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.

LUMBARD, Chief Circuit Judge:

These three suits brought by New York voters 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.

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." 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 procedure 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. 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. 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 vacanc[y] 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. 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 elections and the procedures to be used in selecting candidates for such elections. This interpretation gains support from Art. 1, § 4 of the Constitution which gives to the state legislatures the initial power to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives * * *. If the drafters of the Seventeenth Amendment had intended to bring about a radical departure from this normal rule of state discretion in the instance of the timing and manner of holding vacancy elections, such as by requiring special elections, it is likely that they would have employed clear language to that effect; of course they did employ such clear language in requiring that the states elect their Senators through a popular vote.

But we do agree with plaintiffs that the Amendment's drafters did intend to place some limit on the discretion of the states concerning the timing of vacancy elections by specifying that a Governor may make only a "temporary" appointment until an election is held. We would have difficulty, for example, squaring the word "temporary" with a statute providing that the Governor's appointee is to serve out the remainder of a term regardless of its length. The question before this court is whether § 296 exceeds the limits of the discretion conferred upon the states by the Amendment.

It is highly significant that most legislatures, as indicated by the Senatorial vacancy statutes of the 50 states, have interpreted the Seventeenth Amendment as granting to the states a discretion concerning the conduct of vacancy elections sufficiently broad to encompass the terms of New York Election Law § 296. More particularly, these statutes reflect a consensus of the states that it is permissible for a "temporary" appointee to hold office until the next regular congressional election before which there remains sufficient time to nominate candidates and conduct a campaign.

In the three years following the ratification of the Seventeenth Amendment, 1913 through 1915, 40 states passed statutes regulating the timing of Senate vacancy elections, and in most instances authorizing the governor to make a temporary appointment until the election was held. As Table I shows, 23 of these 40

TABLE I -------

MAXIMUM PERIOD OF DELAY AUTHORIZED BY SENATE VACANCY STATUTES BETWEEN OCCURRENCE OF VACANCY AND THE VACANCY ELECTION

Maximum Delay Number of States Timing of Vacancy Authorized Having Provision in: Election Before Election 1915 1968 -----------------------------------------------------------------

Special Election by No specific 2 0 Order of Governor authorization of delay

Special Election One year 9 5 within one year of creation of vacancy

Next annual ("general" One year, plus 4 3 or "municipal") time for election nominations

Next biennial ("general", Two years, plus 23 40 "congressional", time for regular" or "state") nominations election -------------------- 38 48 ===================================================================== States with laws requiring election within approximately one year of creation of vacancy 15 8

States with laws allowing interval of approximately two years or more before election 23 40

states provided that a vacancy in the Senate be filled at the next regular biennial statewide election at which it was practical to do so. The precise wording used in these statutes varied slightly. In most the date was described as the next "general" election; in others it was termed the next "congressional" election; and in still others the description next "state" or simply "regular" election was used. But the effect of all of these terms was the same as that resulting from the requirement of New York's § 296 that vacancy elections be held only in "even-numbered" years: a delay of two years could occur before a Senatorial vacancy was filled by the voters at an election.

It is true that 13 of the states which acted between 1913 and 1915, including New York, Laws 1913, ch. 822, did pass statutes which required that an election be held within approximately one year from the occurrence of a vacancy; two more provided that a special election should be held but specified no date. But the fact that these legislatures chose to provide for vacancy elections within approximately one year cannot be taken as proof that they believed themselves without power under the Seventeenth Amendment to authorize that a longer interval occur before the election.

In the years since 1913 the states, in light of their experience in filling Senatorial vacancies, have taken a more liberal view of their power under the Amendment; many more states now require that Senatorial vacancy elections be held only in conjunction with the biennial congressional elections. Thus today the statutes of 40 states in effect establish such a policy; only eight states require that an election be held within approximately one year after a vacancy has arisen.

While this impressive coincidence of contemporaneous interpretation and subsequent practice among the states is not sufficient alone to resolve this case, there is ample authority for relying on this evidence as one persuasive guide to constitutional construction.

In McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1892), a Michigan statute providing for the election by district of presidential electors was challenged as violating Article II, § 1, cl. 2 of the Constitution which provides:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress * * *." (emphasis added)

A unanimous Supreme Court upheld the statute, placing great emphasis on the widely varying state legislation contemporaneous with, and subsequent to, the ratification of the Constitution. This "practical interpretation," the Court felt, supported viewing the clause in question as granting broad discretion to state legislatures regarding the manner of choosing electors. The Court made this comment:

"The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction is entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration so plainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the constitution being too strong and obstinate to be shaken or controlled. Stuart v. Laird, 1 Cranch, 299, 309 [ 2 L.Ed. 115]." 146 U.S. at 27, 13 S.Ct. at 7.

