoroughly refuted by this Court time and time again, beginning with Minor against Happensett, it is that proposition.

On Pages 19 and 20 of our brief, we refer to some of the cases and some of the statements of this Court to the contrary.

For example, in addition to Minor against Happensett, for example, in the San Antonio Independent School District case, this Court, through Justice Powell, said that the right to vote per se is not a Constitutionally protected right.

Justice Marshal, in his dissent, stated it this way:

"The right to vote in state elections has itself never been accorded the stature of an independent Constitutional guarantee."

The law is as stated by Justice Rehnquist earlier this morning.

That is to say that the Federal Constitution does not impose upon the states, and therefore upon Puerto Rico, the requirement of providing for elected legislatures, although the Federal Constitution does, as this Court has constantly reiterated, the Federal Constitution imposes a good many obligations upon the state as to how that franchise must be administered and governed once the state has decided that the particular officials will be elected.

That is the law, and you are today invited by my able friend to reverse that provision of Constitutional law which is so deeply embedded in the decisions of this Court.

Now, there is nothing in the Federal Constitution that would support such an assertion.

The Federal Constitution is based upon the principle that the states will provide their own form of government, that the states will provide how their government shall be organized and how it shall be conducted, subject, however, subject, however, to very strict and rigorous provisions of the Federal Constitution embodied particularly and most practically in the equal protection clause, as to how the elections will be administered and how the election rights will be allocated.

That is the basic framework of our government.

It is the basic concept of our government.

There has never been, in Minor against Happensett or any other case, any challenge to that principle as the basic governing principle of our Constitution.

Now, let me say, if Your Honors please, that so far as Puerto Rico is concerned, I respectfully suggest that the observance of that principle is of even greater importance than it is in the states.

The equal protection clause, the basic fundamental guarantees of the Constitution apply to the people of Puerto Rico as they do to the people of the states.

Puerto Rico, as this Court has had occasion to remark in different contexts, however, does have a special and unique status in the American system.

Puerto Rico is an unincorporated territory, that is to say, and has always been, that is to say, there is no decision by the Congress or the people of Puerto Rico as to whether it will ever be assimilated into the state framework of the United States.

There are those who contend it should be independent, and there are those, as represented by the Popular Democratic Party, who have long advocated that Puerto Rico should be what its Spanish name in Spanish indicates, the free and associated state of Puerto Rico, the relations of which to the United States are governed by a compact entered into between the Congress and the people of Puerto Rico.

We have respectfully suggested to the Court that in considering the present problem, it is appropriate, it is necessary, it would be most constructive for the future constitutional development of Puerto Rico and for the international problems that have clustered around the unique status of Puerto Rico and which are a source of constant debate in the United Nations, in which some nations have attacked the bona fides of the United States' position in Puerto Rico and the United States' assertion that Puerto Rico has autonomy, that Puerto Rico has the right to provide for its own government, and that the people of Puerto Rico have chosen, freely chosen to associate with the United States, so we have suggested to the Court that it would be highly advantageous and highly desirable, highly appropriate to recognize that Puerto Rico has not only the autonomy to provide how its representatives will be elected, subject to the basic Constitutional guarantees, not only to provide that it has... not only does it have the same jurisdiction and power and authority as the states, but that in considering problems as to the Constitutionality or the propriety of what Puerto Rico does in providing its local government, that there should be a deference given, deference paid to its unique status, to its cultural background, to its history, to its differences.

Now, let me briefly address myself to that in the context of the problem before Your Honors.

This system of filling vacancies in Puerto Rico goes back to 1906.

That is to say, the system that when a vacancy occurs in various offices, it will be filled by appointment, by appointment in effect by the political party, goes back to 1906, when Puerto Rico was a colony.

There is no point in mincing words about it.

It was a colony.

It had... under the Folacher Act, which was adopted in 1900, two years after the United States obtained Puerto Rico from Spain.

In 1906, Puerto Rico provided that in the event of a vacancy in the office of a mayor or a municipal council, that vacancy would be filled until the next general election by appointment or on designation by the political parties.

Now, at that time Puerto Rico did not elect its legislature.

The legislative authority was exercised by the United States and by designees of the United States.

