Christian Action Party of Puerto Rico v. Veray Torregrosa

Mr. Justice Santana Becerra, with whom Mr. Chief Justice Negrón Fernández, Mr. Justice Hernández Matos, and Mr. Justice Blanco Lugo concur,

dissenting.

San Juan, Puerto Rico, February 19, 1964

Act No. 5 of April 2, 1934 (Sess. Laws, p. 188) defined the term “party by petition” used in § 14 of the Election Law of 1919 (No. 79, Sess. Laws, p. 530) as that political party which registered candidates by petition in three-fourths or more of the electoral precincts throughout the Island and in ten percent or more of the total votes cast for the office of Resident Commissioner of Puerto Rico in the United States in the last preceding elections.

*85This same Act defined principal parties as those three political parties which received the greatest number of votes cast in the general candidates for Resident Commissioner in the last preceding elections. The principal parties and the parties by petition, after acquiring such category, would not forfeit the same until they failed to receive the votes necessary to retain it at some general elections.

By the amendment to § 14 by Act No. 137 of May 9, 1941 (Sess. Laws, p. 876) it was provided that the principal parties would be those whose candidates for Resident Commissioner received a number of votes equivalent to ten percent or more of the total votes cast by all the parties in the general candidates at the last preceding elections. The definition of parties by petition remained the same.

That was the statutory situation when § 14 was further amended by Act No. 48 of July 31, 1947 (Sp. Sess. Laws, p. 214). The amendment did not change the definition of principal parties contained in the Act of 1941 nor that of parties by petition, but it was provided in Act No. 48, by way of addition, that to the effects and for the purpose of the election to be held in November 194-8, any party shall be considered a party by petition and shall have the same rights as any principal party which, in accordance with § 37 of the Election Law, registered candidates by petition in one-half or more of the electoral precincts throughout the Island and in five percent or more of the total votes cast in the 1944 elections for all candidates for the office of Resident Commissioner. The said five percent was to be computed by taking into consideration only the petitions of that party in those municipalities in which petitions signed by ten percent or more of the votes cast in each of those municipalities for the office of Resident Commissioner in the said elections of 1944 shall have been filed in the Office of the Executive Secretary.

If during the period between July 31, 1947, when Act No. 48 took effect, and the elections of 1948 it would have *86been asked which was the law in force for the registration of a party by petition, the answer unquestionably had to be, that it was the provision which required the registration in one-half of the precincts of five percent of the votes cast for Resident Commissioner, to be computed in the manner stated, rather than the requirement of registration in three-fourths and in ten percent, even though this part of § 14 was not repealed, and, on the contrary, had been reproduced in amendatory Act No. 48. If after the 1948 elections it would have been asked which was the law in force for those purposes, the answer unquestionably would have been that it was the requirement of three-fourths or ten percent of the votes. Indeed, after the elections the lightest requirements of Act No. 48 were functus officio.

The same situation was reproduced by Act No. 6 of September 27, 1951 (Sp. Sess. Laws, p. 106) for the forthcoming elections of 1952. Section 14 of the Election Law was amended leaving unchanged the traditional definition of principal party and of party by petition and, as it was done for the 1948 elections, it was again provided that to the effect and for the purposes of the elections to be held in 1952, any-party shall be considered as a party by petition, again as was done for 1948, which registers in one-half or more of the electoral precincts five percent of the total votes cast in the 1948 elections for the office of Governor of Puerto Rico, sucb five percent to be computed in the same manner as under Act No. 48, namely, on the basis of those municipalities in-which the party shall have filed a number of petitions equivalent to ten percent or more of the votes cast in each of such municipalities for the office of Governor in the 1948 elections.

If in the period between September 27, 1951, when Act No. 6 supra took effect, and the 1952 elections it would have been asked which was the law in force for the registration of-a party by petition, the answer unquestionably would have been' the compliance with the requirement of one-half of the *87precincts and five percent of the votes for Governor, computed in the manner stated. After the 1952 elections these lesser requirements would have lost, as in 1948, all their legal effectiveness.

But now an event took place which did not occur in the electoral period of 1948. It happened that the Constituent Convention met and drafted the Constitution of the Commonwealth before the 1952 elections and the requirement of one-half of the precincts and five percent also became functus officio as a result of these elections. Section 6 of Art. IX of the Constitution provided the following:

“Political parties shall continue to enjoy all rights recognized by the election law, provided that on the effective date of this Constitution they fulfill the minimum requirements for the registration of new parties contained in said law. Five years after this Constitution shall have taken effect the Legislative Assembly may change these requirements, but any law increasing them shall not go into effect until after the general election next following its enactment.”