Of similar import is Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932):

"The practical construction of article 1, § 4 [relating to the state's power to set the time, place, and manner of holding Congressional elections], is impressive. General acquiescence cannot justify departure from the law, but long and continuous interpretation in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case of constitutional provisions governing the exercise of political rights, and hence subject to constant and careful scrutiny. Certainly, the terms of the constitutional provision furnish no such clear and definite support for a contrary construction as to justify disregard of the established practice in the states." 285 U.S. at 369, 52 S.Ct. at 400. (emphasis added)

See Cooley v. Board of Wardens, 12 How. 299, 53 U.S. 299, 314-315, 13 L.Ed. 996 (1852); cf. Ray v. Blair, 343 U.S. 214, 229-230, 72 S.Ct. 654, 96 L.Ed. 894 (1952).

There is little doubt that the problem of holding Senate vacancy elections has been subjected, in the phrase of Smiley v. Holm, to "careful scrutiny" by the states. There were 156 temporary appointments to the Senate in the years from 1913 to 1967. That in the light of this experience more and more states have chosen to adopt vacancy statutes similar to § 296 provides a firm basis for the conclusion that substantial state interests are furthered by the formula which New York has adopted. It should be noted that not until 1949 did New York experience the necessity, under its previous statute, of holding elections for the same Senate seat in two successive years. This probably explains why New York did not adopt the prevailing form of vacancy statute — deferring the election until the next congressional election — until 1951.

We find that there are at least three substantial state interests which are furthered by the requirement of § 296 that Senate vacancy elections be held only in "even-numbered" years. It is in those years, when either a United States President or a Governor of New York is elected, and when all the members of the House of Representatives are elected, that voter interest and turnout are at a maximum; this is obviously a more desirable time to fill as important an office as United States Senator. The New York "general" elections in odd-numbered years in fact are dominated by local county and city elections; the only statewide elections concern the often uncontested positions on the New York Court of Appeals and occasional proposals to amend the state constitution. The legislature might reasonably have concluded that local elections should be preserved from the more party-oriented political currents generated by statewide or national contests.

Moreover, it would be considerably more difficult for Senate candidates to finance a campaign in an off-year; they must carry most of the burden themselves since the party organizations do not usually collect funds in such years to conduct campaigns regarding national issues. Of course, the greater use of television in recent campaigns places those candidates unable to raise large sums of money at a great disadvantage, particularly in New York with over 3,000,000 registered voters, many of whom could not be effectively contacted by any other means. Finally, the experience of New York under its previous vacancy law with successive Senatorial elections in 1949 and 1950, apparently gave rise to the conclusion that the inconvenience and expense to the state of this procedure outweighed any advantages to be derived from having a more prompt vacancy election than is now required by § 296.

We believe that it was to allow the different states to take account of considerations such as these that the vacancy provision of the Amendment granted to the legislatures an area of discretion.

While we have seen that a clear concensus has developed among the states concerning the appropriateness of conducting vacancy elections only in congressional election years, no such consensus is reflected in the provisions governing the time which must elapse between the occurrence of the vacancy and the election at which it is filled. As Table II below indicates, seven of the 40 laws passed from 1913 to 1915

TABLE II --------

MINIMUM PERIOD OF DELAY REQUIRED BY SENATE VACANCY STATUTES BETWEEN OCCURRENCE OF VACANCY AND THE VACANCY ELECTION

Number of States With Minimum Delay This Requirement in: Required 1915 1968 ------------- ----------------------

No specific requirement 33 27

1-89 days 4 8

90-180 days 2 6

Period between primary and election, plus 40-70 days 1 8 -------------------- 40 49

explicitly required that some period intervene between the creation of a vacancy and the holding of an election to fill it. The obvious purpose of these provisions was to allow time for the party nominees to be selected and for a campaign to be conducted by the nominees. Only one statute, that of Pennsylvania, specifically provided that the candidates were to be selected through a primary procedure. Although none of the early statutes required a delay as long as the seven month period which must now intervene under § 296 between the occurrence of a vacancy and an election to fill it, a few provided for delays of almost this length. Ohio Laws 1914, House Bill No. 3 (180 days); Mich. Laws 1915, No. 156 (120 days). Moreover, the wide variation in the provisions of these statutes reflects an interpretation of the Amendment which would allow the states a liberal degree of discretion concerning the procedures to be used in the selection of candidates for Senate vacancy elections.

The diversity among these provisions has continued to the present. See Table II. Most states still do not specifically provide for a delay between the vacancy and the election, although surely the need for at least some delay to allow for the nomination of candidates is implicit in all of the statutes. The current vacancy statutes of 22 states require that there be some interval before the election is held. The intervals required by the laws of four states exceed the interval which has occurred here under § 296 between the occurrence of the Kennedy vacancy and the November, 1968 election. Me. Rev.Stat.Ann. tit. 21, §§ 1531, 448 (1964-65) (60 days prior to June primary); Ohio Rev. Code Ann. § 3521.02 (Baldwin 1968) (180 days); Wis.Stat.Ann. § 17.18 (Supp. 1968) (60 days prior to July primary); see So.Dak. Code §§ 16.0602 (1939), 16.0202 (Supp. 1960) (sufficient time before June primary) (by implication). In eight states, including New York, the interval is for the purpose of conducting a primary.

