No. 99-475
In the Supreme Court of the United States
STANLEY T. TORRES, ET AL., APPELLANTS
v.
MIGUEL M. SABLAN, ET AL.
ON APPEAL FROM THE DISTRICT COURT
FOR THE NORTHERN MARIANA ISLANDS
MOTION TO AFFIRM
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
JACOB M. LEWIS
H. THOMAS BYRON III
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether Congress lawfully approved a government for the Commonwealth of
the Northern Mariana Islands, in which one chamber of the bicameral commonwealth
legislature provides equal representation to the three principal island
communities within the commonwealth and therefore does not conform to the
"one person, one vote" principle required for legislative bodies
in the States.
In the Supreme Court of the United States
No. 99-475
STANLEY T. TORRES, ET AL., APPELLANTS
v.
MIGUEL M. SABLAN, ET AL.
ON APPEAL FROM THE DISTRICT COURT
FOR THE NORTHERN MARIANA ISLANDS
MOTION TO AFFIRM
Pursuant to Rule 18.6 of the Rules of this Court, the Solicitor General,
on behalf of the United States, moves that the judgment of the district
court be affirmed.
OPINIONS BELOW
The opinion of the district court (J.S. App. 1a-17a) is unreported.
JURISDICTION
The judgment of the district court was entered on May 5, 1999. The notice
of appeal was filed on May 5, 1999. The jurisdictional statement was filed
on July 6, 1999. The jurisdiction of this Court is invoked under 28 U.S.C.
1253. See note 2, infra.
STATEMENT
1. This case concerns a challenge to the electoral system of the Commonwealth
of the Northern Mariana Islands (CNMI), a chain of islands stretching northward
from Guam in the Pacific. The CNMI is an unincorporated territory that exists
in a special relationship with the United States; it is neither a State
nor an independent nation, but a self-governing commonwealth in union with
and under the sovereignty of the United States. See 48 U.S.C. 1801 and note.
a. The CNMI was once part of the Trust Territory of the Pacific Islands,
which the United States administered under the auspices of the United Nations
trusteeship program. See, e.g., Northern Mariana Islands v. Atalig, 723
F.2d 682, 684-685 (9th Cir.), cert. denied, 467 U.S. 1244 (1984); Gale v.
Andrus, 643 F.2d 826, 828-830 (D.C. Cir. 1980). The Mariana Islands District
included three principal island communities, or "municipalities":
Saipan, Tinian, and Rota. The residents of those communities ultimately
joined together to seek commonwealth status, and they entered into negotiations
to that end with the United States. Those negotiations led to a 1975 agreement
known as the Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America. 48 U.S.C.
1801 note; see S. Rep. No. 433, 94th Cong., 1st Sess. (1975); Howard P.
Willens & Deanne C. Siemer, The Constitution of the Northern Mariana
Islands: Constitutional Principles and Innovation in a Pacific Setting,
65 Geo. L.J. 1373, 1374-1384 (1977) (Willens & Siemer).
The Covenant "defines the relationship between the Commonwealth and
the United States, sets up a framework and set of mandates for the Commonwealth
Constitution, and provides for the * * * termination of the trusteeship."
Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir.), cert. denied, 506
U.S. 1027 (1992). The Covenant establishes that, upon termination of the
trusteeship, the CNMI became "a self-governing commonwealth * * * in
political union with and under the sovereignty of the United States of America."
Covenant, Section 101.1 Changes to certain "fundamental provisions"
of the Covenant-including the representational structure of the CNMI legislature,
as well as the applicability to the CNMI of the laws and Constitution of
the United States-require the consent of both the United States and the
CNMI. Id., Section 105.
Congress formally approved the Covenant in March 1976. See Pub. L. No. 94-241,
§ 1, 90 Stat. 263 (see 48 U.S.C. 1801 and note). In the course of its
review, Congress considered, among other things, the history and culture
of the Northern Marianas and the negotiations leading up to the Covenant.
See S. Rep. No. 433, supra, at 23-58; see also id. at 65-94 (section-by-section
analysis of Covenant). The Covenant was also approved by the Mariana Islands
District legislature and by a plebiscite held among the residents of the
affected islands. Id. at 63-64, 413-414.
The CNMI subsequently adopted a constitution, which was ratified by the
people in March 1977, was deemed approved by the government of the United
States in October 1977 (see Covenant, Section 202), and became effective
on January 9, 1978. See Pres. Proc. No. 4534, 42 Fed. Reg. 56,593 (1977).
Now that the trusteeship agreement has been terminated, the CNMI is under
the sovereignty of the United States. Covenant, Section 101; S. Rep. No.
