JOHN W. SEARS & others vs. SECRETARY OF THE COMMONWEALTH (and a companion case [Note 1]).

WILKINS, J. The plaintiffs in each of these cases [Note 2] raise substantially the same issues challenging various aspects of St. 1975, c. 600, which made changes in the procedures by which presidential primaries are to be conducted in the Commonwealth.

The plaintiffs contest the constitutionality of Section 13 of c. 600 which amends G. L. c. 53, Section 70B, to change the method by which delegates to national conventions of political parties are chosen. Under Section 70B, as amended, delegates to national conventions of political parties at which presidential candidates are to be nominated are to be selected pursuant to a system adopted by the party's State committee, but the system may not "include the

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placing of the names of delegates on the presidential primary ballot." G. L. c. 53, Section 70B, as appearing in St. 1975, c. 600, Section 13. Thus the previous system by which national convention delegates were elected at presidential primaries has been abandoned. Other changes effected by c. 600 concerning the method of selection and the voting of national convention delegates are challenged by the plaintiffs on constitutional grounds.

In addition, the plaintiffs argue specifically that the procedures set forth in c. 600 for the selection of State, ward, and town committee members do not apply to the 1976 presidential primary. They contend generally that c. 600, which was enacted on September 11, 1975, and purportedly made effective by an emergency declaration issued by the Governor on October 27, 1975, should be construed to be applicable first with respect to the 1980 presidential primary. The plaintiffs in the Sears case also argue that the application of c. 600 to the 1976 presidential primary denies them constitutional rights.

Each of these actions for declaratory relief was reserved and reported to the Appeals Court without decision and transferred here on joint application for direct appellate review. The plaintiffs in each case are persons asserting an interest in the application and operation of certain portions of c. 600. [Note 3] The Secretary of the Commonwealth

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is a defendant in each case. In the Levin case, other defendants were named. [Note 4] Although the Levin complaint raised objections to the system for selection of national convention delegates adopted (but not yet filed) by the Democratic State Committee, no argument has been advanced to us concerning these objections.

We will consider first the plaintiffs' various constitutional challenges to the new statutory provisions concerning the selection of delegates to national political conventions, and then we will consider specific challenges to the application of the changes made by c. 600 to the 1976 presidential primary.

Challenges to the Delegate Selection System.

The plaintiffs attack the constitutionality of those provisions of c. 600 which deal with the method by which delegates to national party conventions are to be

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selected. After analyzing the limits placed on a State's regulation of the selection of such delegates by Cousins v. Wigoda, 419 U.S. 477 (1975), we will discuss the extent of any Federal or State constitutional requirements concerning delegate selection systems and then will consider the plaintiffs' specific constitutional challenges to c. 600. Our conclusion is that on all issues which present an "actual controversy" (see G. L. c. 231A, Section 1) c. 600 meets constitutional requirements and that it would be premature to deal with hypothetical questions concerning the legality of delegate selection systems. No such system has yet been filed. [Note 5]

a. The qualifications of delegates to a national party convention are left largely to the national party's convention rules, and, under the Federal Constitution, States may not impose contrary requirements in the absence of a substantial State interest. Cousins v. Wigoda, 419 U.S. 477 (1975). The Cousins case, which concerned a dispute over the seating of delegates from Illinois to the 1976 Democratic national convention, held that State law does not have primacy over a national political party's rules in the determination of the qualifications and eligibility of delegates to a party's national convention. Id. at 483. National political parties have "a constitutionally protected right of political association," and a State's interference with that right of association may be justified only if the State's interest is compelling. Id. at 487-489. "The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates." Id. at 489-490. The court in the Cousins case said that the asserted

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State interest in protecting the integrity of its electoral process was not compelling in the context of the selection of delegates to the national party convention and concluded that the party guidelines for the selection of delegates prevailed over any inconsistent practices pursuant to State law. Id. at 491.