We do not believe it a matter of constitutional significance that the delay before the election required under § 296 is a few months longer than is required by most other states due to New York's decision to conduct a primary, and to hold it in June. We interpret the Seventeenth Amendment, as have most of the state legislatures, to allow the states to conduct Senate vacancy elections in accordance with their regular election procedures, so long as those procedures further substantial state interests.

New York's decision to require candidates for a vacancy election to be selected subject to a direct primary is supported by policy considerations even more compelling than those which justify the prohibition of vacancy elections in "off-years."

New York did not have a direct primary election for statewide candidates, including Senators, until 1967. Laws 1967, ch. 716, § 2; Election Law § 131 (McKinney Supp. 1968). Prior to this law the people voted only for delegates to their party's nominating convention, and the convention nominated the candidates. There was recurrent public debate over whether this procedure resulted in "boss" dominated conventions, and the 1967 statute was the culmination of recurrent efforts to provide some means of challenging the convention's nominee at the polls. Under the law a meeting of each party's state committee selects a candidate, but this choice may be challenged in the June primary by anyone receiving at least 25% of the delegate votes cast on any ballot at the committee meeting, Election Law § 131(3) (Supp. 1968), or by anyone who is able to gather supporting signatures from at least 5%, or 10,000, of the party's enrolled voters. Election Law § 136(2) (a) (Supp. 1968). In 1968 the Democratic Party's voters selected at the primary the candidate who had gotten on the ballot through the signature petition method, rather than the candidate who had received the designation of the party's state committee.

If we had ruled that the need for a prompt election in 1968, or shortly thereafter, outweighed the state's interest in conducting a primary, the nominees for the vacancy would have had to have been selected by the few hundred members of the state committee of each party, rather than by the several million enrolled party members. Election Law, § 131(7). The choice, then, is between securing a prompt decision by the people between the nominated candidates, and delaying that decision in order for the people to participate directly in the nominating process. We believe, and hold that the drafters and ratifiers of the Seventeenth Amendment believed, that this type of choice between election procedures is best left to the discretion of the states when there are substantial interests which will be served by either alternative.

The Attorney General has advanced three reasons in support of the Legislature's decision in 1965 to change the date of the primary from the "seventh Tuesday before the general election," Election Law § 191(1)(a) (1964), to the "third Tuesday in June before the general election." Laws 1965, ch. 1070, effective Jan. 1, 1966. First, it was thought that voter participation would be greater if the primary was held in the spring, rather than in the fall within two months of the date when the voters must turn out again for the general election. Second, the fact that additional time in which to conduct a campaign would remain after the nominees had been selected was regarded as beneficial to both parties, and in particular to candidates campaigning against an incumbent. Finally, under the previous law it was found that the state Court of Appeals was forced to sit specially almost until Election Day in order to rule on challenges stemming from the fall primary. See Stenographer's Minutes of Oral Argument at 58-59. We do not find expressed or implied in the Seventeenth Amendment a policy which so clearly favors prompt vacancy elections that this court should second-guess the decision of the legislature to apply its spring primary system in the case of Senate vacancies in order to further these substantial state interests.

Plaintiffs make several contentions in attempting to establish the unconstitutionality of § 296 despite the wording of the Seventeenth Amendment, the interpretation given to the Amendment by most state legislatures, and the substantial state interests which are furthered by the law. We have examined each of these contentions with great care, mindful that no court has previously construed the Amendment's vacancy provision. In the end we find that none of plaintiffs' arguments offset the impressive showing made in favor of the constitutionality of § 296.

Plaintiffs base their argument that § 296 exceeds the discretion conferred by the Seventeenth Amendment largely on two asserted analogies to the Amendment's vacancy provision. One analogy proceeds from the vacancy provision applicable to the House of Representatives and the other from the portion of the original Constitution superseded by the Amendment. We do not find either of these analogies persuasive.

Plaintiffs point out that the first portion of the Seventeenth Amendment's vacancy provision, stating that in the event of a vacancy the governor "shall issue writs of election to fill such vacancies" is modeled on Art. I, § 2, cl. 4 of the Constitution, which deals with vacancies in the House of Representatives. Plaintiffs argue that the House clause requires the governor to call a prompt election to fill a vacancy, and conclude that the similar language in the Seventeenth Amendment must also be interpreted as mandating prompt elections.

Initially, it is not clear that Art. I, § 2, cl. 4 does require the governor to call a prompt election. Clearly he must issue a writ of election, but a few states have interpreted this clause to leave the timing of the election within the governor's discretion. See Ariz.Rev.Stat.Ann. § 16-704 (1956); Del. Code tit. 15, § 7302 (1953); N.Mex.Stat.Ann. § 3-10-20 (1953); Utah Code Ann. § 20-1-5 (1953); Wisc.Stat.Ann. § 8.50 (1967).

But assuming that special elections are required by Art. I, § 2, there are important factors which vitiate the relevance of the House vacancy provision to our problem. That provision, unlike the Seventeenth Amendment, does not authorize temporary appointments. The framers of the Amendment might logically have concluded that prompt elections were less essential for vacancies occurring in the Senate than in the House since a state will be represented in the Senate by the Governor's temporary appointee until an election is held. Furthermore, the state almost always will be represented by its other elected Senator during the existence of any vacancy, while in contrast a vacancy in the House of Representatives leaves the affected district's residents completely without representation in the House until an election.

