Valenti v. Rockefeller
| Decision Date | 20 January 1969 |
| Docket Number | W.D.N.Y. No. 68 Civ. 2942,Civ. A. No. 1968-224,68 Civ. 2988 |
| Citation | 292 F. Supp. 851 |
| Parties | Joseph A. VALENTI, Pittsford, New York, for himself and for all persons similarly situated, Plaintiff, v. Nelson A. ROCKEFELLER, Governor of the State of New York, Albany, New York; and John P. Lomenzo, Secretary of State of the State of New York, Albany, New York, Defendants. Randolph PHILLIPS, Nina Phillips, Samuel J. Phillips, Patricia N. Berman and Elizabeth Bobrick, in their own right individually and as members of The Committee for Fair Play for Voters, Plaintiffs, v. Nelson A. ROCKEFELLER, Governor of the State of New York; and John P. Lomenzo, Secretary of State of the State of New York, Defendants. George BACKER, Individually and on behalf of the Citizens, Residents and Voters of the State of New York, Plaintiffs, v. Nelson A. ROCKEFELLER, Governor of the State of New York, Defendant. |
| Court | U.S. District Court — District of Guam |
Robert L. Bobrick, New York City, for plaintiffs, Randolph Phillips, and others.
Jerome M. Kay, New York City, for plaintiff, George Backer.
John Manning Regan, Hogan & Regan, Rochester, N. Y., for plaintiff, Joseph A. Valenti.
Ruth Kessler Toch, Sol. Gen., and Jean M. Coon, Asst. Atty. Gen., of counsel, Louis J. Lefkowitz, Atty. Gen., of the State of New York, for defendants.
Before LUMBARD, Chief Circuit Judge, HENDERSON, Chief District Judge and FRANKEL, District Judge.
Judgment Affirmed January 20, 1969. See 89 S.Ct. 689, 693.
Three suits for an injunction and a declaration that the Seventeenth Amendment to the United States Constitution requires that the vacancy in the United States Senate created on June 6, 1968, by the death of Senator Robert F. Kennedy, be filled by election in November, 1968, rather than in November, 1970, as required by New York Election Law, McKinney's Consol. Laws, c. 17, § 296. A three-judge court was convened to hear all three actions pursuant to 28 U.S.C. §§ 2281, 2284. The court, FRANKEL, District Judge, dissenting, held that the provisions of Election Law § 296 did not exceed the permissible limits of discretion conferred upon the states by the Seventeenth Amendment concerning the time and conduct of Senate vacancy elections.
The complaints are dismissed.
These three suits brought by New York voters1 against the Governor and the Secretary of State sought a determination that the Seventeenth Amendment to the United States Constitution requires that the Senate vacancy created by the death of Senator Robert F. Kennedy on June 6, 1968, be filled at the November, 1968 general election. Since this vacancy arose less than 60 days prior to New York's regular spring primary in an even-numbered year, under New York Election Law § 296 the vacancy will be filled at the general election in the next even-numbered year, in this instance November, 1970. The Governor is empowered to make a temporary appointment, with the appointee serving until December 1, 1970.2
Plaintiffs contend that § 296, by authorizing a delay of approximately 29 months before an election is held to fill this Senate vacancy, infringes upon the principle of popular election of Senators declared by the Seventeenth Amendment, and violates the vacancy provision of that Amendment:
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.
Plaintiffs read this provision as permitting a "temporary" appointee to serve only until the vacancy can be filled by the people at the next "regularly scheduled election if there is sufficient time between the happening of the vacancy and the scheduled election."3 In the circumstances of this case they argue that the election must be held in November, 1968, even though the candidates for the vacancy could not have been selected this year through the state's normal procedure4 of nominations by the party committee in March or April followed by a popular primary in June preceding the election.
We hold that the provisions of New York Election Law § 296 do not exceed the discretion conferred on the states by the Seventeenth Amendment with respect to the timing of vacancy elections and the procedures to be used in selecting candidates for such elections. Substantial state interests are furthered by the decisions of the New York Legislature that Senate vacancy elections be held only in conjunction with regular congressional elections, and that candidates for vacancy elections be selected through the state's modified direct primary system.