The legal problem before us involves in one of its aspects the decision as to the number of petitions which the Christian Action Party shall file in order to be registered as a party by petition in the forthcoming elections of November. Section 14 of the Election Law has not been further amended as of the enactment of Act No. 6 of September 27, 1951. The problem which arises, which presents the difference of criteria between the litigants, is whether under the provisions of § 14 • — Act No. 6 of 1951 — the Christian Action Party is bound to file petitions in three-fourths of the precincts and in ten percent of the total votes cast for Governor in the immediately preceding general elections, in this case those of 1960, pursuant to the provisions of the third paragraph of § 14 supra-, or, on the contrary, whether it should file petitions in one-half of the precincts and in five percent of the votes cast for Governor in the 1948 general elections, as provided in the *88following fourth paragraph. We are dealing with a statute which contains a double set of requirements for the same purpose.

It is said that the requirements of one-half of the precincts and of five percent were transitorily adopted for the purpose of the 1952 elections. This is quite correct and those requirements would have disappeared completely from the electoral panorama after the 1952 elections were held but for the intervention of the Constituent Convention, a higher ranking instrumentality. Let us examine the effects of this intervention.

If we take upon ourselves the task of making a brief examination of the basic Election Law of 1919 throughout the subsequent amendments thereto, we shall see that all throughout the legislative history of the act there have been three sections of the statute closely relating to a common purpose: §§ 14, 36 and 37. Section 14 originally provided that principal parties were the two parties which shall have cast the highest and second highest number of votes for Commissioner to Washington at the last general elections. A political organization which shall have cast twenty percent of the votes for Commissioner to Washington would be considered an organized party until it failed to cast the said twenty percent. According to § 36, any party which shall have cast more than twenty percent for the office of Commissioner to Washington at a previous election was entitled to nominate candidates by convention for a subsequent election. Section 37 authorized the nomination of candidates by petition provided petitions were filed containing 200 signatures for municipal offices, 200 for a candidate for representative, 100 signatures in each of at least five municipalities of the senatorial district for candidate to senator, and 100 signatures in each of any 20 municipalities for Commissioner to Washington.1

*89The requirement of twenty percent for the subsistence as a party disappeared as of Act No. 3 of July 6, 1932 (Sp. Sess. Laws, p. 4), the same having been fixed at ten percent of the votes cast for Resident Commissioner. Under § 36, if such party had cast more than that ten percent, it could nominate candidates by convention as a result of its subsistence. The requirement on the specific number of signatures had already disappeared from § 37 by virtue of Act No. 2 of June 18, 1924 (Sp. Sess. Laws, p. 36), and it was provided that the petitions for candidates to be voted for in a precinct, municipality, district, or throughout the Island should be signed by petitioners equal in number to ten percent of the total votes cast for Commissioner to the United States in such precinct, municipality, district, or the Island, at the preceding elections, by at least 200 petitioners in each case. As of Act No. 5 of April 2, 1934 (Sess. Laws, p. 88) § 14 already defined the party by petition with the requirements of three-fourths of the precincts and ten percent of the votes cast for Resident Commissioner. Act No. 114 of May 15, 1936 (Sess. Laws, p. 588) deleted from § 37 the minimum of 200 signatures already mentioned. Sections 14,- 36 and 37 of the Election Law have thereafter retained those characteristics.

This examination of the Act shows two things: (1) that traditionally the lawmaker always provided separately the requirements for the subsistence as a party after participating in a general election and the requirements for registration of a party to participate in a general election; and (2) that even though they are separate, and except at the beginning when a specific number of signatures (§ 37) and the twenty percent (§§14 and 36), were fixed these requirements have been related in the sense that in order to subsist as an old party as well as to organize a new party by petition ten percent of the votes cast for Commissioner to Washington, subsequently for Governor, was necessary, in an immediately preceding election. The concepts of subsistence and organi*90zation of a party were never interchanged nor merged by the lawmaker.

That legislative tradition was broken in the Constituent Convention. It will be observed that when § 6 supra of Art. IX of the Constitution was adopted, the Constituent Convention guaranteed to the parties that they shall continue to enjoy their rights during a specific period called a “freezing” period, not in terms of subsistence of the Election Law or in other terms, but in terms of fulfillment of the minimum requirements provided by law for the registration of new parties.