An important practical consideration also distinguishes the instance of a House vacancy from one occurring in the Senate. It is much easier for both the state government and the political parties to organize and conduct a special election in a single House district than to conduct one covering a populous state such as New York. In New York the problems of administering an election, financing a campaign, and familiarizing the electorate with the candidates are multiplied roughly 41 times in a statewide election as opposed to an election held in one of the state's 41 House districts. This fact supports the decision of the legislature not to hold special elections to fill Senate vacancies. It also provides another logical explanation for the apparent intent of the drafters of the Seventeenth Amendment to place decisions concerning the conduct of vacancy elections largely in the hands of the various state legislatures; what might be a perfectly feasible procedure in a small state such as Delaware might prove unworkable in a populous state like New York, or a vast state like Alaska.

All of these reasons persuade us that the House vacancy provision can give us no aid in construing the Seventeenth Amendment.

There is a bit more substance in plaintiffs' analogy from the clause of the Constitution which was superseded by the Seventeenth Amendment. The Constitution originally provided for the selection of Senators by the respective state legislatures. Art. I, § 3, cl. 1. Clause 2 of this section provided in these terms for the filling of vacancies:

[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. Art. I, § 3, cl. 2.

At the time the Constitution was ratified it was customary for the state legislatures to meet at least once a year. See A Collection of the Thirteen United States of North-America (1783) (published by order of Congress); The American's Guide (1839) (compilation of state constitutions). See generally Dealey, Growth of American State Constitutions (1915). Consequently, in practice a "temporary" appointee named under the authority granted by Art. I, § 3, normally would hold office for no longer than one year, the maximum interval between the adjournment of the legislature and the convening of its "next Meeting." An excerpt from the debates of the Constitutional Convention indicates that this was the understanding of at least two of the Founding Fathers.

The clear purpose of the Seventeenth Amendment was to give effect to the direct voice of the people in the selection of Senators. See, e. g., Sen. Rep. No. 961, 61st Cong., 1st Sess. (1911). Starting from this premise, plaintiffs argue that the Amendment should be construed to prohibit delays in the holding of vacancy elections which materially exceed the approximate one year limit established under Art. I, § 3. They contend that it would be incongruous to construe an Amendment which embodies the principle of popular sovereignty as countenancing the delay of 29 months mandated by § 296 in this case, a delay more than twice as long as was the custom which plaintiffs contend prevailed before the adoption of the Amendment.

However, our research reveals that by 1913 there was in fact no settled custom under Art. I, § 3 to limit vacancy appointments to one year. As early as 1814 an appointment is recorded which extended for approximately 19 months. Toward the end of the Nineteenth Century more and more state legislatures began to meet only in alternate years, with the result that a period of almost two years could intervene between the occurrence of a Senate vacancy and the "next meeting" of the legislature. Between 1789 and 1913 there were 179 Senatorial appointments; 32 of these appointees served for more than one year and 17 of these served for at least 14 months. Thus while a heavy preponderance of appointments prior to 1913 did not extend beyond one year, it cannot not be said that at the time the Seventeenth Amendment was proposed an appointment for a longer period was regarded as impermissible. It is apparent that Art. I, § 3, was never interpreted to require that a special session of the legislature be convened to fill a Senate vacancy promptly after it arose. This fact provides no support for plaintiffs' contention that special elections are required to fill vacancies under the Seventeenth Amendment.

Even if there had been a consistent practice prior to 1913 to limit temporary appointments to approximately one year, our ultimate decision here would be no different. There is very little evidence from the legislative history of the Seventeenth Amendment that the Congress and state legislatures which adopted it regarded the phrase "temporary appointments" as possessing a meaning derived from the practical experience under Art. I, § 3.

It is true that Representative Tucker of Virginia, who in 1892 drafted and first introduced the vacancy provision ultimately ratified as part of the Seventeenth Amendment, regarded a one year limit on the length of temporary appointments as implicit in his proposed provision. In addition, one brief reference to the vacancy provision by Senator Bristow during the 1911 Senate debate over the Amendment supports plaintiffs' position in this case. But these two isolated statements fall far short of establishing that the Congress which approved the Amendment in 1912 adopted an interpretation of it contrary to New York's § 296. We do not find these bits of legislative history persuasive when weighed against the substantial state interests furthered by § 296, interests which have led most of the states to adopt similar statutes postponing vacancy elections until the next regular congressional election.

Little weight can be given to Representative Tucker's 1892 interpretation of his vacancy provision since there is no indication that the Congress which proposed the Seventeenth Amendment was even cognizant of his opinion. In the period from 1892 to 1912 many alternative vacancy provisions were placed before Congress as part of proposed amendments which failed of passage. Several of these provisions specifically incorporated language concerning the timing of vancancy elections which is roughly similar to the interpretation of the Seventeenth Amendment urged on us by the Attorney General. At least one of the proposals reached a result very close to the one contended for by the plaintiffs in this suit. No inference one way or the other can be drawn from the fact that none of these conflicting specific proposals was adopted.