But it did have authority over... The appointment of mayors and municipal councils was governed by Puerto Rican law, and it was so provided.

And that party designation, Your Honors, is deeply embedded in Puerto Rican history, much more so than we are accustomed to in the states.

Even when Puerto Rico was a colony of Spain, and before the Autonomy Act enacted by Spain, which was in 1897 or eight, even when Puerto Rico was a colony of Spain, party organization existed in Puerto Rico and it was very powerful indeed, and it is interesting to note that the party organization then was focused on the same issues that dominate party organization today, namely, whether Puerto Rico should be assimilated to Spain, which is the counterpart of the Statehood Party now, and the MPP with which the Appellants here are affiliated, whether Puerto Rico should be autonomous within the Spanish framework of government, which is now sort of the general counterpart of the position taken by the Popular Democratic Party, the Appellees whom I represent, or third, whether there should be separatism, independence from Spain, those divisions have continued through all these years, and through the permutations and combinations, and they are reflected by the various political parties in Puerto Rico.

And from Spanish times to the present, the party organization has been a part, an essential part of Puerto Rican life.

For example, I am advised that there has never been elected to the Puerto Rican legislature an independent, a candidate who ran as an independent, although the Puerto Rican law contains very liberal and generous provisions permitting that.

I am also advised that on all issues of controversy in the Puerto Rican legislature, party loyalty, party discipline is a fact of life.

The allegiance to these three competing ideas of status is a dominant factor in Puerto Rican life.

Unidentified Justice: Counsel, your history makes me wonder, what if there were an independent elected and a vacancy occurred?

Mr. Fortas: The law provides specifically for that.

Then you have to have a general... a special election.

Unidentified Justice: Then you must have a general election.

Mr. Fortas: There is no alternative to it.

But the point here is that in 1906, this same provision for special election of mayors and municipal councils was in the law.

It has persisted in the law today.

In 1917, Congress adopted the first Organic Act for Puerto Rico.

Puerto Rico was then a colony.

The Jones Act.

The Jones Act provided for special elections to fill vacancies in the legislature.

Puerto Rico was given the right to elect a legislature then.

In 1938, that provision in the Jones Act was changed by the Congress, and it is very interesting to note, as we have set forth in our brief, it was changed on recommendation of the non-voting delegate in the Congress, which is all that Puerto Rico now has.

He said that between 1917 and 1938, there have been vacancies in the Puerto Rican legislature, but those vacancies have not been filled, because special election was required.

And he therefore recommended that the vacancies be filled, that Congress provide that vacancies in the Puerto Rican legislature be filled by appointment on recommendation of the political party to which the previous incumbent had belonged, and it was so done.

Congress changed the Organic Act of Puerto Rico to provide... to make that provision which in essence and in principle is the same provision that we are talking about here today.

Now, the next event in this history is 1952.

In 1952, the people of Puerto Rico adopted their own constitution.

That was pursuant to a compact in Public Law 600 that was entered into between the Congress and the people of Puerto Rico.

As the Court knows, Puerto Rico was still subject to the territorial clause of the Constitution of the United States.

Congress had in theory complete power to dispose of Puerto Rico, make rules for it, and in Public Law 600 there was this compact entered into, which was a historic document that had great influence throughout the world.

It provided a model on which some other nations revised their arrangements with their erstwhile territories.

And it is that constitution that various members of this Court have had occasion to write about in opinions of this Court in different contexts.

It was that constitution that provided that Puerto Rico shall have control in effect of its own destiny, its own government, subject to two things.

One is the fundamental protections of the United States Constitution, more or less as stated in the old insular cases, and two, subject to the specific arrangements with the federal government, such as free trade and various types of specific provisions.

That was a great Act.

It was an Act that affirmed the uniqueness, as this Court has stated it, of the system of Puerto Rico, and it allowed them to organize their own government, which they did in their constitution.

Now, it is very interesting to note that in the Puerto Rican constitution as it was originally drafted, there were two types of provisions that related to legislative vacancies.

One related to the at-large posts.

The Puerto Rican legislature is and has been composed of two houses, of course.

The Senate has 27 members.

Eleven of them are at-large, and 16 are selected in Senatorial districts.

The House of Representatives is composed of 51 members.