While the Cousins case makes clear the limited authority of the States in mandating delegate selection procedures and practices, we are not presented with a clash between statutory delegate selection requirements and national party rules. In the cases now before this court, we are not confronted with a conflict between State law and the rules of either national party. Neither national party mandates the election of national convention delegates at a party primary. Each authorizes the selection of such delegates according to a system adopted by a State committee. The Cousins opinion aids in describing the constitutional context in which the issues argued to us arise, but it does not provide a direct answer to any of them.

b. Neither the Constitution of the United States nor the Constitution of the Commonwealth requires the direct election of delegates to a national party convention. Each group of plaintiffs contends that the elimination of direct election of delegates denies them (a) effective participation in the nomination process and (b) their constitutional right to equal protection of the laws.

Granting that political party nominating processes are an important part of the procedure by which the ultimate office holder is chosen (see Newberry v. United States, 256 U.S. 232, 286 [1921] [Pitney, J., concurring in part]), we are not aware of any authority in support of the proposition that each voter has a constitutional right to vote for national convention delegates. See Cousins v. Wigoda, supra, 483 n.4. [Note 6] Of course, neither the Federal

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nor the State Constitution alludes to presidential nominating processes or to the right of a voter to express his views on possible candidates or delegates to a party convention. Many States do not select their delegates to national party conventions by direct election. [Note 7] The holding in the Cousins case had the effect of permitting a group of delegates who were not elected by direct vote to take the place of a group which was elected, but the Cousins case did not deal directly with the question of a citizen's right to vote for delegates to a national party convention. In this Commonwealth, we have selected national convention delegates since 1912 by direct vote in primaries, but we have not always done so. [Note 8]

Although arguments against a change from direct election of delegates may be advanced forcefully, as the plaintiffs have done, these arguments bear on the merits of the legislative judgment in adopting c. 600 and do not rise to an effective constitutional challenge. Provisions of the Constitution of the Commonwealth protecting a citizen's precious personal right to vote for his elected representatives (Attorney Gen. v. Suffolk County Apportionment Comm'rs, 224 Mass. 598, 604 [1916]) have not been applied to require the selection at primaries of candidates for election to public office or the election of delegates to national party conventions. See Opinion of the Justices, 359 Mass. 775, 777 (1971). A member of a committee of a political party is not a public officer (see

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Opinion of the Justices, 347 Mass. 797, 799-800 [1964]); Attorney Gen. v. Drohan, 169 Mass. 534, 536 [1897]), nor is a delegate to a national political party convention.

The plaintiffs' equal protection of the laws argument is that c. 600 discriminates against independents, "disfavored" voters, and "splinter groups." They argue that the selection of delegates pursuant to plans adopted by the central party organizations will favor party regulars and will dilute the influence of persons such as the plaintiffs. Of course, until those plans are adopted and filed, one cannot be certain that the plaintiffs' fears will be fulfilled. In any event, the concept of equal protection of the laws does not compel the selection of convention delegates so that every point of view is represented. Our republican form of government may involve the selection of representatives by a majority, or sometimes a plurality, of the votes cast and can often result in the underrepresentation of various ideologies. The statutory pattern does not deny the plaintiffs the opportunity to influence (a) the selection of State committee members, (b) the formulation of the system for delegate selection, or (c) the selection of persons as delegates pursuant to that system. We see no invidious discrimination against the plaintiffs. Cf. American Party of Tex. v. White, 415 U.S. 767, 781 (1974); Walgren v. Selectmen of Amherst, 373 F. Supp. 624 (D. Mass. 1974).

c. There is no constitutional requirement that the votes of party convention delegates reflect the preference or preferences expressed by the voters at a presidential primary. The plaintiffs object that there is no assurance that the presidential preference or preferences expressed by the voters will be honored, even for one ballot. [Note 9] The operation of a delegate selection system under c. 600 may

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result in greater adherence by delegates to preferences expressed in primaries than existed under former law. However that may be, there is no due process or other constitutional requirement that a delegate to a national convention adhere to the results of a preference vote expressed in the presidential primary. Relief from the threat of delegate unresponsiveness might come from changes in national party rules, adoption of a responsive State party delegate selection plan, national or State legislation within constitutional limits, or constitutional amendment. It cannot be found now in the Federal or State Constitutions.

d. Statutory authorization of the State committee of a political party to determine the system by which delegates to a national convention will be selected does not involve, as the plaintiffs argue, the unlawful delegation of a legislative function. The selection of delegates to a national party convention, of course, is not a legislative function. If the Legislature were to attempt to choose convention delegates, it would interfere unconstitutionally with the political party's right of free association.