There is no direct evidence revealing the reason for the ultimate return in 1912 to the vacancy provision contained in Tucker's original draft. However, it appears that the Tucker draft became the focus of attention not because of its vacancy provision, but because it included a clause which would have vested in the states exclusive control over the "Times, Places, and Manner of holding Elections for Senators." This repeal of the residual federal power over Senate elections contained in the original Constitution, Art. I, § 4, cl. 1, was sought by southern Senators as the price for their support of the principle of popular elections. See Bristow, Resolution for the Direct Election of Senators (1912) (Senate Doc. 666, 62d Cong., 2d Sess.). While this clause was struck from the Amendment before its final passage, this history possibly explains the presence of the Tucker vacancy provision in the Seventeenth Amendment. It does not seem that this provision was discussed in the 1911-12 congressional debates over the Amendment with the exception of the one brief reference by Senator Bristow noted previously. See note 22 supra. The attention of the Senate was focused in particular on the southern attempt to achieve state control over the conduct of Senate elections and, of course, on the basic issue of popular elections.

We must conclude, therefore, that the legislative history of the Amendment sheds little light on the interpretation of the vacancy provision and does not sustain plaintiffs' contentions in this case. We read the Amendment to confer a reasonable discretion upon the states concerning the timing and manner of conducting vacancy elections. We hold that New York Election Law § 296, passed in response to the state's actual experience in these matters, is a permissible exercise of that discretion because it furthers important interests of the state and is in substantial agreement with both the original and current interpretation of the Seventeenth Amendment adopted by most state legislatures.

Our dissenting brother finds decisive in his resolution of this case such Supreme Court decisions as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). These are instances, it is true, where the Supreme Court adopted an interpretation of a constitutional amendment contrary to the laws passed by many states soon after they ratified the Amendment. See also Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). We do not assert, of course, that contemporaneous state statutes always constitute persuasive authority for the constitutional interpretation which they incorporate. But Baker and Brown are far removed from the circumstances of this case. Both interpreted the equal protection clause of the Fourteenth Amendment, a provision which restricts ("No state shall * * * deny") rather than confers ("as the legislature may direct") state discretion. In both cases the need for innovative judicial intervention was at a maximum for the political process had consigned a minority of a state's citizens to a permanent position of inferiority with no real hope of legislative redress. Cf. Hobson v. Hansen, 269 F. Supp. 401, 506-508 (D.D.C. 1967). Also in this category is Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (Oct. 15, 1968), where the laws of Ohio, if left undisturbed, stood as a continuing barrier to the practical ability of minority political parties to gain a place on the state's ballot.

In this case we are confronted with no fundamental imperfection in the functioning of democracy. No political party or portion of the state's citizens can claim that it is permanently disadvantaged by § 296, or that it lacks effective means of securing legislative reform if the statute is regarded as unsatisfactory. We have, rather, only the unusual, temporary, and unfortunate combination of a tragic event and a reasonable statutory scheme.

New York's Legislature has seen fit, in the light of experience and changing conditions, to provide that senatorial vacancies be filled by an election to be held when the people are also electing their representatives to the House. The Legislature has also provided that opportunity be given to select the candidate for Senator at party primaries, and has decided to hold primaries in June, instead of September. One of the goals served by these changes in the state's law is to maximize voter participation in the nomination and election of Senators, even though as a consequence the holding of elections is somewhat delayed. Forty states have exercised their discretion under the Seventeenth Amendment in a manner consistent with one or more of the provisions of § 296.

We are aware of the importance of the right to vote in this country's general scheme of constitutional government. See Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (Oct. 15, 1968). We are also aware of the basic principle of federalism which requires that a federal court exercise great caution before striking down a state statute as repugnant to the Constitution. As there are substantial state interests furthered by each of these changes affected by § 296 in the timetable for filling senate vacancies by election, and as the Seventeenth Amendment has specifically given to the legislatures of the states power to regulate vacancy elections, it is not for a federal court to substitute its own judgment for that of the elected representatives of the people. The lessons of history and the accumulating judgments of the states in the light of experience support our conclusion that the laws of New York do not contravene the powers which the Constitution has given to the state legislatures, although in the tragic circumstances of Senator Kennedy's death the statutory chronology results in a delay of 29 months before the election of his successor by the people.

The complaints are dismissed.

Duplicate originals of this opinion are being filed in the Western District of New York and in the Southern District of New York.

APPENDIX B Citations to Original and Current Senate Vacancy Statutes of the Fifty States

Alabama first provided for a special election if more than four months remained before the general election. Law 1915, No. 410, p. 364.

The present law is similar. Code tit. 41, §§ 166, 167 (1958).

Alaska first provided, and now provides, for filling the vacancy at the first general election more than three months after the vacancy; however, the governor's temporary appointee may serve out any unexpired term of 29 months or less. Stat. §§ 15.40.030, 15.40.050 (1962). General elections are held in even numbered years. Stat. § 15.15.020 (1962).