Forty are from the districts; eleven are at-large.

Now, with respect to vacancies, the constitution in 1952 provided that vacancies in the at-large seats would be filled in the historic manner, namely on recommendation of the political party to which the incumbent... with which the incumbent had been affiliated.

With respect to district Representatives and Senators, the constitution originally provided for an election of a successor.

Now, that represented... if Your Honors please, I hope I am not speaking out of turn here... it represented the profound view that most everybody has, most everybody steeped in the American tradition has of the remarkable men who were responsible for the drafting of that Constitution.

Everybody, I suppose, instinctively would prefer to have elections than appointments.

And that reflected their view.

But it didn't last.

It didn't work in Puerto Rico, and the result was that just as it didn't work under the Jones Act, the first Organic Act, and had to be changed in 1938 by the Congress, so this didn't work either for Puerto Rico, and in 1964, the people of Puerto Rico adopted an amendment to their constitution which provided that the selection... that the filling of vacancies for district representatives, which is the specific thing involved here, would be governed by laws enacted by the Puerto Rican legislature.

Unidentified Justice: What didn't work, counsel?

Mr. Fortas: The special election.

Unidentified Justice: Well, I know, but why didn't it work?

What was their judgment?

What was wrong with it?

Mr. Fortas: It didn't work because of the mechanism of the election, because of the particular quality of the controversies that occur in Puerto Rico, and I will have to take a minute to describe that, if I may, Justice White.

In Puerto Rico, from the beginning of elections, elections are held once every four years.

Once every four years there is an election for all offices, local and legislative, mayors, councils, and the legislature.

Until the last... until 1977, I think it was, the way they ran the election was this.

All Puerto Rican voters assembled in a particular place, at particular polling places, at on before the appointed hour.

The doors were then closed.

Nobody could enter the polling places after the appointed hour.

Nobody could leave until all the voting was over.

It was a wonderful system to prevent repetition.

Then it turned out it was a great fiesta.

At the same time, at the same time, in the Puerto Rican elections, this question of status, this question of status is a highly emotional, disruptive thing.

I don't have to tell the Court about what happens, what has been happening and has happened with respect to the nationalist movement in Puerto Rico, which is the advocates of independence through violence, and passions about this question of status there are unimaginable to anyone who hasn't been down there and seen it, and those appeared in the election.

The next thing is, Puerto Rico is a poor place.

There is no question about it.

It is not just whether the government can afford this.

It is a question of campaigning.

They have television down there, too, and it costs money.

Puerto Rico is a poor place.

Puerto Rico is a place that has its very special kind of folk ways, and the special election system just didn't work, and as you read the Puerto Rican election laws now, there is practically nothing that relates to a special election.

It just does not fit.

And the question here, if Your Honors please, the basic question here is whether this Court will say to the people of Puerto Rico that because of something that I can't find in the Constitution of the United States, you must do it our way.

Unidentified Justice: Counsel, how did the failure of this elective system to work from 1952 to 1964 manifest itself?

Mr. Fortas: It manifested itself in the fact that there were some positions that were just allowed to remain vacant, and were not filled, particularly the district representatives.

Well, the at-large people... I should have made clear, if I didn't, that the provision for filling at-large vacancies remained the same throughout.

That is to say, in the 1952 constitution the at-large seats, when they became vacant, were filled by appointment on the designation of the political party, just as they are today.

And the failure to work was manifested, as I said, by the fact that some vacancies were not filled, and next by the fact that when special elections were held, they were not satisfactory.

They were not orderly.

You had the passions of the election that occurred on more than a four-year basis.

Now, we may like that or not like it, but it is nevertheless true that the people of Puerto Rico would prefer to have the passions every four years instead of once in a while, instead of occasionally.

Unidentified Justice: Was there any element in the unworkability in this sense that if there is going to be an election, an open election, it may be that the other party would win the election, and the balance in the existing legislature would be upset--

Mr. Fortas: No, the--

Unidentified Justice: --or did they just prefer to have, every four years, they wanted to... once you had an election, you were going to maintain that particular balance or proportion for the full four years?

Mr. Fortas: --I think there was more of the latter, but you have here a situation where people are accustomed to an election fiesta every four years, and I may say, Justice White, that there are... that the results in Puerto Rico are fantastic.

