The Ripon Society, Inc. v. National Republican Party the Ripon Society, Inc. v. National Republican Party

However, attorneys fees.63 we award of the Fourth Circuit that agree SOCIETY, INC., et The RIPON holdings

logical extension these al., Appellants, all virtually constitutional claims v. attorneys fees.64 proponent entitle what, any, if limitations We are unsure PARTY REPUBLICAN NATIONAL holdings. We placed these should be et al. satisfied, however, begin INC., SOCIETY, al., analysis is our recent deci et ning point for RIPON Morton, Society v. sion in Wilderness 446, 1026, 495 F.2d cert. U.S.App.D.C. PARTY REPUBLICAN nom., Alyeska Pipeline Serv NATIONAL granted sub al., Appellants. et Society, v. Wilderness Company ice 823, 95 U.S. 74-1337, Nos. 74-1358. the District Court did not (1974). Since of Appeals, Court States United when opinion of this it have the benefit Circuit. of Columbia District since motion and it plaintiffs’ ruled on equitable discretion must exercise May 1975. Reargued en banc fees, any, amount of if deciding upon the Sept. 1975. Decided think the better course granted, to be Certiorari Denied Feb. this issue to the District is to remand See 96 S.Ct. consideration. further Part, Affirmed in Reversed Part With

And Remanded Instructions. Judge

Senior Circuit DANAHER dis- opinion

sented and filed with the

Clerk. BAZELON, Judge Before Chief McGOWAN, TAMM, LEV-

WRIGHT, MacKINNON, ROBINSON,

ENTHAL, WILKEY, Judges. Circuit

ROBB

ORDER

PER CURIAM: Court, banc, by the en

It is ordered judg- the opinions and sponte, that

sua hereby this date are herein

ment filed

vacated, banc, Court, en

Further ordered re- these cases shall be sponte,

sua sitting en banc.

heard the Court Collier, Bradley 63. See City Gates v. 489 F.2d n. 1 School Richmond, Bd. of (5th 1973) cited; (4th Cir. cases 1972), cases cited F.2d 327-31 Cir. rev’d on supra. Compare grounds, note 62 Fowler v. Schwartz other walder, (8th 1974); 145-46 F.2d Cir. litiga success of the Fite, (5th Sosa v. F.2d 121-22 tion be one Cir. factor which limits the award 1974). City See fees. Cousins v. Council of the City Chicago, (7th F.2d 924-25 Cir 1974). . Rehearing

On en banc. Pennoyer, M. Robert New City, York bar of the Court of Appeals York, pro vice, New hac special leave court, with George of Washington, whom Coburn, M. C., D. was on brief, appellants in No. 74-1337 appellees 74-1358. No. I and Erwin N. Gris- C. Cramer William C., with whom D. wold, Washington, subject the appeal The is the dele- C., Becker, Washington, D. L. Benton adopted by the allocation formula gate brief, in No. appellants on the Republican Party for its 1976 National in No. 74-1337. appellees 74-1358 Ripon Society and nine The convention. Julie Noel Gil- S. Cohen Sheldon plaintiffs1 have secured the individual C., filed a brief on D. bert, Washington, the District Court judgment National Com- Democratic behalf of that formula unconstitution- parts urging reversal. curiae as amicus mittee F.Supp. (D.D.C.1974). al. 369 BAZELON, Judge, DAN- Chief the District ruling Before AHER, Judge, plaintiffs’ Circuit Senior made favor. first one McGOWAN,TAMM, WRIGHT, enjoin LEVEN- they sued use of a ROBINSON, MacKINNON, THAL, allocation formula the 1972 similar WILKEY, Judges sit- and Circuit Republican National Convention. Par- ROBB April en banc. ting granted relief was of 1972. tial (D.D.C.1972). F.Supp. 168 That by for court filed Circuit Opinion stayed by Rehn- judgment was Justice Judge McGOWAN. (1972), quist, 409 U.S. by Judge Mac- filed Circuit Opinion the convention was conducted as and KINNON, concurring except with re- Thereafter planned. appeal from standing Ripon Society. spect to the dismissed, the District Court was and the by Judge filed Senior Circuit Opinion present amended to state the complaint DANAHER, concurring in the result. challenge to the 1976 formula. TAMM, by Judge Circuit Opinion filed Judge joins, Circuit ROBB with whom That formula adopted, on a vote the result. concurring in 434, by of 910 to the delegates to the by Judge filed Circuit WIL- Opinion provides 1972 convention. It as follows: KEY, whom Judge Senior Circuit 1,605 delegates, or 72 percent of the to- joins, concurring in result DANAHER tal, are according allocated to the states’ only. college votes, electoral each state to re- Dissenting opinion delegates ceive three per presidential filed Chief elector; delegates, or Judge percent, BAZELON. are “victory awarded as bonuses” to states