433, supra, at 15.
b. Section 203(c) of the Covenant specifies that the CNMI constitution "will
provide for equal representation for each of the chartered municipalities
of the Northern Mariana Islands in one house of a bicameral legislature,
notwithstanding other provisions of this Covenant or those provisions of
the Constitution or laws of the United States applicable to the Northern
Mariana Islands." See also Covenant, Section 501(a) and (b) (generally
extending Section 1 of the Fourteenth Amendment and certain other constitutional
provisions to the CNMI, except that "[t]he applicability of [those]
provisions * * * will be without prejudice to the validity of and the power
of the Congress of the United States to consent to Section[] 203" and
certain other Covenant provisions). The island communities of Rota and Tinian
insisted upon that arrangement, see S. Rep. No. 433, supra, at 69, and,
in its absence, would not have joined the Covenant, see Willens & Siemer,
65 Geo. L.J. at 1400-1401. See also J.S. App. 9a n.7; S. Rep. No. 433, supra,
at 15-16.
The CNMI constitution fills in the details of this legislative structure.
It provides:
The senate shall consist of nine members with three members elected at large
from each of three senatorial districts. The first senatorial district shall
consist of Rota, the second senatorial district shall consist of Tinian
and Aguiguan, and the third senatorial district shall consist of Saipan
and the islands north of it. The senate shall be increased to twelve members
and three members shall be elected at large from a fourth senatorial district
consisting of the islands north of Saipan at the first regular general election
after the population of these islands exceeds one thousand persons.
CNMI Const. Art. II, Sec. 2(a).
2. Appellants-two residents of the island of Saipan in the CNMI-brought
this lawsuit on July 8, 1997, seeking declaratory and injunctive relief
to redress the disparity in population among the CNMI senatorial districts.
J.S. App. 5a-6a, 27a. Appellants contend that the disparity violates the
Equal Protection Clause of the Fourteenth Amendment because the "malapportioned"
senatorial districts dilute the electoral strength of Saipan residents in
comparison to that of the residents of Tinian and Rota. An amended complaint
named, as defendants, the members and executive director of the CNMI board
of elections in their official capacities. Id. at 26a-28a. The CNMI, the
commonwealth legislature, and the mayors of Rota and Tinian later intervened
as defendants. Id. at 6a. The United States intervened pursuant to 28 U.S.C.
2403(a) to defend the constitutionality of Public Law No. 94-241, which
approved the Covenant. J.S. App. 6a.
Sitting as a three-judge panel under 28 U.S.C. 2284, the district court
granted summary judgment in favor of the defendants. J.S. App. 17a. The
court concluded that the Equal Protection Clause did not prohibit Congress
from approving the legislative arrangement set forth in the Covenant. In
so holding, the court relied on the Insular Cases, a line of decisions issued
by this Court at the beginning of this century concerning the relationship
between the United States and its territories and possessions. See id. at
11a-12a n.9.
As the district court explained, the Insular Cases distinguish "unincorporated"
territories, which are not destined for statehood, from "incorporated"
territories, which are so destined. E.g., Downes v. Bidwell, 182 U.S. 244,
339, 342 (1901) (White, J., concurring). In unincorporated territories,
such as the CNMI (see J.S. App. 12a n.10, 16), the Constitution does not
apply automatically, but imposes only "those fundamental limitations
in favor of personal rights [that are] the basis of all free government."
Dorr v. United States, 195 U.S. 138, 146- 147 (1904) (quoting Downes, 182
U.S. at 291 (White, J., concurring)); see J.S. App. 13a. The district court
held that the "one person, one vote" principle falls short of
that standard because several democratic governments, including the Government
of the United States itself, have bicameral legislative arrangements under
which one chamber is apportioned by geographic or similar criteria rather
than by simple population. J.S. App. 16a-17a. The court therefore concluded
that the arrangement created by Section 203(c) is valid and that its approval
by Congress was lawful. Ibid.
ARGUMENT
The judgment of the district court is correct and should be summarily affirmed.
As illustrated by the structure of our own national legislature and by a
variety of legislative arrangements in other free countries, the bicameral
arrangement created by Section 203(c) does not violate any principle forming
"the basis of all free government," and Congress acted lawfully
in approving it.2
1. This Court has long distinguished between "incorporated" territories,
such as Alaska (before its admission to the Union), that are "destined
for statehood from the time of acquisition," and "unincorporated"
territories, such as Guam, that are not. See Examining Bd. of Eng'rs v.