Arizona first provided for filling the vacancy at the next general election. If this would have resulted in a lapse of more than six months, the governor had power to call a special election. Rev. Stat., Civ. Code tit. 12, § 2870 (Pattee 1913). General elections were held every even year. Rev.Stat., Civ. Code tit. 12, § 2866 (Pattee 1913).

The present law is identical. Rev.Stat. Ann. §§ 16-722, 16-701 (1956).

Arkansas first provided for holding a special election within a year of the occurrence of the vacancy. Acts 1917, No. 402, p. 1869.

Present law provides for filling the vacancy at the first general election more than four months after the vacancy. Const. Amend. XXIX, §§ 1, 4, 5 (1947). General elections are held every two years. Const. Art. III, § 8.

California first required filling the vacancy at the next general election, which was held every even year. Stat. 1913, ch. 156, pp. 237, 238 Cal.Polit. Code § 1041 (Deering 1915).

The present statute is identical. Elections Code Ann. §§ 25001, 2500 (Deering 1961).

Colorado first required filling the vacancy at the next general election, which was held annually, Laws 1913, ch. 79, p. 267; Const. Art. VII, § 7.

Under current law the general election is held "every even numbered year." Rev.Stat. § 49-2-1 (1964). The vacancy statute is identical to the 1913 law. Rev. Stat. 49-19-2 (1964).

Connecticut first required simply that the governor should order an election, apparently at his discretion. Pub. Acts 1913, ch. 219, pp. 1839-1843.

The present law requires filling the vacancy at the first state election held more than 60 days after the vacancy. Gen.Stat.Ann. § 9-211 (1967). State elections are held every even year. Gen. Stat.Ann. § 9-1 (1967).

Delaware first provided for a special election if the vacancy occurred more than one year before the next general election. Rev. Code § 1890 (1915).

The present statute provides for the vacancy to be filled at the next biennial general election. Code Ann. tit. 15, § 7321 (1953); Const. Art. V, § 1.

Florida first provided for filling the vacancy at the next general election, which was held every even year. Laws 1913, ch. 6471, pp. 277, 278; Const. Art. XVIII, § 9, F.S.A.

The present statute is identical. Stat. Ann. §§ 100.161, 100.031 (1960).

Georgia first required vacancies to be filled at the "next election * * * for the Members of Congress." Acts 1913, No. 168, pp. 135, 136.

The current statute is identical. Code Ann. § 34-2403 (1962).

Hawaii has always required filling the vacancy at the first general election preceded by primary time plus sixty days. Laws 1961, ch. 123, § 1; Rev. Laws 1955, § 11-1.5 (Supp. 1965). There is a general election every even year. Const. Art. II, § 5. Primaries are held in October. Rev. Laws 1955, § 11-92.

Idaho first required filling the vacancy at the first general election more than 30 days after the vacancy. Laws 1917, ch. 27, pp. 68-69. General elections were held every even year. Compiled Stat. tit. 4, § 491 (1919).

The present statute is identical. Code § 59-910; Code § 34-201 (1947).

Illinois first required filling the vacancy at the "next election of representatives in Congress." Laws 1913, S.B. No. 372, pp. 307, 308.

The present statute is identical. Ann. Stat. ch. 46, § 25-8 (Smith-Hurd 1965).

Indiana first required filling the vacancy at the "next regular election of state officers," which apparently took place every even year. Acts 1915, ch. 4, pp. 13-14; Laws 1881, ch. 47, § 2.

The present statute is identical. Stat.Ann. §§ 29-4002, 29-4801 (Burns 1949).

Iowa first required filling the vacancy at the "next succeeding general election." Acts 1917, ch. 401, p. 430. General elections were held biennially. Compiled Code § 343 (1919).

The present statute requires that the vacancy be filled at the "next regular election at which such vacancy can be filled." Code Ann. § 69.11 (1949). Regular state elections are held biennially. See Code Ann. § 39.1 (1949); Const. art. 12, § 16.

Kansas first provided for filling a vacancy at the next election to the House of Representatives. Laws 1927, ch. 204, p. 258.

The present statute is identical. Stat. Ann. § 25-318 (1964).

Kentucky first provided for filling vacancies at the next Congressional election. Acts 1914, ch. 25, pp. 98, 99.

The present statute is identical. Rev. Stat. § 63.200 (1959).

Louisiana first required the governor to issue a writ within ten days of the occurrence of the vacancy, the election to be held within 90 days thereafter. Acts 1914, No. 241, pp. 471, 472.

The present statute is identical. Stat. Ann. §§ 18:1413; 18:1414 (1950).

Maine first required an election before the next session of Congress, or "forthwith" if Congress was in session. Act 1915, ch. 55, pp. 35-36.

The present requirement is for the vacancy to be filled at the first general election preceded at least by the primary plus sixty days. Rev.Stat.Ann. tit. 21, § 1531 (1964). There is a state election every two years. Rev.Stat.Ann. tit. 21, § 1, subd. 14 (1964). The primary is held the third Monday in June. Rev. Stat. Ann. tit. 21, § 448 (1965).

Maryland first provided for the vacancy to be filled in the next general election for the state assembly or for members of Congress. Laws 1914, ch. 761. In those days members of the general assembly were elected every odd year. Const. Art. III, § 7.