■ What was the result of all this? That even if that was done in connection with the enjoyment of the rights of subsistence of the parties after an election, the requirements for registration of new parties inevitably remained unchanged also during that period. Why? Because if the registration requirements did not remain unchanged during the same period, and if the Legislative Assembly modified them during that period, those being the requirements also provided, to subsist with the rights of a party, the immobility provided by the Constitution would be dissolved indirectly by legislative action and would become academic.

To me this is a case of simple logic. If the Constitution sanctioned- certain rights provided certain statutory requirements were met and provided that those rights could not be changed during a certain period, the determination of those rights produced the immobility of the requirements for a like term, in this case requirements for the registration of a party.

It is argued, as a simple solution to the problem, that § 6 does not deal with registration of new parties and that the Convention was not concerned with this, but to see that the political parties continued to enjoy their rights. However, the argument, as a way out of the problem, is defeated by what has been said hereinabove. We cannot disregard or *91.overlook the fact that, even if it was for the purpose of sanctioning for some time the enjoyment of certain rights of political continuity, the Convention used as denominator or basis the requirement for the registration of a new party. In order to accomplish the desired purpose, the Convention established a fact. For the sake of argument, the purpose for which the fact was established is not as important as the fact itself. The fact is that the requirements for the registration of a party by petition provided by law at the time the constitutional provision took effect were immobilized for a certain time — as an inescapable result of § 6 of the Constitution. Whether the action is one claiming rights of subsistence or of political continuity, or whether it involves, as in the case at bar, a problem of registration, in either case it would always be necessary to resort for its decision to the denominator common to both: to determine the requirement for registration of parties by petition.

Now then, which of those two sets of requirements of § 14 —Act No. 6 of 1951 — for the registration of a party was immobilized by the Constituent Convention? Logically it had to be the so-called transitory lesser requirements, since otherwise they would have ceased to exist as soon as the elections of 1952 were held. We cannot overlook the fact that the delegates were deciding something which was to take effect during a period subsequent to those elections. That they referred to the lesser requirements which at that moment— they were debating the question on January 24, 1952 prior to the elections — governed for the registration of a party by petition, is evidenced by the trouble they took to spell out the phrase requirements — minimum—needed for the registration of new parties — provided-by-the-law-in-force when-this-Con■stitution-takes-effect. — Precisely, to distinguish them from the traditional requirements. If they had been referring to the so-called permanent requirements of three-fourths of the precincts and ten percent of the votes, which in such event *92would not be the minimum, the specification would have been unnecessary altogether. The effectiveness of the latter was not limited.

If in a situation in which one side and another disagree on the meaning and scope of a constitutional or legislative provision the report of those who conceived and drafted the same is useful, and it seems to me that this is the classical situation of the value of a report or of a debate, this is what was said in part on § 6 in the report of the Committee oh Transitory Provisions. After the gentlemen of the Committee advised that they did not propose to take away or limit permanently the power of the Legislative Assembly to prescribe reasonable rules for the organization of political parties : “. . . but we wish the subsistence of those which, having qualified to continue enjoying the political rights inherent in organized political parties* cast for the office of Governor ... a number of votes equivalent to five percent of the votes cast by all the parties for that office. At present this is the minimum requirement in order that the newly organized parties may register and operate as such.” (Reference is made here to the five-year period.) “We are not creating a privilege. All existing parties, ‘and even those which may be, organized’ as long as the rule herein adopted is not changed, shall enjoy the same rights.” The report establishes unquestionably (1) that the requirement of five percent was the one which the delegates considered as the law in force for the registration of a party, and (2) unquestionably that § 6 was not limited to the existing parties, but that it covered those which may be organized thereafter as long as the freezing period created by that section existed.

As soon as the proposal of § 6 was submitted to the Convention, and we already said that it read the “organized” *93political parties, delegates Dr. Figueroa and Gutiérrez Fran-qui created the main issue of the debate. Thereupon Dr. Figueroa, with a subtle scruple for being a member of a minority party, moved for the elimination of the proposal arguing that it constituted a privilege and a generosity to the existing minority parties, setting forth considerations which he elaborated further upon explaining them to delegate Barrios.

Dr. Figueroa alleged that the generosity consisted in the fact, which he stated, that the existing organized parties would have the privilege of continuing as an organized party, at a time when the Election Law required ten percent for subsistence, if they received, he said, five percent “which is the percentage required at present for the registration of a party.”