McGOWAN, Judge: Circuit voting Republican for the candidate in election, years, presidential time in four the last the third this each For such state to receive challenge confronts from within a number of court additional delegates equal major percent to 60 one of the two of its elec- vote, college toral or percent to the formula fixed it for the of its college-based delegation electoral quadrennial (the allocation of its “proportional victory In bonus”); convention. the earlier in- national stances, 245 dele- gates, percent, of this court or 11 divisions held such are equally divided among the challenges unavailing to be for want states that voted for the last Republican presidential Today, candidate, merit. hereinafter, for reasons set forth each the court en such state to receive five delegates banc reaches (the respect result with to the this basis “uniform victory the same bonus”);2 delegates, appeal. percent, or are actually delegates as awards 4‘/2 2. The formula are the National in this suit The defendants victory presi- in the last for Republican a uniform bonus National Republican however, provides, plaintiffs It also and the dential election. Since both Committee. propor- appellants is to be added to the the number the District defendants here, college percent of electoral clarity’s bonus of refer to them tional vote, sake will we resulting increased to next fractions titles. the former Republican awarded the states for judge granted district relief only level, election successes at state in part. Ruling on cross-motions for Republican gover- such each summary judgment, he forbade the use senator, nor, majority of United victory bonuses, of uniform upheld Representatives which the States state the formula in respects. other succeeding year elects in or a prior F.Supp. at 376. Plaintiffs appealed (this to the 1976 convention bonus will relief; the denial additional defend- part be considered of the “uniform victo- appealed ants have the granting of any bonus”);3 ry delegates, and 30 or 1 per- relief at all. cent, among divided the District of (14), (8), Columbia Puerto Rico Guam II Virgin (4 each).

and the Islands Defendants assert that pre- there are Declaratory injunctive relief was which, liminary if rightly decided, issues ground sought on the formula our preclude reaching the merits. These whole, particular and in as a various concepts, involve the respectively, of features, victory plaintiffs bonus denied sue, standing action, justici- equal protection laws. Plaintiffs ability. part opinion, proposed National address these issues in succession. permitted Committee to fashion a new subject formula4 to the constraints Standing. A. (1) a “substantial” number of dele-