The present statute uses the formula next "general congressional election." Code Ann. 1967, art. 33, § 22-1 (Supp. 1967); this section provides that the candidates for the vacancy must be selected at the primary preceding this election. Maryland holds its primary in September. Code Ann. art. 33, § 5-2 (Supp. 1967).

Massachusetts first required the governor to issue a precept to hold an election "on the day appointed therein." Stat. 1913, ch. 835, pt. iv, § 336, p. 1059.

The present requirement is for the vacancy to be filled at the first biennial election whose primary falls more than 70 days after occurrence of the vacancy. Gen. Laws Ann. ch. 54, § 139 (1964). Massachusetts holds its primary on the seventh Tuesday preceding the election. Gen. Laws Ann. ch. 53, § 28 (1964).

Michigan first required the vacancy to be filled at the first general election more than 120 days after the occurrence of the vacancy. Pub. Acts 1915, No. 156, pp. 261, 262. There was a general election every even year. Pub. Acts 1913, No. 56.

The current provisions are identical. Compiled Laws Ann. §§ 168.105; 168.3 (1967).

Minnesota first provided for the vacancy to be filled at the next general election, which took place every two years. Laws 1913, ch. 520, § 8, pp. 756-758; Gen.Stat. 1913, ch. 6, § 298.

The present requirement is for the vacancy to be filled at the next biennial state election whose primary falls at least 60 days after occurrence of the vacancy. Stat.Ann § 203.56 (1962). The primary is held in September. Stat.Ann. § 202.02 (1962).

Mississippi first required a special election within 90 days unless there was a general election the same year, or unless there was less than one year left in the term. Laws 1914, ch. 148, § 3, pp. 192, 193.

The current statute is identical. Code Ann. §§ 3308, 3309 (1956).

Missouri now provides, and has always provided, for executive appointment "until a successor shall have been duly elected and qualified according to law." Ann. Stat. § 105.040 (1966); Laws 1915, S.B. 351, p. 280.

Montana first required a vacancy to be filled at the next general election, which was held every even year. Laws 1915, ch. 126, pp. 281, 282; Rev. Code ch. 44, § 531 (1921).

The current statute is identical. Rev. Code §§ 23-2201, 23-2101 (1967).

Nebraska first required the vacancy to be filled at the first election for state officers more than 40 days after it occurred, and held such elections in even years. Laws 1917, ch. 39, pp. 117, 118; Laws 1913, ch. 149.

The present statute is identical. Rev. Stat. §§ 32-1042, 32-105 (1960).

Nevada first required vacancies to be filled at the next general election, which was held every two years. Laws 1915, ch. 65 pp. 83-84; Acts 1873, ch. 121.

The present statute is identical. Rev. Stat. § 304.030 (1967).

New Hampshire first provided for the vacancy to be filled at the next general election, which was held every even year. Laws 1915, ch. 29, p. 32; Laws 1909, ch. 153.1.

The present statute is identical. Rev. Stat.Ann. § 63.3 (1955).

New Jersey first required the vacancy to be filled at the next general election which was more than 30 days after the occurrence of the vacancy, but the governor had discretion to call a special election earlier. There was a general election every year. Laws 1920, ch. 349.

The present statutes are identical. Stat.Ann. §§ 19:3-26, 19:1-1 (1964).

New Mexico first required the vacancy to be filled at the first general election at least thirty days after the occurrence of the vacancy. Laws 1915, ch. 27. General elections were held every even year. Const. Art. XX, § 6.

The present statutes are identical. Gen.Stat.Ann. § 3-10-19 (1954).

New York first provided that the vacancy be filled at the first annual general election held 30 or more days after the creation of the vacancy. Laws 1913, ch. 822.

The current law provides that the vacancy be filled in the first even-numbered year in which 60 days or more intervene between the creation of the vacancy and the June primary. Election Law §§ 296 (1964), 191(1)(a) (Supp. 1968).

North Carolina first required the election to be held at the first general election more than 30 days after the vacancy. Laws 1913, ch. 114, p. 206. These elections were held every even year. Laws 1901, ch. 18, § 3.

The present statute requires the vacancy to be filled at the next election for members of the general assembly held more than 30 days after the vacancy occurs. The general assembly is elected in even-numbered years. Gen.Stat. § 163-12.1 (Supp. 1967).

North Dakota first provided for the vacancy to be filled "at the next State wide election whether June primary or general election." Laws 1927, ch. 138, pp. 175-76. In every even year there was a primary in June and a general election in November. Laws 1892, H.B. No. 1, § 1.

At present the requirement is for filling of vacancy at the next state-wide election. Century Code Ann. § 16-07-07 (1960). There is still an election in every even-numbered year. Century Code Ann. § 16-06-01 (1960).

Ohio first required the vacancy to be filled at the next state election more than 180 days after its occurrence. Laws 1914, H.B. No. 3, p. 8. These elections were held in even numbered years. Laws 1913, p. 23.

The present statutes are essentially similar. Rev. Code Ann. §§ 3521.02, 3501.01(C) (Baldwin 1968).

