Martínez v. Insular Board of Elections

Mr. Justice HutchisoN

delivered the opinion of the Court.

Petitioners allege that they have been named by the central directing organization of the Puerto Rican Liberal Party as observer and substitute observer respectively of such party with voice and vote on the Insular Board of Elections; that the said party is a political party duly registered in the office of the Executive Secretary of Puerto Rico, with general and local tickets throughout the Island, including a candidate for Resident Commissioner in Washington, and with 42,204 voters, more than fifteen per cent of the total number of qualified voters who voted in the last general election for a resident commissioner; that the Puerto Rican Liberal Party, upon call of its governing committee, held a general assembly or convention which ratified the ticket registered by petition in the office of the Executive Secretary and adopted a party platform and regulations; that the defendant, Chas. H. Terry, General Supervisor of Elections, and the other defendants, Bolívar Pagán, representing the Socialist Party and Leopoldo Figueroa, representing. the Republican Union Party, form the Insular Board of Elections as actually constituted; and, upon information and belief, that the Socialist Party and the Republican Union have come to an agreement whereby they are in fact merged into one party with double representation on the said Insular Board of Elections.

The prayer is for an adjudication that section 1 of the Election and Registration Law, as amended in 1924 (Session Laws, p. 2), is void, unconstitutional, and without force and effect as to certain requirements of the proviso thereto attached, and for a peremptory writ of mandamus to compel the recognition of petitioners by the Insular Board of Elections as observer and substitute observer respectively with voice and vote as representatives of the Puerto Rican Liberal Party on the said board.

The section in question reads in part as follows:

“A permanent Board of Elections is hereby established, to be composed of a General Supervisor of Elections, as chairman who shall be *398■appointed by the Governor with the advice and consent of the Senate of Porto Rico, and two persons representing the two principal-political parties of the Island as hereinafter defined, and a substitute for ■each such member, who shall be appointed by the Governor on recommendation of the central directing organizations of the said parties; Provided, however, That the central directing organization of any political party whose candidate for Commissioner to the United States received twenty per cent or more of the total vote cast for candidates for that office at the preceding election shall have the right to appoint a representative and one substitute to be designated as ‘observer,’ who shall enjoy all the rights and privileges of members •of the said board and shall have voice but no vote in its deliberations and decisions.”

The case of Martínez v. Saldaña, 38 P.R.R. 398, relied upon by petitioners, does not resolve the question now before us. Most of the other authorities cited by petitioners enunciate general principles of Constitutional Law and of statutory construction. None of them points definitely to the conclusion that a statute which creates an election board and confers bipartisan representation upon the two principal political parties is unconstitutional as an unreasonable restriction of the right of suffrage or otherwise, because it does not extend the privilege of representation to all political parties. The language of the proviso is perfectly plain. It leaves no room for doubt, nor for construction. The right to appoint an observer is conferred upon “the central directing organization of any political party whose candidate for Commissioner to the United States received twenty per cent or more of the total vote cast for candidates for that office at the preceding election,” not upon the central directing organization of any political party organized by petition and convention with or without any given number of qualified voters who voted at the preceding election. The statement that such observer “shall have voice but no vote” in the deliberations and decisions of the board is equally unequivocal.

The statute is presumed to be constitutional. If unconstitutional, the burden is upon petitioners to establish that fact. The petition and authorities cited in support thereof *399■do not show that the proviso in question or the section as a whole amounts to a regulation of the exercise of the elective franchise, nor that such a regulation would he unconstitutional as an undue interference with the right of suffrage. Viewed from any other standpoint the enactment may or may not be unreasonable, absurd, arbitrary or unjust. It is not within the province or the power of this Court to modify or amend the law by judicial legislation in the guise of statutory construction. See 25 E.C.L. pp. 1018, 1019, 1022, 1024 and 1027 cited by petitioners. See also 9. E.C.L. 1013, 1014, section 33; 20 C.J. 92, section 73; Id. 91, section 70.

No member of this Court doubts the desirability of placing a representative of the Puerto Eican Liberal Party on the Board of Elections as an observer. This can not be done under the law as it stands. The question of amendment, ■either as a matter of fair play or as an additional guarantee ■of an honest and impartial election, is, to repeat, a question for the Legislature.

Full proof of the averment as to the existence of an understanding between the two principal parties which amounts to a merger would perhaps present a more serious question. Obviously the Legislature in the law as it stands failed to foresee, or to make any provision for such a possibility. We do not now see just how this Court could supply the omission. Nevertheless, if petitioners are prepared to prove the alleged pact, they will, upon request, be given an opportunity to do so and to show, if they can, that they are entitled to the writ on this ground. If no motion is made within three days, the petition will be denied.