gates according standing be allocated the to Re- requirement many purposes, vote in one or more serves publican recent elec- including that of tions, seeing (2) remaining the to it that delegates prosecuted be claims are ap- to binding portioned on the basis of resolution on population the only or merits vote, college (3) those electoral the with a sufficient District of interest to assure be an Columbia treated for informed and effective pur- presentation. allocation state, (4) a poses as and We would not the wish to rule one way territories or number the delegates receive a of other in this case greater no without satisfying they would be ourselves requirement than what entitled that that to on a had population basis. met.5 been Objection only has been Thus, made not whole number. J.A. most 153a. states sue, plaintiffs standing of to victory but also to the receive will in effect 5 uniform bonus capacity Republican Party of the National votes, may proportional and also receive a bo- be is sued. It claimed that no such greater percent figure than nus the 20 men- formally is constituted under example, qualifying state in text. For a tioned state law, or merely federal and that votes, term is a having college 3 electoral and description collective of the individual state delegation a basic therefore of will receive 7 Republican = pre and territorial Parties. delegates This (60% 6.3), X 3 + extra 4.5 question against cise was resolved delegates, a uniform bonus of 5 effect and a Georgia Party, National Democratic delegates proportional per- bonus or U.S.App.D.C. 1271, 1273, n.2, 447 F.2d cent. denied, cert. (1971), votes awarded on this 3. Bonus basis limit- and we see no for reason a senators, courts, for ed to two the election one for different here. result federal governors, courts, the election and one for the elec- whether not in or the state an “unin delegation Representatives corporated may tion of House association . . be sued percent figures majorities. purpose 50 and in its name for common of enforc successes; ing against right the record based on contains . . it a . substantive ex isting figures for later elections. no under Constitution or laws 17(b). Fed.R.Civ.P. Certainly United States.” Foreseeing plaintiffs’ purpose litigation, this is to enforce what con right. a the 1972 ceive to be substantive convention authorized the constitutional National adopt unincorpo a new We take it that existence an Committee formula should the bearing be rated one contained Rule 30 invalidated. association common Such name Republican Party” adopted prior a new must “National formula be found as a Octo- Court, say fact the District and we ber 1975. See Rule J.A. 153a. cannot assembly, standing the same tives in the individual focus first on We challenge constitutionality of the alleged in the nine is Each of plaintiffs. Carr, scheme. Baker v. apportionment a complaint to be supplementary 186, 204-208, States, Republi United “citizen (1962). The only remaining qualified voter of can, registered whether the claims of malap- question . or of of Columbia District in this case are in fact made Indiana, portionment Illinois, California, Massachu representation whose would by plaintiffs Minnesota, Jersey New New setts, [or] pre- if those claims were to improved fairly that We think York.” vail. plain each assertion as an take being represented, interest an tiff of appears to be at least delegation of his or her There through plaintiff for each claim. It is district, Republi the National such the formula as a whole devi argued We no reason to that see can Convention.6 (in differentiate, popu favor of the less the stand too far purposes ates interest, states) proportionality from to elec between lous requirement, ing representation, pop to total seeking represen college of one toral interest ulation, Republican and to the vote in legislature. or national a state tation so, Halliwell, plaintiffs no doubt elections. If past course is of There individual, Silverman, claiming Vradenburg, White and resi context latter California, York, repre because his New Illinois is diluted his vote dents greater Jersey, respectively, clearly represents number of and New sentative Victory to benefit.7 bonuses in than do other stand representa constituents 6. Plaintiffs’ her state or district. Plaintiff Sasseville in numerous national state been J.A. 125a. Plaintiff publicans.” been a lature. active local Plaintiff official Republican Convention and to the 1968 date for Alderman in official Silverman has been “an Plaintiff Allison has been a “on the executive Committee of the Senate. das was there Republican to, quadrennially that at rection vention.” publican declared “general J.A. National Florida, August Republican record or 149a, 151a. an alternate role Republican campaigns.” Republican precinct captain party positions.” from J.A. 130a. Plaintiff Halliwell has been commonly understood to be a National contributed Sweet the last such J.A. 132a. Plaintiff Behn has been a management” itself “a nationwide National Committee clear error. Convention affidavits reveal that each Representative Rules Party, Republican time to time of J.A. 127e. Plaintiff White has nominee for the California State in a national through judicial Adopted that it is Republican Party delegate 1972; to, Vradenburg Held at Miami We convention it it entrusted to the Re executive and worker Chicago. National Convention. 