There is about 90 percent registration of eligible voters; about 80 percent of the eligible voters vote, more than 80 percent of them.

It is a record that is unequalled anywhere else.

And it's a record that they prefer, and I see nothing in the Federal Constitution that impacts upon this.

May I hurriedly get to this question of appointment or designation by political parties?

There are in the... in the states there are 22 states... 21 states of the union plus the District of Columbia that fill vacancies in legislative office by appointment in their legislatures, 21, almost half of the states, and of those, 16... 16 of the states fill those vacancies by appointment upon designation by a political party or they have to be filled by a member of the same political party, 16 of them.

This is not a peculiar Puerto Rican situation.

It is prevalent throughout the states.

My friend would ask this Court to outlaw, to require special elections, to outlaw election in the event of any vacancy.

I don't know how that can be confined to district representatives in Puerto Rico, and not to at-large representatives.

I don't know how on a principle basis that principle can be applied to avoid its application to appointment of someone to fill a vacancy pending a special election.

I don't know how you can devise any principle that, as my friend asked you to, that would permit appointment to fill a short-term vacancy before the special election.

Puerto Rico, if the vacancy occurs within 15 months prior to a special election, it has always been provided that the vacancy is filled by appointments, and frankly, I don't know, as we have elaborated in our brief, how you can confine the principle for which my friend contests to legislative offices.

As this Court has said, an elected office, when the state decides that an office is to be elected, then federal consequences apply, whether it is a legislative office or any other office that has general governmental powers.

I exclude, as this Court has done, of course, boards and what-not that have very restricted powers.

So that the principle that my friend advocates here would apply in all of these situations in a totally impractical way.

It would apply to all legislative situations, to all appointed situations.

Now, I want to hasten... my time has expired.

May I have one moment, if Your Honor please?

On this political party, the question of whether the appointments can be made by the political party, political parties, as this Court has reiterated time and time again, are part of the warp and woof and the essence of our official elective system.

Appointment by a political party is not like appointment by the Chamber of Commerce or a labor union.

It is an appointment on designation of the political... of a mechanism that is highly regulated and that is part of our system.

As to the reasons for Puerto Rico's adoption... justifying Puerto Rico's adoption in this system, I regret I can only refer Your Honors to our brief, but the preservation, the preservation of the independent party system to which this is essential, the appointment system is essential, the assurance of representation of independent parties in Puerto Rico is fundamental not only to Puerto Rico but to this very special situation that has resulted because of the independence movement in Puerto Rico.

I regret that I must respectfully refer you to the brief for that.

Thank you very much.

It has been a great pleasure and an honor to be here.

Chief Justice Burger: Mr. Lacovara, do you have anything further?

ORAL ARGUMENT OF PHILIP A. LACOVARA, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Lacovara: I have just a few brief comments by way of reply to my learned colleagues's arguments.

First, with respect to the argument that Puerto Rico's political status, its affiliation with the United States, means that the Constitutional principles that apply to the states do not apply to Puerto Rico to the same extent is a proposition that this Court has rejected three times in the last six terms by overwhelming majorities of the Court.

The cases are cited in our brief.

Whatever the Court decides today necessarily affects not only Puerto Rico but those states that have systems comparable to Puerto Rico's.

Secondly, with respect to the history, Puerto Rico has provided for an elected legislature since the Organic, the Jeforacher Act of 1900, and since 1902 there was provision for holding popular bi-elections to fill vacancies in the legislature.

The system of party appointment in other offices other than the House of Delegates of Puerto Rico was not adopted until 1938.

So, for almost all of the period from the acquisition of Puerto Rico from Spain up until the present, Congress and the legislature of Puerto Rico recognize the importance of popular bi-elections.

Finally, with respect to party appointment, I agree with my learned colleague that political parties are important, in Puerto Rico as elsewhere.

They have Constitutional status.

But as this Court's decisions shown, political parties have Constitutional status because they are private associations.

That is why they are protected against government interference by the First Amendment.

It stands those principles on their heads, I submit, to say that a kind of institution that has Constitutional status because of its private nature may be given the ownership of public office, the legislative office.

The judgement below should be reversed.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.