Although the Legislature may not select delegates to a national political convention, it has the right to prescribe procedures to be followed in the selection of delegates (see Opinion of the Justices, 315 Mass. 761, 765-766 [1944]), provided that it does not intrude unconstitutionally on the rights of association of the political parties. We see no violation, however, of any constitutional principle by the way in which Section 70B leaves to State committees the right to decide how national convention delegates will be chosen, requires that the system "be set forth in written rules and procedures covering all aspects of the delegate selection process," and directs that a copy of the rules and procedures be filed with the State Secretary.

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G. L. c. 53, Section 70B, as appearing in St. 1975, c. 600, Section 13.

The formulation of a delegate selection system is subject to various standards under Section 70B. Thus, Section 70B does not present a standardless delegation of a legislative function. It is implicit that the delegate selection system adopted by a State committee must comply with lawful requirements of the national party. The system may be subjected to judicial scrutiny on a claim that its operation violates the constitutional rights of a particular person or class of persons. See Terry v. Adams, 345 U.S. 461 (1953) (racial discrimination); Ripon Soc'y, Inc. v. National Republican Party, 525 F.2d 567 (D.C. Cir. 1975). In addition, Section 70B contains guides and limitations concerning the delegate selection system. The system must "not include the placing of the names of delegates on the presidential primary ballot." There must be at least two district delegates and alternate district delegates from each congressional district. The distribution of delegates under the system must reflect "the preference expressed by the voters on the presidential preference portion of the ballot at the presidential primary." G. L. c. 53, Section 70B. Assuming that the last quoted language has some meaning (a point we discuss subsequently), it is unclear what greater direction the plaintiffs believe the Legislature had to give to State committees.

Without deciding that any statutory guidelines are constitutionally required in State legislation directing a State political committee to develop, file, and follow a delegate selection system, we are confident that Section 70B does not involve an unlawful delegation of legislative authority. Legislation which acknowledges the State's secondary role in the delegate selection process, by not pressing specified, detailed requirements on a State committee, is constitutionally acceptable. [Note 10]

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e. The plaintiffs argue further that the statutory direction that "the distribution of delegates . . . shall reflect the preference expressed by the voters on the presidential preference portion of the ballot at the presidential primary" is so vague as to make Section 70B unconstitutional. The quoted language is hardly precise. Argument can be made that it authorizes both a "winner takes all" result and a system which allocates delegates among two or more presidential candidates in proportion to votes received. The word "preference" in the singular supports the former view, while the words "distribution of delegates" suggest the latter. Clearly, however, the system adopted by a State committee must be designed to take into account the results of the presidential preference portion of the ballot at the presidential primary. Although, at this time, we do not and cannot pass on any system which may be filed by a State committee, the standard does not render the statute invalid on its face. The fact that the Legislature could have made the challenged language more clear "does not mean that the statute which it in fact drafted is unconstitutionally vague." United States v. Powell, 423 U.S. 87, 94 (1975). Because no specific statutory standard linking delegate selection with presidential preference voting in the primary is required constitutionally, a broad construction of the standard in Section 70B might best avoid a charge of unconstitutional vagueness. In any event, the system selected will have to involve some identification of delegates with the presidential preference expressed at the primary.

The Application of c. 600 to the 1976 Presidential Primary.

The plaintiffs argue that the changes made by c. 600 do not apply to the 1976 presidential primary as a matter

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of statutory construction. The plaintiffs in the Sears case contend further that the immediate application of the provisions of c. 600 would deny them due process of law. We conclude that the Legislature intended that c. 600 affect the 1976 presidential primary and the events preceding it and that there is no constitutional barrier to its doing so. For an understanding of the plaintiffs' arguments, we must describe certain changes made by c. 600.