Oklahoma first required the vacancy to be filled at the next primary and general election. Laws 1915, ch. 49, pp. 69-70. These elections were held every two years. Laws 1907-8, S.B. No. 23.

This statute was repealed by Laws 1965, ch. 116, § 4.

Oregon first provided that the governor's appointee shall serve until a United States Senator is regularly elected and qualified. Code § 236.130; Laws 1915, ch. 48, p. 59.

Today the vacancy is to be filled at the next general election held more than 20 days after the vacancy occurs. Const. art. V, § 16 (eff. 1926). General elections are held in even-numbered years. Rev.Stat. § 250.010 (1963).

Pennsylvania first provided for filling the vacancy at the first general election whose primary occurred more than 60 days after the vacancy. Laws 1913, No. 454. There was a general election every even year. Const. Art. VIII, § 2, P.S.

The present requirement is for the vacancy to be filled "at the next general or municipal election, occurring at least ninety (90) days after the happening of such vacancy." Stat.Ann. tit. 25, § 2776. There is a general election every even-numbered year and a municipal election every odd-numbered year. Stat.Ann. tit. 25, §§ 2751, 2752.

Rhode Island first required a special election "at as early a date * * * as will admit of compliance with the provisions of law in relation to such elections". Laws 1914, ch. 1048, § 6.

The present statutes provide for filling the seat at the first general election at least 70 days after the vacancy, and for holding general elections in even-numbered years. Gen. Laws §§ 17-4-9, 17-1-2(b) (1967 Supp.)

South Carolina first provided for a special election within 90 days. Laws 1914, ch. 337.

The present statutes provide for general elections in even-numbered years, and require any vacancy to be filled at the first general election more than 100 days after the vacancy. Code Ann. §§ 23-552, 23-391 (1962).

South Dakota first provided for filling vacancies at the "next general election," and required these to be held every even-numbered year. Laws 1915, ch. 182; Const. Art. VII, § 4.

The present provision is for filling vacancies at the next general election which is preceded by sufficient time to allow compliance with the regular nominating procedures, which include a primary. Code § 16.0602 (1939). General elections are still held every even-numbered year. Code § 16-0601 (1939). The primary is held the first Tuesday in June. § 16.0202 (Supp. 1960).

Tennessee first required the vacancy to be filled at the "next regular biennial election." Acts 1913, ch. 8, § 3.

The current statute is identical. Code Ann. § 2-608 (1955).

Texas first required a special election within 90 days unless the vacancy occurred within eight months of a general election. Acts 1913, ch. 39.

The current statute is essentially similar. Stat.Ann.Election Code, art. 12.02 (1967), V.A.T.S.

Utah first required a choice at the "next regular election to be held in the State of Utah for the Federal House of Representatives." Laws 1915, ch. 48.

The present requirement is for the choice to be made at the next general election, which must be held in an even-numbered year. Code Ann. §§ 20-1-6, 20-1-1 (1953).

Vermont first required the vacancy to be filled at the next general election, which took place every even-numbered year. Acts 1915, No. 7; Const. Arts. 35,36.

The present statute requires the governor to call a special election, but also provides that if the vacancy occurs in a general election year before the general election, it shall be filled then. Stat.Ann. tit. 17, § 1501 (1959).

Virginia has always provided for filling vacancies at the next "November election" and for holding these elections annually. Code §§ 24-2, 24-136 (1964); Laws 1914, ch. 150; Laws 1906, ch., 28.

Washington first provided only that "the Governor shall issue a writ of election to fill such vacancy, which writ shall fix the time for such election not less than twenty-five days after the issuance thereof." Laws 1915, ch. 60, p. 232. We classify this statute as requiring a special election within one year.

The present statutes require the vacancy to be filled at the next state general election, which is held every even-numbered year. Rev. Code Ann. § 29.68.070 (1965); Const. Art. VI, § 8.

West Virginia first provided for filling the vacancy at the next general election, and for holding those elections every year. Laws 1921 ch. 101, § 1; Laws 1891, ch. 89.

Present statutes allow appointment for the balance of the term if that is less than thirty months, and otherwise until the next general election, which is held in even-numbered years. Code §§ 3-10-3, 3-1-31 (Supp. 1968).

Wisconsin first provided for the vacancy to be filled at the next general election if the governor did not call a special election before then. Laws 1913, ch. 634, § 94k. General elections were held every two years. Const. Art. VI, § 6.

The current statutes require the vacancy to be filled in the next biennial general election year in which the vacancy occurs at least 60 days before the July primary. Code § 17.18 (Supp. 1968).

Wyoming first provided for filling the vacancy at the next general election, which was held in even years. Laws 1913, ch. 91, § 1; Const. Art. VI, § 18.

Current law provides for filling the vacancy at the first general election whose primary occurs at least 40 days after the vacancy. Stat. § 22-118.188 (Supp. 1967). General elections are held in even-numbered years. Stat. § 22-118.3 (Supp. 1967). Primaries are held in August. Stat. § 22-118.15 (Supp. 1967).

DISSENTING OPINION