'J.A. 123a. Plaintiff Resolution, Republican such, commonly know, has held “various to the Minnesota the National [New York] the Indiana convention, from New York “subject Party,” whose that it meets notice, either from has served J.A. 124a. J.A. 128a. and candi- Young Republican of his or plays formally Rule election referred Beach, to di legis- Con and Re- an 19; 7. The States named in text are the brief to this dents. such cal exhibits to the District Court from which A states of which the named the national convention. Gillette, form second, lican gress has served as finance according 76a. Plaintiffs’ brief contradiction, member of the Illinois California See Exhibits A F, New New York idential vote in most toral tion, 39.1% tion State stronger following figures [i]f Jersey figures candidate for Committee although they and cast College the 1976 Formula were Though they sixth, populous of the the District of Columbia. to the 1970 census. Exhibit % 1976 % 1972 % 1970 % 1972 past president Convention Delegates Rule case would have been made had Under court, plaintiffs been 3.0 7.5 6 8 4.5 & J.A. and tenth most Massachusetts vote and 48.6% and an 1972; computed states would be allotted nonvoting delegate Electoral College coordinator for a Vote (at 15) alleges, did not do so in their 8.4 4.8 3.2 7.6 74a, 48.7% . alternate easily to the 1976 Conven- J.A. 133a. Plaintiff 42.4% 75a, 83a, 84a. plaintiffs submitted statisti- for the individual Republican Popula- populous 5.5 9.0 3.5 9.8 used, tion Ripon of the derived: of the Elec- J.A. 134a. are resi- Society, without Republican to Con- popula- Repub- B, Nominee Vote 5.9 8.9 9.8 states Pres- eight first, Plat- J.A. general are said to Republican- violate the cause of constructive the Constitu- so, tion. If there will be publications pro- a clear ism.” Its said to benefit Behn, plaintiff ideas, for fresh resident vide “a forum well-re- Massa- chusetts, the only proposals spirit and a searched of criti- which did not cast its electoral vote within the Party.” for the cism Its 1972 Re- publican nominee.8 Executive Committee To the National authoriz- extent victory opposed bonuses are action “to ensure fair ed this and consti- only for the take, e., form representation i. at Republican uniform tutional and elec- college-based, toral plaintiffs National Conventions.” from California, York, Illinois, New and New Jersey again once have concrete reason Yet the Society claims no harm to complain. Finally, the District of itself,9 Co- nor even to interest to which lumbia and the territories are allegedly particularly it dedicated.10 Certainly over-represented. All plaintiffs other may there be harm to some of its mem than Gillette are states, residents of bers, may a party not ordinarily as thus have a sufficient stake in the mat- others,11 rights sert the Ripon and the ter. Society has not made a strong case for standing being excepted from Ripon this rule. Society It makes It no claim that more doubtful. describes members are uniquely, itself as a organization or even young predominantly, injured.12 “nationwide busi- It ness, professional gives no reason to academic men and believe that those organized to engage women members who are adversely talents affected energies of thinking young rights.13 cannot assert their own people in It judgment standing 8. After the of the District Court and challenge bers” had ICC action as prior appeal, plaintiff apparently to this Behn Policy violative National Environmental changed Act). his residence from Massachusetts to Appellants Br. North Carolina. at 9. Whether g., Jackson, 11. See e. Barrows v. thereby standing or not he forfeited his to seek 97 L.Ed. 1586 ruling victory appellate on the bonus is of Compare Refugee Joint Anti-Fascist Comm. moment, however, appears no since it McGrath, 123, 187, challenge standing the bonuses also be (1951) (Jackson, J., 95 L.Ed. 817 concur- Gillette, by plaintiff claimed resident of the ring) (organization permitted should be to as- supra. District of Columbia. See note 6 Gil- sert members’ interests “where the Govern- plainly object cannot lette whole, to the formula as a lumped ment has all the members’ interests in greatly he claims that since over- organization so that condemnation of one However, represents the District. we think all”). will reach Court in Sierra standing to make the various claims Morton, Club v. 92 judged should be with reference to each claim (1972), espouse seemed to individually. separate A claim is that the Con- principle organization broader that “an whose requires that stitution exactly District be treated injured may represent members are those Appellants as the states are. Br. at 61. proceeding judicial members in a review.” challenge claim should If this succeed and the However, it standing denied the Sierra Club victory fail, bonus should will Gillette challenge Secretary’s grant per- the Interior off, plainly be worse since the District develop mission ground National Forest on the qualifies for no bonus votes. alleged any that the Club had not that Sisters, Society Compare 268 Pierce v. adversely of its members would in fact be af- 571, (1925) 510, 69 L.Ed. 1070 45 S.Ct. U.S. 735, 739, fected. Id. at 92 S.Ct. at 1368. Ar- prohibiting (possibility that statute attendance guably, Ripon Society meets the latter test closing of such private could force schools by joining plaintiffs with individual who clear- standing gave to assert constitu- them schools affected, ly adversely and who are also upbring- parents rights of to direct the tional Society. so, however, members of the Evfen children). ing of distinguishable the Sierra Club remains organization as an “special whose interest” was the Compare Students Chal United States v. protection of the environment. Procedures, Agency Regulatory 412 lenging 2405, 2411, 678-90, 669, Compare 37 93 S.Ct. NAACP v. Alabama ex rel. U.S. Patter 449, 459, (student son, 1163, (1973) 1170, environmental as 357 U.S. 78 254 S.Ct. L.Ed.2d 2 purpose “primary (1958) (NAACP to en [was] whose L.Ed.2d 1488 could sociation assert right its environment mem- to freedom human members’ hance the association since 574 Party, Democratic v. National Georgia short, merely to have an Exec- seems, in prior deci first of our 5—the note “spirit supra whose of criti- utive Committee delegate allocation. Our reason on to the allocation formula sions extends