Chapter 600 was enacted on September 11, 1975, without an emergency preamble, and in the normal course would have become effective ninety days later. See Opinion of the Justices, 368 Mass. 889, 891 (1975). From the point of view of most citizens of the Commonwealth, the most significant change was to move the date of the presidential primary from the last Tuesday in April to early March (the first Tuesday after the first Monday in March). G.L. c. 53, Section 28, as amended through St. 1975, c. 600, Section 8. As would be expected, the dates for various necessary preliminary steps were adjusted to reflect the earlier primary date. However, the adjustments in some instances established deadlines which were prior to the effective date of c. 600. Notice of the number of ward and town committee members to be elected had to be given on or before the third Tuesday in October. G. L. c. 52, Section 9, as amended through St. 1975, c. 600, Section 6. Nomination papers for candidates for election to State, ward, and town committees had to be filed on or before the third Tuesday in November. G. L. c. 53, Section 48, as appearing in St. 1975, c. 600, Section 12. In addition, assuming c. 600 was intended to affect the 1976 presidential primary, delegate selection plans had to be filed on or before October 1, twenty days after the enactment of c. 600. G. L. c. 53, Section 70B, as appearing in St. 1975, c. 600, Section 13.

a. Because the date on which c. 600 became operative is important in passing on other arguments of the plaintiffs, we turn first to the question whether the Governor's

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letter of October 27, 1975, declaring c. 600 to be effective immediately as an emergency measure, was sufficient to achieve its avowed purpose. On that same day, the Justices of this court advised the Governor that a gubernatorial emergency declaration filed with the State secretary before the ninetieth day after enactment of a bill had the effect of bringing the act into effect on the filing of the declaration. Opinion of the Justices, 368 Mass. 889 (1975). None of the plaintiffs has asked this court to reconsider and reject the opinion expressed in the Opinion of the Justices. They do argue, however, that the letter which purported to put c. 600 into immediate operation was ineffective because it failed to recite the facts showing the emergency, as required by art. 48, The Referendum II, of the Amendments to the Constitution of the Commonwealth.

The Governor's letter declaring that c. 600 should take effect forthwith complied with constitutional requirements and, therefore, had its intended effect. That letter recites that an emergency exists because otherwise there will be (1) a delay in "the proper filing of a copy of the rules and procedures adopted by the state committee covering all aspects of the delegate selection process"; (2) a delay in the proper filing of notice of the number of committee members to be elected; (3) a delay in the filing of nomination papers of candidates for State, ward, and town committees; and (4) "public confusion and inconvenience by further reducing the time available for complying with the requirements of the act prior to the primary." We believe that at least the first and third of these statements contain sufficient facts to support the declaration, although they are conclusions of law on the effect of the emergency declaration. As we indicate subsequently, these conclusions of law are substantially correct and, for that reason, are "facts" for the purposes of determining compliance with the constitutional mandate that the Governor's statement recite "the facts constituting the emergency." These facts are sufficient to

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support the Governor's conclusion because from them one reasonably might find that an emergency existed. Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 197-198 (1938). See Molesworth v. Secretary of the Commonwealth, 347 Mass. 47 (1964); Russell v. Treasurer & Receiver Gen., 331 Mass. 501, 503-504 (1954). [Note 11]

b. We have no doubt that the Legislature intended c. 600 to govern the operation of the presidential primary in 1976 and the selection of State, ward, and town committee members in 1976. Certain amendments made by c. 600 refer to the time by which certain organizational meetings should occur in the case of committee members elected in 1976. See St. 1975, c. 600, Sections 3, 4, and 5. These references, which grant exceptions to time limits otherwise imposed, would be unnecessary if the 1976 presidential primary were to be held in late April pursuant to the statutory schedule in effect prior to c. 600. If there were any question whether the Legislature intended c. 600 to apply to the 1976 presidential primary, we might turn to the State secretary's contemporaneous interpretation of its intent, the Governor's understanding as shown by his emergency letter, and the legislative history of the development of c. 600, which shows that c. 600 was intended to apply to the 1976 presidential primary and events preceding it.