As soon as Dr. Figueroa made his proposal to eliminate § 6, because of that scruple, Gutiérrez Franqui asked him: “If the language were amended in order to make it clear that the intention is not to refer to the parties which are organized at present but to those ivhich may also be organized in the future, would the colleague withdraw then his objection in that case?” To which Dr. Figueroa answered: “Yes, in that case, yes, because in that case it would not be a privilege nor compensation to any of the parties which have been here. Therefore, for that reason, yes, I would accept it.”

Delegate Negrón López proposed an amendment to the second sentence of § 6, but made some contentions which delegate Sola Morales, Chairman of the Committee, in his turn interpreted in the sense that the position of Negrón López was that the whole matter should be deleted. In fact, for reasons somewhat remote from the problem under consideration, Negrón López was of the opinion that the matter should not be incorporated in the Constitution and on a certain occasion he said that he would agree to delete it. However, and notwithstanding the fact that Negrón López was *94treading the paths of politico-constitutional law, in the course of his argument he said:

“Well, and of course, if admitting that such is the reality we adopt a security measure to preserve these instruments which have had so much influence in a historical stage of our existence as a people, we cannot curtail the quality of our action by discriminating against other political parties. Hence, the assertion made in the question which delegate Gutiérrez Franqui made to delegate Dr. Figueroa had to be the only one which could be made, because it is not possible at all for us to make a discriminatory Constitution.”

The clear wish of Negrón López, which was also that of the Convention, was saved because the constitutional § 6 is not discriminatory in itself. However, at this time a majority of this Court by its interpretation makes § 6 discriminatory since, while one party may subsist as an instrument of political expression with all its rights and privileges by merely receiving in an election five percent of the votes for Governor, another party cannot subsist as such instrument of political expression with such rights and privileges unless it registers ten percent. Moreover, while the Convention strove hard to maintain the traditional equality of the Election Law, which was ten percent for subsistence and ten percent for registration, in order that it be five and five percent also, such effort of equality is destroyed at this time and it is said that it is five and ten percent. I fear also that such interpretation which makes § 6 discriminatory falls squarely within an unequal protection of the law.

Delegate Solá Morales heartily defended the amendment to § 6. A great part of his argument was aimed at refuting the criteria of Negrón López on other considerations. However, we find in Solá Morales’ argument statements which touch the actual problem. At one moment he said: “It seems to me that the law has been amended on two occasions and that the requirement for the registration of political parties *95has been limited.” (It is clear that he was referring to the amendments for the 1948 and 1952 elections.) “At this very moment there is a law in force in Puerto Rico which limits to five percent the number of petitions needed by a party in order to comply with the legal requirements to be an organized party, and while we have done that for the parties seeking registration we maintain in the law ten percent for the parties which are registered-and operating in the democratic struggle of the Puerto Rican people. Naturally, we contemplate that if a political party must only obtain five percent of the signatures in order to register, following the norm of our own law, it should also be recognized to the political parties which retain their personality as such if they receive also five percent of the votes. That is what would make us consistent with ourselves in the light of our former law: that it was ten and ten, now five and ten. ... We establish here without limitation, without implying that it will limit the political parties which are organized at present, according to our understanding, but any other political party which may be organized would be covered by this constitutional provision.” (Italics ours.)

The preceding arguments of Sold Morales confirm once again that it would be impossible to isolate the immobility of § 6 solely for the purposes of subsistence or survival of a party without such immobility inevitably entailing also the immobility of the registration requirements.

At the end of his argument Sold Morales said still more plainly: “There is no reason why we should embitter our life and complicate it with technicalities. It is a clear and simple thing. You, people, may register a political party with five percent of the voters who may give you their petitions. You, people, you may retain your political party if you cast five percent of the votes in the elections. That is all, since the law previously said that both things could be obtained on the basis of ten percent, today we limit it to five percent. . . . *96In the meantime I believe that there exists at present an inexplicable situation of inequality, of imbalance, because political parties are required five percent for registration purposes while another political party is required ten percent to retain its personality. I believe they should be on a par, the way it used to be in the law.” (Italics ours.)

That equality between the party to be registered and the party that was to subsist that was so eagerly searched and found in the Convention was frozen by § 6 until five years after the enactment of the Constitution by the additional prohibition that any law which changed the situation increasing the requirements for registration of a party would not go into effect until after the general election next following the approval of such change.