cism” the action of individu that since delegates. ing for convention selecting their candi parties al state dates, standing require Whether dele indeed their convention and so far relaxed as to be has been ment action, it could not be was state gates, is, this coincidence alone satisfied however, those acted when otherwise question need not decide delegates at the national through their We have concluded case. that in this at 1274-75. We also Id. convention. plaintiffs standing had individual by placing nominee that concluded purpose of the re bring this suit. ballot, the states on convention the presence is to ensure of a quirement narrowing process as a this “adopted controversy, ease or and of jurisdictional proce their election adjunct of necessary sharp adverseness which concrete “that subjected it to constitu dures,” thus of issues.”14 presentation ens the We We Id. at 1275-76. ad scrutiny. tional Ripon Society’s par see how cannot holding in Bode v. Georgia to our hered case in this could lessen the ticipation Party, U.S.App. 146 Democratic National presentation controversy, or blur 1302, (1971), 373, cert. 452 F.2d D.C. issues, the course the litiga or alter denied, 92 S.Ct. 404 U.S. way.15 any If the trial judge tion (1972). question As the now refusing Ripon to strike the So erred ciety time, however, a third to us comes plaintiff for lack of standing, as a clear. much less answer was harmless. error Action. B. State Supreme Court has in the mean Lodge Moose No. 107 v.

As their claim is founded en time decided Irvis, S.Ct. provisions United tirely on States (1972), and Jackson v. Met apply only to the fed L.Ed.2d Constitution Co., Edison U.S. governments, ropolitan essential to eral (1974), taking plaintiffs’ prop case is merits different, narrower, arguably a national view allocation osition “state action” constitutes constitutes than is of what action.”16 We found such action Georgia “state reflected in our decision.17 The require plaint II, it be claimed the Fifth mem- Amendment “[t]o and Article would result in nullification of bers themselves 1. J.A. 58a. The Fifth Section Amendment’s very assertion”). right requires at the moment of its Due Process Clause the federal states, government, provide equal pro like Carr, 186, 204, 14. Baker v. 82 S.Ct. Robinson, tection of the laws. Johnson v. 691, 703, (1962). and n. U.S. (1974); Bolling Sharpe, Ripon 15. There is no indication that the Socie- plaintiffs ty 98 L.Ed. 884 from the individual differs It only applies government, point. to the federal There is no relief to which it how assume, ever, then, private not to would entitled. We citizens. Public it Utili Pollak, 451, 461, support this suit to the same ties Comm’n would extent II, 96 L.Ed. 1068 to lose its formal status of a Article even were procedure plaintiff. 1 details the Section for the election through college. President the electoral Equal rely primarily Pro on the 16. Plaintiffs beyond specific force at all If it has its Fourteenth Amendment. the tection Clause’of commands, it also is confined to the federal man, of the “one provision, the source That government. Reyn legislatures, see rule for state vote” Lodge 533, 1362, the exclusion Sims, 17. In Moose of black 12 84 S.Ct. v. olds guests by private possessing club (1964), applies state to the states. 506 L.Ed.2d 163, Irvis, liquor held not license was to be state action Lodge 92 No. 107 v. Moose subject Equal Rights the Fourteenth 1965, (1972); Amendment’s 627 Civil 32 S.Ct. 18, 3, Clause. In Jackson the Protection termination Cases, 27 L.Ed. 835 3 S.Ct. U.S. 109 by state-regulated public utility supplementary of service com- cited the Also der, Supreme professing Court focused in those “grave each of doubts” as to its propriety.19 the “nexus between Our finding cases on the State of state action action” challenged part of the osten- on the of the Credentials Commit- entity, rather that sibly private specifically than on tee was questioned. To be relationship gen- sure, to the entity’s state in distinguishable O’Brien itself as 351, 95 at S.Ct. 449. See eral. U.S. a case not involving the allocation of 173, 92 also 407 U.S. at S.Ct. 1965. The delegates among the states. Justice “nexus” between states and the dele- at Rehnquist least would apparently not open ques- gate allocation formula this consider persuasive, distinction since tion, since particularly Supreme he exclusively relied on O’Brien when he held, Court has also now stayed in Cousins v. the District Court’s earlier order 477, 541, Wigoda, 419 very U.S. S.Ct. 42 in this case.20 (1975), L.Ed.2d 595 that an individual power

state is without to interfere with plaintiffs’ If prospects for success on procedures selection of a the state action issue have been some- national convention.18 what by dimmed the actions of the Su- Court, preme