Flores de Otero, 426 U.S. 572, 599 n.30 (1976); see also Downes v. Bidwell,
182 U.S. 244 (1901); Dorr, 195 U.S. 138; Balzac v. Porto Rico, 258 U.S.
298 (1922) (collectively referred to as the Insular Cases). In unincorporated
territories, the Constitution does not generally apply of its own force,
and Congress may exercise its powers under the Territory Clause, U.S. Const.
Art. IV, § 3, Cl. 2, to form local governments to suit local needs,
limited only by those "principles which are the basis of all free government."
Dorr, 195 U.S. at 147 (quoting Downes, 182 U.S. at 291 (White, J., concurring));
see also United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990) ("Only
fundamental constitutional rights are guaranteed to inhabitants of [unincorporated]
territories.") (internal quotation marks omitted); Corporation of the
Presiding Bishop v. Hodel, 830 F.2d 374, 385 (D.C. Cir. 1987) (applying
Dorr standard), cert. denied, 486 U.S. 1015 (1988).
As appellants concede (J.S. 7), the CNMI is an unincorporated territory.
See Wabol, 958 F.2d at 1459 n.18 (citing Atalig, 723 F.2d at 691 & n.28);
see also Covenant, Section 101 (CNMI is "a self-governing commonwealth
* * * in political union with and under the sovereignty of the United States
of America"); S. Rep. No. 433, supra, at 15; Willens & Siemer,
65 Geo. L.J. at 1397-1398. Under the Insular Cases doctrine, therefore,
the only limitations on Congress's power to approve the CNMI's form of government
are "'fundamental' constitutional rights" (Verdugo-Urquidez, 494
U.S. at 268) at "the basis of all free government" (Dorr, 195
U.S. at 147). The question here is whether the "one person, one vote"
principle is such a right, and whether that principle therefore requires
undoing the bicameral compromise without which the island communities of
Rota and Tinian would not have joined the CNMI. See p. 4, supra.3
The answer is no. Reynolds v. Sims, 377 U.S. 533 (1964), upon which appellants
principally rely, holds only that the "one person, one vote" principle
is constitutionally required in legislative bodies within the States. It
nowhere suggests that "free government" is impossible where one
house of a bicameral legislature is apportioned by criteria other than simple
population. Indeed, any such notion is irreconcilable with the structure
of our own federal government, as well as with the structure of a number
of free foreign governments.
First, the United States Constitution establishes two Houses of Congress,
one of which (the House of Representatives) is apportioned by population,
and the other of which (the Senate) is "composed of two Senators from
each State." U.S. Const. Art. I, § 3, Cl. 1; see also id., Amend.
XVII.4 The CNMI's legislature follows the same model. Like Congress, it
is bicameral, with one chamber representing the residents by population
and another, smaller chamber representing geographic components. Like Congress,
it exemplifies representative democracy within a polity formed by the conjunction
of distinct entities.
Appellants' only response to this point (J.S. 14) is that the "historical
and constitutional antecedents" to the composition of the Senate led
the Reynolds Court to deem the federal example inapplicable to the States.
That answer, however, cuts against appellants' position rather than for
it. The bicameral structure of Congress, and the different apportionment
schemes for the House and Senate, resulted from "a compromise between
the larger and smaller States," which "averted a deadlock in the
Constitutional Convention which had threatened to abort the birth of our
Nation." Reynolds, 377 U.S. at 574; see also INS v. Chadha, 462 U.S.
919, 950 (1983); The Federalist No. 62 (James Madison), supra. Similar considerations
led to the design of the CNMI Covenant. Section 203(c) is the product of
a compromise between the more populated municipality of Saipan and the less
populated municipalities of Tinian and Rota. Without that compromise, those
islands would not have been unified in a single commonwealth, and the CNMI
would not exist in its present form. See Willens & Siemer, 65 Geo. L.J.
at 1400; see also S. Rep. No. 433, supra, at 15-16, 69.
In rejecting malapportioned state legislative arrangements, the Reynolds
Court also reasoned that, unlike the role of States within the federal union,
"[p]olitical subdivisions of States-counties, cities, or whatever-never
were and never have been considered as sovereign entities." 377 U.S.
at 575. By contrast, "the municipalities of Saipan, Tinian, and Rota
are not governmental subdivisions created by the legislature, but are separate
island communities with divergent histories, traditions and problems."