Our decision is strongly influenced by the fact that from the ratification of the Seventeenth Amendment in 1913 down to the present day most state legislatures have interpreted its provisions as authorizing the enactment of vacancy election statutes very similar to the New York law attached here. Accordingly we find that an election in November, 1970 to fill this Senate vacancy will be in compliance with the Amendment.
These actions were commenced almost simultaneously, the Valenti suit in the Western District of New York on July 16, and the Phillips and Backer suits in the Southern District of New York on July 17 and 19 respectively. On July 29, 1968, Chief Judge Henderson certified the need in the Valenti case for the appointment of a three-judge court, 28 U.S.C. §§ 2281, 2284, and Judge Frankel did likewise with regard to the other two suits on July 30. To facilitate prompt disposition of the common question, identical three-judge courts were designated in each case; Judge Henderson was assigned to sit as the third judge in the Southern District cases and Judge Frankel was assigned to sit as the third judge in the Western District case. By agreement of all the parties argument of all three cases was heard on August 7th in the Southern District.
A brief review of the New York legislation dealing with Senatorial vacancy elections is in order before we examine the current § 296 in the light of the Seventeenth Amendment. Under the state's first statute the vacancy election was to be held at the next annual November general election which occurred at least 30 days after the vacancy arose. Laws 1913, ch. 822. In 1947 the law was amended to require that the election be held at the annual November election in the first year in which at least 60 days intervened between the creation of the vacancy and the September fall primary. Laws 1947, ch. 623. If either of these two laws were in effect today the vacancy caused by the death of Senator Kennedy would have been filled at the November, 1968 election.
However, under the terms of Laws 1951, ch. 257, a Senatorial vacancy election must be held in an even-numbered year. Furthermore, New York now conducts its primary election in June rather than in September. Laws 1965, ch. 1070, applying by its terms to Election Law § 296.5 The candidates for a Senate vacancy must be selected at this primary, unless the nominees chosen by the party committees prior to the primary are not challenged. Election Law § 131, subd. 2(d) (McKinney Supp.1968). Therefore, under current New York law the vacancy involved in this case cannot be filled either at the 1968 election, since it occurred less than 60 days prior to the spring primary on June 18, or at the election to be held in the odd-numbered year of 1969. The interval of 29 months which will occur in this instance between the vacancy and the election to fill it in November, 1970, is only six weeks shorter than the maximum interval possible under the terms of § 296.
Plaintiffs' main argument has been that the Seventeenth Amendment requires the vacancy election to be held in November, 1968.6 In effect, they ask us to hold that the importance under the Amendment of holding a prompt election outweighs the state's interest in following its normal procedure for the selection of candidates through a spring primary. New York Election Law § 131, as amended Laws 1967, ch. 716, § 2. Had we required that the election be held in 1968, presumably the nominees would have had to have been selected by the state committee of each party pursuant to Election Law § 131(7), without the possibility of these selections being challenged at a direct primary.
Since we reject the suggestion that an election in 1968 is constitutionally required, we must also answer another question: Does the Seventeenth Amendment prohibit New York from bypassing its general election in 1969 in favor of filling the vacancy in November, 1970?
In order to assess the constitutionality of § 296 as applied in the circumstances of this case we turn first to the wording of the Seventeenth Amendment.
The Seventeenth Amendment's vacancy provision explicitly confers upon the state legislatures discretion concerning the timing of vacancy elections. If the legislature authorizes the governor to make a temporary appointment, the appointee may hold office "until the people fill the vacancy by election as the legislature may direct." (emphasis added) Despite this clear language plaintiffs contend that the proviso only allows the legislature to regulate the governor's power of temporary appointment and not the timing of vacancy elections. They base their interpretation on a rather subtle reading of the 1892 congressional resolution which first contained this vacancy provision.7 But we believe that we must give effect to the natural reading of the Seventeenth Amendment as adopted since there is no indication that the Congress which proposed the Amendment, or the state legislatures which ratified it, intended a different meaning. This natural reading grants to the states some reasonable degree of discretion concerning both the timing of vacancy...
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