Nor can we take much have conceivably comfort from been brightened somewhat the obvious distinctions between these those of the Congress. cases and The Brown, ours. O’Brien Federal Election Cam- paign Act of 1974, Amendments ap- proved (1972), 15, 1974, the Democratic October provide National Party financing an federal sought review of order presidential this court nominating (152 U.S.App.D.C. 563) 469 F.2d conventions.21 The national committees of the delegates a number of disqualified Republican and Demo- cratic Party’s Parties Credentials each Committee be to receive two seated at its 1972 million dollars to defray convention. The Su- convention ex- preme penses.22 presidential The per Court curiana stayed or- primaries, our held subject 4-5, was not to be state action to the stay 19. 409 U.S. at 92 S.Ct. 2718. The Fourteenth days Amendment’s granted Due opening Clause. three Process was before the The Democratic convention. National Par- appeal 18. Cousins was from certiorari, ty’s petition accompanied which Illinois, which courts of had commanded application, stay disposed was not of until seating at the 1972 Democratic National Con- convention, after the at which time the case delegates vention of number Illinois whom was remanded directions to dismiss as party’s Credentials Committee dis- had 409 U.S. at moot. 93 S.Ct. qualified. The United States Court 72. reversed, primarily on First Amendment Ripon State fully Central Comm. v. grounds. We discuss case be- more Inc., Society, carefully 93 S.Ct. ques- reserved low. gave The Court in O’Brien also us a national tion of whether selection question premise reason to our first line and allocation of constituted state reasoning e., Georgia, i. action, justiciable question, elective presented a or was processes of individual state subject principles constitut reapportion- purposes. action for ed state all “White U.S. at ment decisions. 419 483 n. Primary largely Cases” on which we based premise distinguished were in O’Brien as assuming finding that our Even of state ac- in which claims made that in “case[s] [were] Georgia power not on tion in rested jury from arises invidious discrimination based approve disapprove states ing process,” the “narrow- primary single in a on race contest within a merely support on their of its 409 U.S. at 4 State.” n. S.Ct. at 2720. placement outcome of the candidate’s Wigoda, See also Cousins 419 U.S. at 493- ballot, Lodge on the Moose name and Jackson J., (Rehnquist, concurring). pause. rejected give must still us Both cases claims of state based on action the award to 93-443, 21. Pub.L.No. (codified 88 Stat. 1263 benefit, of a state the defendants 2, 5, 18, scattered sections of 47 U.S.C. and Jackson, power license in case of the 1954). Int.Rev.Code of prepared monopo- to assume was a Court ly. 1965; 93-43, IV, See Pub.L.No. 406(a), See 407 U.S. Tit. § codified, 351-52, Stat. U.S. at S.Ct. 449. Int.Rev.Code of 576 an en banc decision of this review many of to those soon elected, constitutionality of upholding will be are to re- court

conventions financing provisions.25 support public in the form of a The ceive federal these matching is thus in a state of of funds raised matter some partial entire running primaries.23 uncertainty. in those candidates government is also to subsi- The federal Because, Supreme as the Court said in general campaigns election dize of O’Brien, the existence of state action is a (poten- to the tune party nominees “highly important ques- difficult twenty million each tially) of dollars for tion,” may it well be very because dif- major party candidate.24 when the question matter of ferent fed- settled, financing eral is and because it case affect conventions, cannot parties’ If the and their outcome of candidates, appeal, we decline to are to be so far decide it. underwritten As below, is government, elaborated clear to federal then us that perhaps its case must fail on plaintiffs’ must share constitutional obliga- merits regard to whether public course the without or not financing Of there tions. action, question may actually put never is state provisions which we expressly reserve.26 The Court will therefore into effect. Valeo, summary recently Buckley F.Supp. enacted See also 401 9008. For § (D.D.C.1975)three-judge court), public financing appeal granted, plans provide state - -, 32, 36, processes, U.S. see Devel- and election nomination Law-Elections, (U.S. 6, 1975) (No. 75-437). opments Harv.L.Rev. U.S.L.W. 3178 Oct. 1111, public financing Such 1265-67 finding 26. Defendants contend that a government state was first decreed in the federal necessary only plaintiffs’ not action 1971, suc not to take effect until the but it was merits, but also 92-178, VIII, cess on the to the existence of See Pub.L.No. Tit. election. jurisdiction. They only 562, codified, federal plausible assert that the 801, Stat. as Int.Rev.Code § jurisdiction basis for such 1954, is 28 9000-13. §§ 1343(3), requirement and that U.S.C. § 93-43, IV, 408(c), Pub.L.No. Tit. § 23. See that section that the suit be one to redress a codified, 1954, 1297, Int.Rev.Code of as Stat. deprivation constitutional made “under color 9031-42. §§ law,” . State cannot be satisfied 93-443, IV, 404(a), adoption