c. The plaintiffs do not argue that the general intent of the Legislature was to make the provisions of c. 600 apply for the first time to the 1980 presidential primary. They argue, however, that the Legislature failed to achieve its purpose of making c. 600 applicable to the

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1976 presidential primary because it passed the act so late that some statutory deadlines had expired before the act was effective and that, therefore, the act cannot possibly be implemented during 1975 and 1976. We turn then to an analysis of the consequences of the fact that two statutory deadlines for the completion of certain statutory requirements had expired by October 27.

The passing of the October 1 deadline for the filing of rules and procedures for the selection of delegates does not prevent c. 600 from regulating the selection of delegates to the 1976 national conventions. We would be slow to conclude that a State committee could frustrate the purpose of c. 600 by declining to file its delegate selection plan seasonably, particularly where the statute provides no alternative in the event such a plan is not filed on time. We see no insuperable difficulty in the late filing of a party's delegate selection plan for its 1976 national convention. There can be only one set of rules for each party. Of course, the earlier the rules are filed, the greater the opportunity for dissemination of their terms and for the timely conclusion of any court challenge. As to the 1976 presidential primary, however, we believe the October 1 deadline was unrealistic and must be treated as directory in order to fulfil the legislative intent that c. 600 apply to 1976. See Liberty Mut. Ins. Co. v. Acting Comm'r of Ins., 265 Mass. 23, 29 (1928).

The record does not disclose any specific harm to the individual plaintiffs in these cases resulting from the delay in the filing of delegate selection plans. A prompt filing of the delegate selection rules would reduce uncertainties and may expedite the resolution of any further litigation. Remedial legislation authorizing the filing of delegate selection rules applicable to the 1976 national conventions by a specific date might be helpful.

The second statutory deadline which had passed by October 27 was the date for each city or town committee to notify the State secretary of the number of local committee members to be elected at the primary. G. L.

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c. 52, Section 9, as amended through St. 1975, c. 600, Section 6. The notice must be given on or before the third Tuesday in October, which was October 21 this year. The determination of the number of persons to serve on a local committee is necessary in order to permit persons to organize slates of candidates for whom nomination papers may be certified and filed.

We believe that c. 600 must be implemented for the 1976 presidential primary despite the earlier expiration of the stated deadline for notice to the State secretary of the number to serve on local committees. Any difficulties do not appear to be substantial. None of the plaintiffs shows that he or she has been prejudiced with respect to his or her candidacy for a local committee. In September, the State secretary notified local committee chairmen that the Governor might declare c. 600 to be an emergency law and that the new deadline of October 21 might become significant. Although the statements of agreed facts do not disclose the degree of compliance with the notice requirement on October 27, when c. 600 became effective, a signed, but unnotarized, "affidavit" of the State secretary, which appears in the record in the Sears case indicates that as of November 3 a "substantial majority of the city and town committees of both political parties [had] given notice of the number of members to be elected to ward and town committees as provided by [G. L. c. 52, Section 9]." [Note 12] From his "affidavit" the State secretary appears to be planning to recognize notices given to him after October 27. He does not seem to be applying automatically that provision in G. L.

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c. 52, Section 9, which fixes the number of local committee members at not more than ten, if timely notice is not received from a local committee. We believe that in these circumstances the State secretary has discretion to grant a reasonable extension of the notification date, at least where no candidate for a local committee has been prejudiced by reliance on the statutory limit of ten which applies in the absence of timely notice.

At this point in our discussion of the application of changes made by c. 600 to the 1976 presidential primary we have considered and disposed of all the arguments advanced in the Levin case.

The plaintiffs in the Sears case continue their argument, however, saying that the requirement that nomination papers for State, ward, and town committee membership be filed by November 18 is arbitrary, unworkable, and unconstitutional. We disagree.