S. Rep. No. 433, supra, at 69 (citing Reynolds, 377 U.S. at 575). Although
the three islands were not sovereign in the same sense as the States, they
had a similar claim to independence, which they gave up when they exercised
the right of self-determination inherent in trusteeship and joined in political
union with the United States. See Willens & Siemer, 65 Geo. L.J. at
1377 & n.14, 1380. Congress accordingly recognized that the CNMI's "departure
from the One Man-One Vote rule thus is justified under Reynolds." S.
Rep. No. 433, supra, at 69.5
Moreover, even apart from the example of the United States Senate, "[s]everal
countries that are considered to have 'free government' have a bicameral
legislature in which one house is malapportioned." J.S. App. 16a. Such
nations include many-such as Australia (equal representation of each state),
Brazil (equal representation of each of its states and its federal district),
and South Africa (equal representation of each province)- whose second chambers
represent constituent parts of the nation. See 2 World Encyclopedia of Parliaments
and Legislatures 848, 850 (George Thomas Kurian, ed. 1998). Examples of
other free countries with distinctive arrangements in their second chambers
include the United Kingdom (hereditary peers, until recently) and Italy
(former presidents). Ibid. Those and similar examples belie appellants'
claim that the CNMI's legislative arrangement violates a principle at "the
basis of all free government" (Dorr, 195 U.S. at 147).
2. Appellants cite extensively from passages in Reynolds underscoring the
importance of the "one person, one vote" principle as applied
to the States. See J.S. 9-13. But the fact that the "one person, one
vote" requirement is fundamental in that domestic sense does not mean
that it is a "fundamental" right at "the basis of all free
government" within the meaning of the Insular Cases. As the Ninth Circuit
explained in a related context, "the doctrine of incorporation for
purposes of applying the Bill of Rights to the states serves one end while
the doctrine of territorial incorporation serves a related but distinctly
different one." Atalig, 723 F.2d at 689; see also Wabol, 958 F.2d at
1460. The selective incorporation of the Bill of Rights into the Due Process
Clause restricts the conduct of the States and, within our federal system,
protects certain rights against infringement by either federal or state
action. By contrast, the Insular Cases doctrine is designed to preserve
Congress's flexibility, under the Territory Clause, to act as it deems appropriate
when dealing with unincorporated territories, which are not destined for
inclusion within the federal system.6
3. Appellants note that, under Ninth Circuit precedent, the court below
could have conducted, but did not conduct (see J.S. App. 14a n.11), a further
inquiry into whether application of the "one person, one vote"
principle to the CNMI would be "impractical and anomalous." See
Wabol, 958 F.2d at 1460-1462.7 Appellants do not clearly contend, however,
that the district court should have conducted that inquiry. See J.S. 16.
And, indeed, such an inquiry would have cut against appellants' position,
not for it.
As discussed above, the political compromise underlying Section 203(c) was
necessary for political union within the Northern Marianas, and Congress
properly "accommodat[ed] the unique social and cultural conditions
and values of the particular territory." Wabol, 958 F.2d at 1460. The
distinct experiences of each of the three principal island communities,
as well as the goal of a unified commonwealth, justified Congress's decision
to accept the Covenant's provision for their equal representation in the
CNMI senate. As trustee, the United States was obligated both to preserve
local culture and to respect the right of the Northern Marianas people to
exercise self-determination. S. Rep. No. 433, supra, at 132 (reprinting
trusteeship agreement). The legislative arrangement set forth in Section
203(c) of the Covenant is the product of such self-determination, and, indeed,
it is identified as one of the "fundamental provisions of th[e] Covenant"
that may be modified only upon the consent of both the United States and
the CNMI. Covenant, Section 105. Invalidating it now would undermine the
premise on which the CNMI itself was founded. As we have explained, the
Constitution does not require that anomalous result.
CONCLUSION
The judgment of the district court should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
JACOB M. LEWIS
H. THOMAS BYRON III
Attorneys
DECEMBER 1999
1 At the time the covenant was signed, the U.S. trusteeship remained in
place. The covenant provided that the CNMI would assume commonwealth status
upon termination of the trusteeship. Covenant, Section 101. The trusteeship
was terminated on November 3, 1986. Pres. Proc. No. 5564, 51 Fed. Reg. 40,399
(1986).