24. Tit. unless the § See Pub.L.No. allocation codified, 1954, short, constituted state Int.Rev.Code of formula they action. as Stat. major par regard question this “state of the two action” The candidates as § They equal jurisdictional sup one. are not sums to exceed without are entitled ties port 1343(3) view. which is also the limit on cam for this When $20 § million been against expenditures paign from whatever source. in suits claiming invoked defendants 93-443, I, state, 101(a), Tit. 88 Stat. § disassociation from See Pub.L.No. courts have codified, 608(c)(1)(B). question § U.S.C. the state action as often considered tirely en conventions, campaigns, in terms whether the Minor defendants’ ac proportionally to their vote in color of subsidized tions were “under to be State See, Pinnix, presidential g., election. See Pub.L.No. law.” e. James v. the last 495 F.2d 206 IV, 93-443, 404(b), 406(a), 1974); (5th Anthony Hospital, Tit. 88 Stat. Ward v. St. §§ Cir. codified, 1973); (10th Chicago Int.Rev.Code of F.2d 671 Cir. Joint 9008(b)(2). Board, 9004(a)(2), Amalgamated Clothing all source of §§ Workers of Co., grants Chicago is to be the Election Presidential America v. Tribune these 435 F.2d 470 Fund, voluntary denied, up (7th 1970), Campaign made contri cert. Cir. 402 U.S. (1971); taxpayers, federal who des butions from S.Ct. Miles, Powe v. payments (2d ignate 1968). dollar of their federal tax 407 F.2d 73 Cir. purpose. See Int.Rev.Code of for the considered, rejected, possi- pro We are to receive §§ basing jurisdiction bility ap- alternative if the of their entitlements Cam rata shares paign fully. proaches ques- we need not so that confront fund them is insufficient to Fund concerning jurisdiction 9006(d). both whether tions our § See id. 1343(3) depends on the under existence of § Buckley Valeo, requisite U.S.App.D.C. 172, whether state action 229-238, 821, 878-87, appeal granted, 519 F.2d in the circumstances action of this - -, plaintiff possibility is that a One assert- case. ing (U.S. 1343(3) 1975) (No. jurisdiction 75-436). U.S.L.W. 3178 under § Oct. need raise

577 217, at Id. at 82 710. it.” S.Ct. Yet the Justiciability. C. Court considered “manageable” Baker question the of pretermit We whether legislative apportionment schemes a validity of a national the quite similar the standard one we ap- apportioning in convention dele actions apportionment below to ply justiciable in the federal is courts. gates It legislative held schemes. was a matter decided in also Geor This were to be struck down only schemes if 78, regarded F.2d at 447 as gia, 1276 — no they “reflect ... policy but Bode, 1305, in 452 F.2d at settled capricious simply arbitrary and action.” O’Brien, subjected “grave doubts” 226, 715. at 82 S.Ct. at Id. 4-5, 2718. at 92 S.Ct. While it U.S. 409 appeared Powell to curtail the “politi not, question, the state action like is question” cal doctrine even further. shifting upon rests statutory which might with what have Faced been it is nonetheless one of ground, obvious thought classically “political ques difficulty. tion” of whether the House of Repre decided in the were Georgia Bode coordinate sentatives —a branch —had 186, Carr, 369 v. Baker of wake one of members, excluded properly (1962), 691, and Pow- S.Ct. question justiciable. the Court found McCormack, 486, 89 395 U.S. S.Ct. v. ell case, Significantly for our it rested that (1969), two decisions 1944, L.Ed.2d finding part on involvement of “political to drain seemed right to own representa choose one’s much of its vitali- doctrine question” tives, which it to compelled “resolve any former ambiguity case de- in favor a narrow Court ty.27 construc fact that the suit scope Congress’ that “the mere tion of the power.” clared right of a does protection at 89 S.Ct. at 395 U.S. seeks a political ques- presents seemingly sharp mean it contrast with this ap at at 706. 369 U.S. S.Ct. we have been more proach, recently tion.” ad were to arise from questions said “great monished exercise Such relationship judiciary “interject between caution” before we “the [ourselves] processes branches of the Fed- the coordinate the deliberative into of a na convention, at . . Government.” Id. . tional involving eral as question do, Arguably relationships great now be- delicacy nonjusticiable essentially political under Baker be- us fore nature.” Brown, judicially of a “lack of discoverable O’Brien v. 409 U.S. at cause 92 S.Ct. manageable resolving standards at 2720. question assume, plaintiffs). the existence of will substantial We rather hold, gain jurisdiction access to 1343(3) action in order to the fed that our under state than § Hood, depends courts. Cf. Bell v. on the existence state eral 682-83, action. Con- (1946) (ju sequently, pretermitting ques- 90 L.Ed. 939 since we are 1331 unless the exists under con not there is § risdiction tion of whether or state action in “frivolous”); case, question Jackson juris- claim is v. we reserve also the stitutional Co., 1343(3). Metropolitan infra, Edison See note § diction under (1974) (finding 42 L.Ed.2d 477 of no and cases cited. of dismissal on mer action cast terms question may nonjusticiable A27. for rea- jurisdiction its). is to base Another alternative being “political ques- sons other than its controversy No amount § justiciability tion.” The issue is the broader herein, conceivably alleged such an been particular question one of whether is “ca- unnecessary personal allegation where civil pable through judicial proc- of resolution sought rights to be vindicated. See Cort ess,” purely as it not be because it does Resor, (S.D.N.Y.), F.Supp. right controversy.” not arise in a “case or Flast v. 1971). rev'd, (2d Cir. But see 447 F.2d Cohen, 83, 94-101, Wilson, U.S.App.D.C. Gomez We have re- n. 56 420-21 F.2d solved our doubts on score under however, disinclined, to rest on ei- We are heading supra, “standing,” and confine our- approaches given alternative of these ther question” “political selves here to the doctrine attention that or nonexistent scant nonjusticiability. (§ 1331 to them was not cited addressed inquiring as whether second to the and declining ques to the In decide re- formula satisfies those particular we its close note justiciability, of tion decide, quirements. we do question the relationship to merits the constitu the of say, is to that Person, One of One Applicability A. arguments Defendants’ claim. tional Vote. “managea are that the nonjusticiability is one vote standard person, above, one As noted plaintiffs rely primar- ble” that without it a court guarantee inapplicable, the constitutional of ily on evaluating political the They no basis for protection. analogize the equal choosing make in that National judgments Convention to the delegate allocation among in which legislatures guaran- alternative that is view not so different. require to representa- Our been held schemes. tee has person, a strict one one man, agree that one We on a “one vote” tion basis. and, inapplicable, since propose constituency standard that the vote Plaintiffs among al party’s choice the are each to we consider members have “one whose as to be much an exer population schemes location be either the entire a vote” of infringement of constitutional it that state, part that of cise voted Re- say the we that it offends rights, past cannot in or more elections. publican do, we to What decline argument entire couched in Constitution. Their however, step take the more drastic challenged is to the of formula’s devia- terms we would never be com holding that to proportionality from those con- of tions contrary a conclusion.28 Although they to reach petent appar- stituencies. would accept deviations, such some