Any candidate for State, ward, or town committee must obtain signatures on official nomination papers, have them certified by the local registrars of voters at least one week prior to the filing deadline, and file the certified papers with the State secretary. G. L. c. 53, Sections 46, 48, as amended through St. 1975, c. 139, Section 1, and St. 1975, c. 139, Section 2, respectively. Prior to c. 600, the deadlines for presenting papers for certification and for filing with the State secretary were the first and second Tuesdays of February (February 3 and February 10 in 1976). See G. L. c. 53, Sections 46, 48. Section 12 of c. 600, amending G. L. c. 53, Section 48, had the effect of advancing these dates to the second and third Tuesdays of November (November 12 [Note 13] and November 18 in 1975). The Sears plaintiffs contend that there was insufficient time to comply with the nomination process between October 27, when c. 600 became effective, and the statutory deadline.

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The deadline for filing nomination papers for State, ward, and town committees to be elected on March 2, 1976, is not unconstitutional on its face. Persons interested in serving on State and local committees are among the most politically sophisticated of the citizens of the Commonwealth. Chapter 600 was enacted in September, and nomination papers were available in the middle of September when St. 1975, c. 352, became effective. The possibility of an early effective date by order of the Governor was known in September. Only five valid signatures are needed for nomination to a local political committee and fifty for nomination to the State committee. G. L. c. 53, Section 70D, as amended by St. 1975, c. 600, Section 15. The Sears plaintiffs have failed to prove that the deadlines for certification and filing of nomination papers are so arbitrary and unreasonable as to constitute a denial of due process of law.

From information made available at oral argument we know that certain nomination papers were filed late with the State secretary, and we suspect that others are being held by local authorities pursuant to an interlocutory order entered by a single justice of this court. We decline to direct that these papers be recognized as legally effective. However, we believe it is within the power and discretion of the State secretary to recognize such papers where (a) the number of committee members shown on the papers is consistent with the number to be elected and (b) there is no competing slate of candidates. Where the circumstances are otherwise, committee members may have to be elected by writing in the appropriate information on the primary ballot. If there is a failure to elect, there are statutory provisions which indicate how committee members may be selected. See, as to ward and town committee members, G. L. c. 52, Section 4, as amended by St. 1975, c. 600, Section 5, and G. L. c. 53, Section 70G, as appearing in St. 1975, c. 600, Section 18, and, as to State committee members, G. L. c. 52, Section 1, as amended by St. 1975, c. 600, Sections 2, 3.

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Conclusion.

Judgments should be entered in each action declaring that (1) the direct election of delegates to a national convention of a political party is not constitutionally required; (2) there is no constitutional obligation that a delegate to a convention of a national political party vote at any time in response to the vote on the presidential preference portion of the primary ballot; (3) the authority to adopt rules and procedures governing the selection of delegates to a convention of a national party constitutionally may be delegated to the State committee of that party, as provided in G. L. c. 53, Section 70B; and (4) the provisions of G. L. c. 53, Section 70B, requiring that the distribution of delegates under the system of selection reflect the vote on the presidential preference portion of the primary ballot are not unconstitutionally vague. The judgments should further declare that (5) the provisions of c. 600 are applicable to the 1976 presidential primary and the events preceding it; (6) St. 1975, c. 600, became effective on October 27, 1975; (7) rules and procedures covering all aspects of the delegate selection process may be filed subsequent to October 1 and, if now filed promptly, will be effective; (8) a notice to the State secretary from a ward or town committee of the number of persons to be elected to the committee at the presidential primary was received effectively if filed on or before October 27, 1975, and, in the discretion of the State secretary, may be treated as effectively filed if filed subsequent to that date, provided the rights of any candidate for election who seasonably has filed nomination papers are not significantly prejudiced thereby; and (9) the State secretary need not accept nomination papers filed after November 18, 1975, from a candidate for a State, ward, or town committee, but, in his discretion, he may accept such late filed nomination papers where the

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rights of no other candidate for the same position are significantly prejudiced thereby. [Note 14]

So ordered.