2 This Court's jurisdiction rests on 28 U.S.C. 1253, which provides for
a direct appeal of any order granting or denying injunctive relief in a
case "required by any Act of Congress to be heard and determined by
a district court of three judges." In turn, 28 U.S.C. 2284(a) provides
that such a court shall be convened "when an action is filed challenging
the constitutionality of the apportionment of * * * any statewide legislative
body." This Court has construed the term "State statutes"
in a similar jurisdictional statute (28 U.S.C. 2281 (repealed)) to cover
the laws of territorial commonwealths that, while not States, are sufficiently
autonomous as to warrant convening a three-judge court out of deference
to local laws. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
663, 669-676 (1974); see also 48 U.S.C. 1821(c), 1824 (providing that provisions
of Title 28 are generally applicable to District Court for the Northern
Mariana Islands). Because the CNMI enjoys such autonomy, we believe that
a three-judge court was properly convened and that this Court has appellate
jurisdiction over this case. We also believe that the district court correctly
rejected the separate jurisdictional challenge (see J.S. App. 18a-24a) based
on the mistaken notion that Section 902 of the Covenant provides an exclusive
political remedy for any apportionment challenge. See Reynolds v. Sims,
377 U.S. 533, 553 n.25 (1964); Lucas v. Forty-Fourth Gen. Assembly, 377
U.S. 713, 736-737 (1964); see also Covenant, Section 903.
3 As the district court noted (J.S. App. 10a-14a), the Ninth Circuit has
twice upheld other provisions of the Covenant deeming particular constitutional
principles inapplicable to the CNMI. See Wabol, 958 F.2d at 1450; Atalig,
723 F.2d at 682. This Court denied certiorari in both cases. See Wabol,
506 U.S. at 1027; Atalig, 467 U.S. at 1244.
4 As James Madison explained, the allocation of two Senators to each State
presents several advantages. One is the "additional impediment [that
state representation in the Senate] must prove against improper acts of
legislation. No law * * * can now be passed without the concurrence first
of a majority of the people, and then a majority of the states." The
Federalist No. 62, at 417 (James Madison) (Jacob E. Cooke ed., 1961). In
our federal system, representation of the States in the Senate is also "a
constitutional recognition of the portion of sovereignty remaining in the
individual states." Ibid.
5 Commentators agree. See Willens & Siemer, 65 Geo. L.J. at 1401-1402
("[T]hese islands have developed separate communities with customs
and traditions distinct from one another. * * * In approving the Covenant,
Congress understood and respected the separate island identities and recognized
that the Covenant's requirement of equal representation in one house of
the Northern Marianas legislature was for this reason fully consistent with
the [Insular Cases]."); Don A. Farrell, History of the Northern Mariana
Islands 481 (CNMI Public School System 1991) ("It is important to note
that there was not complete cultural and political unity among the islands
of the Marianas. The Rotanese culture had developed somewhat apart from
that of Saipan. Both were rather different from the culture of the repatriated
Chamorros from Yap living on Tinian."); id. at 531 ("Tinian and
Rota developed along somewhat similar political lines. * * * Rota also developed
its own municipal government, again along slightly different lines from
either Saipan or Tinian. This is not unexpected as Rota has had a different
historical experience than either Saipan or Tinian.").
6 Appellants rely (J.S. 13-14) on dicta in Rodriguez v. Popular Democratic
Party, 457 U.S. 1 (1982), that "the voting rights of Puerto Rico citizens
are constitutionally protected to the same extent as those of all other
citizens of the United States." Id. at 7-8. In Rodriguez, this Court
rejected a federal constitutional challenge to Puerto Rico's system of filling
interim vacancies in its legislature. The Court did not decide the question
presented here, and appellants do not suggest otherwise. Moreover, this
Court has extended certain constitutional guarantees to the people of Puerto
Rico on the understanding that, although those guarantees might not be applicable
there of their own force, Congress intended that they be applied there-and
had thus, with respect to Puerto Rico, implicitly "overruled"
the "limitation on the application of the Constitution in unincorporated
territories." Torres v. Puerto Rico, 442 U.S. 465, 470 (1979) (cited
in Rodriguez, 457 U.S. at 7); see also Examining Board of Eng'rs v. Flores
de Otero, 426 U.S. 572, 599 & n.30 (1976) ("The Court's decisions
respecting the rights of the inhabitants of Puerto Rico have been neither
unambiguous nor exactly uniform."). Here, by sharp contrast, Congress
has formally approved the legislative arrangement designated in the Covenant,
notwithstanding any "provisions of the Constitution" that might
be invoked to the contrary. Covenant, Section 203(c); see Pub. L. No. 94-241,
90 Stat. 263; S. Rep. No. 433, supra, at 69.
7 As the Wabol court indicated, the "impractical and anomalous"
standard is a means of preserving Congress's power under the Territory Clause
to "accommodate the unique social and cultural conditions and values
of the particular territory." 958 F.2d at 1460-1461. The court highlighted
the need for courts to "be cautious in restricting Congress' power
in this area." Ibid.