The debate in the Convention having been continued the following January 25, 1952, Committee Chairman Solá Morales forthwith asked Dr. Figueroa whether he was agreeable to delete from the proposal the word “organized” after “political parties” and Dr. Figueroa said he would. Section 6 of Art. IX was finally so voted.

In view of the text of § 6 and of the clear arguments on the issue herein of those who conceived and drafted § 6 and who knew what accomplishments they wished to obtain thereby, I cannot agree that after the general elections were held in 1952 that part of § 14 of the Election Law which reduced the registration requirements to one-half of the precincts and to five percent of the votes was rendered ineffective. The Constituent Convention, of higher ranking than the Legislature, took that provision by the hand and immobilized it with all its effectiveness at least for a period of five years after the Constitution went into effect, and that when the immobility ceased and a change was made such change would be effective as provided in said § 6.

Conceding that the entire legal situation admits any of the interpretations at variance, to my personal way of think*97ing I would not hesitate, in deciding the purely juridical question presented, to follow that interpretation which tends to facilitate and not to hinder or obstruct the electoral instrument to any group of political opinion.

Long ago Mr. Justice Wolf of this Court, under the regime of a territorial Organic Act, said:

“The Porto Rican law seems to make it impossible, or at least impracticable, for any voter to make an independent choice in the election. In other words, in Porto Rico the rule is that a voter must cast his ballot for candidates already named and submitted to the Board of Elections by the Executive Secretary .... Assuming this power in the Legislature of Porto Rico and finding that the only way in which all the qualified electors of Porto Rico may cast their vote as provided by the various sections of the Organic Act is by voting for one of the heretofore recognized or organized political parties or else by obtaining a right by petition, it would seem that any act which would make it hard for a considerable number of electors to cast their vote would be unconstitutional. Emphasis must be laid upon the fact that in Porto Rico, by the Organic Act, every qualified elector has a right to vote. He cannot be compelled to vote for a party with which he does not affiliate.” Martínez Nadal et al. v. Saldaña, 33 P.R.R. 687, 699-700. (Italics ours.)

Nothing short of this could be said at this time when we are governed by a Constitution which the Puerto Rican people itself adopted.

In Dávila v. Sec. of State, 83 P.R.R. 180 (1961), I had occasion to say in a case in which the question was whether or not some 264,000 newly registered voters could sign petitions to organize parties by petition (at 194):

“The enjoyment of the election franchise does not only constitute the right to cast the vote in the ballot box on election day for candidates and parties who appear in the tickets, but also the right of every citizen that the candidates of their choice be included in the electoral ballot. To deprive the newly registered voters of their right to submit petitions with candidates of their choice willing to establish government policies which *98they wish, would amount to compelling the entire new electorate to vote for candidates and government platforms of parties already existing, unless they resort to the free column in the ballot, without having an opportunity to create any new party. Such a construction on our part would not meet the public policy of the Election Law underlying a good democracy.” (Italics ours.)

Indeed, to vote on election day is but the final act of an entire political process for the obtainment of a representative and republican type of government such as that consecrated in our Constitution and which we all wish to exist. The pith of representation lies, not in the final act of voting, but rather in the initial guidance within the electoral instrument of every political expression which wishes to use that instrument and which is not yet an existing party. This takes greater significance when the voting system has been traditionally one for full candidates and when there are no separate general elections for different categories of elective offices.

The second aspect of the issue turns on the changes introduced by Act No. 140 of June 30, 1961 in § 37 of the Election Law as to the manner of registering a party. Appellants maintain that these changes are unreasonable and also that they are embodied in the immobility and restriction of § 6, and therefore that Act No. 140 should not be applicable to them in this election period.

Without advancing any opinion on those contentions, there is not sufficient basis in the record for their consideration. We should not pass on the constitutionality or unconstitutionality of the law in abstract form, and the record does not contain the factual elements necessary to determine whether the requirements prescribed by Act No. 140, if applicable, are so unreasonable in the light of the circumstances as to amount to an unconstitutional bar of the constitutional right of appellants to organize as a party.

*99For the reasons stated in this opinion, I dissent from the majority opinion.

These numbers of signatures were changed by Act No. 15 of May 12, 1920 (Sp. Sess. Laws, p. 102).

The proposal read “the organized political parties.” The enacted § 6 deleted the word “organized