ently limit as an outer the set devia- would Ill present college. electoral tions arguendo disproportionality de- Having introduced assumed The victory system they subject justiciable consti- bonus do not con- fendants short, limitations, justifiable. we they argue confront sider tutional that, permissible of its those limitations whichever con- whether of question the Republican Party in this case. Our stituencies chooses been exceeded convention, two first a national parts, represent into falls discussion general represent the Consti- those dealing with what constituents as a must legislature would, give dele- in the allocation of them mathe- requires tution convention, equal representation matically or have a national gates military decision, recognize “justi 28. We that “state action” these cases on ciability” regarded are often do to that as threshold is their facts 351-52, not rise level.” Id. at nothing illogical passing similarly sues. We see about 89 at 53. Court S.Ct. however, them, certainly challenge jurisdiction over and we do not to rule on a declined authority doing merits, preferring lack so. In United States of relief denial Avrech, Augenblick, Navy Secretary v. U.S. 21 v. (1969), 677-78, (1974), Court of had 94 S.Ct. 41 L.Ed.2d Claims Bustamonte, pay to two awarded back in Schneckloth ex-servicemen on ground rights their 249 and constitutional had n. pre been violated in the Public courts-martial which See also Utilities Comm’n. 462-63, Pollak, military discharges. ceded their Certiorari (Court granted (1952) proceeds importance “because of the 96 L.Ed. to merits claim, question concerning jurisdiction “assuming” appar of constitutional ently deciding judgments regulated not that action Claims review company action”); Id. at courts-martial.” at 530. constituted transit “state question, After brief discussion of ever, Farmer how Irish v. Democratic Labor Minnesota, expressly it, aff’d, F.Supp. (D.Minn.), the Court declined to decide assume) (8th 1968) arguendo, (relief since “even if that a 399 F.2d Cir. denied judgment collateral attack on a without decision of whether state elec court-martial may through action”). be made the Court of constituted Claims tion of “state back-pay alleging a suit ‘constitutional’ defect formally and indisputably organs compelling reason to. That is the claim, the state. and also its essence of essen- fallacy.29 tial not, That rule is for example, applica- ble to the election of state judges. conduct The fact plaintiffs Wells v. subject Edwards, F.Supp. (M.D.La.1972), Clause does not in challenged Protection Equal the federal constitutionality of applicability provi- establish itself in sions the Louisiana Manifestly, vote rule. one Constitution for person, one justices election of the of may command not that state’s constitutional given supreme judicial court from part of the state what districts of of one require unequal population. It army and the was held another. requires “the rationale behind the one-man, equally are con- not one- commissioner park Amendment; principle, vote which evolved the First out of ef- by strained preserve forts to a truly subject representative the same re- not to President of government, form making simply appointments Con- not rele- straints makeup to the vant of the legislation. And in- passing judiciary.” is in gress Supreme Id. at 455. The Court Equal Protection af- clear it is deed 1095, firmed. 409 U.S. 93 impose 904, not the same one S.Ct. does 34 Clause (1973) L.Ed.2d 679 upon (memorandum).30 rule all vote elected one person, bodies, decision-making even if F.Supp. (W.D.Wash.1970) (holding 29. The Court has not ruled 682 on the applicability person, Maxey, supra, inapplicable of one par one vote to to the selection apportionment committee). ty’s delegates selection and state to Redfearn v. Del. Re Comm., publican (3d conventions. See State 502 Cousins F.2d 1123 v. Cir. 477, 4, Wigoda, 541, 1974), U.S. per 419 483 n. 95 S.Ct. the District had held the one (1975), son, supra; applicable Gray party’s 42 L.Ed.2d 595 note 18 one vote rule v. to the 368, Sanders, 10, 801, 372 ap 378 n. 83 state convention. Third S.Ct. Circuit was (1963), parently willing 9 L.Ed.2d 821 note 65 infra. The to assume lower that if the conduct point. person, action,” per courts have divided of son, were One the convention “state one inapplicable required. found by one vote was be in Irish one vote would v. Troubled Party Minnesota, resulting highly Democratic-Farmer-Labor interference with “the rele (8th Cir.), aff’g, rights F.Supp. Party,” 399 F.2d 119 287 vant associational 794 how ever, (D.Minn.1968) (party may it remanded case select national con- directions to delegates through malapportioned vention to District Court consider whether system), apparently state convention “state action” should not be also removed inval Comm., implicated State Exec. F.Supp. Smith v. 288 idation of the statute (N.D.Ga.1968) (equal protection party’s nominating process. 371 state in the satisfied delegates election of national convention Scott, 30. See also Holshouser F.Supp. v. 335 convention”). “open Two District Courts have 928, (M.D.N.C.1971), aff'd, 807, 933 409 U.S. squarely contrary. Doty held v. Mon- (1972) (“showing Comm., tana State Democratic Central 333 arbitrary capricious or invidious action F.Supp. (D.Mont.1971) (party may 49 not se- or distinctions between citizens and voters through lect national convention required” would be to invalidate scheme of malapportioned system); state judicial by unequal districts); nomination Maxey Washington v. State Democratic Fortson, F.Supp. 575, (N.D. 234 Stokes v. 577 Comm., F.Supp. (W.D.Wash.1970) 319 673 Ga.1964) (“Manifestly, judges prosecutors (same). distinguished courts Several be- representatives not the same sense as tween “internal” affairs and nomi- legislators or the executive. Their function nations, holding person, the one one vote rule law, espouse is to administer the only applicable Seergy Kings the latter. v. particular constituency.”). of a cause Cf. Bu County County Comm., Republican 459 F.2d Gilligan, F.Supp. (N.D. chanan v. 349 571 1972) (2d (county 308 Cir. committeemen 1972); Lawyers State Ass’n Ohio N. Y. of Trial unequal districts, be elected from but when Rockefeller, F.Supp. 148, (S.D.N.Y. v. 267 153 nominating performed malappor- functions are 1967); Rhodes, F.Supp. v. Buchanan 249 860 by weighting be tionment must corrected (N.D.Ohio), dismissed, appeal votes); Lynch Torquato, members’ v. 343 F.2d (1966) (all rejecting 1965) (one person, (3d inap- Cir. one vote challenges equal protection unequal distri plicable county selection of commit- judgeships). bution of local district tees); Comm., Dahl State It was federal their lands. reasoned that “the At least one district court and might does not exercise what supreme courts have district similarly four governmental’ as ‘normal person, thought the one au- princi held that one vote and that “all of the inapplicable thority” to state costs of ple is constitutional conventions, projects against are assessed land pro which “can make district proportion which can have assessors to the benefits posals no effect unless Id. at in another received.” S.Ct. at 1230. ratified election every given vote same [with] Obviously, these exceptions Edwards, weight.” Driskell requirement vote person, the one oc (W.D.La.), vacated, F.Supp. too far cur in contexts removed from (1974),31 a national that of convention for quoting Carr, from West v. 212 Tenn. dispositive them be case before (1963), S.W.2d cert. de demonstrate, They however, do us. nied, principle person, of one one vote is (1964). Accord, Bates v. absolute, to be unthinkingly not an in Edwards, 532, 294 (La.1974); So.2d 534 every persons voked time two or more Kelley, 406, v. Stander 433 Pa. 250 A.2d selected to make decisions on other 474, 481, cert. denied sub nom. Lindsay behalf, making even if the people’s 827, Kelley, 2130, v. 395 U.S. 89 S.Ct. 23 very plainly those decisions “state ac (1969); L.Ed.2d Livingston The constitutional tion.” command is 9, Ogilvie, 138, 43 Ill.2d 250 N.E.2d 145- person, equal pro not one one vote but (1969). laws, requires tection of the and what it way representation in a by given as person, We also that the one one know depend sembly purposes must on the though generally ap requirement, vote assembly convened and the to local as well as state and fed plicable nature of the decisions it makes. The assemblies,32 apply to cer eral does not inquiry Supreme Court’s into these mat “special purpose” assemblies whose tain has led it ters conclusion that “disproportionately affect dif decisions assembly where exercises formal groups.” Salyer Land v. Tu ferent Co. powers governmental person, one one District, Basin Water Storage lare Lake ordinarily required. vote is A similar 719, 727, 1224, 93 S.Ct. 410 U.S. inquiry in other contexts well re (1973). Though it had re L.Ed.2d public private veal that the and interests quired equal representation on local making through decisions some other boards,33 higher education school representation outweigh scheme Supreme Salyer permitted Court in by numerically equal interests served ap storage of a water directors district portionment. agricultural by elected land owners think the political parties We only, being with the latters’ votes may validly so conclude with weighted according respect to the valuation of procedures Mundt, challenged 31. The 182, in Driskell 32. Abate v. 403 U.S. were 91 S.Ct. 1904, (1971); mandated Avery the Louisiana Constitution. v. Midland sought enjoin County, Plaintiffs enforcement 390 U.S. there- 88 S.Ct. of, requested convening (1968). and therefore of a L.Ed.2d three-judge pursuant district court to 28 U.S.C. Hadley College Metropoli v. Junior Dist. of Their § suit was dismissed City, tan 397 U.S. Kansas 90 S.Ct. single judge for lack of a substantial federal (1970); L.Ed.2d 45 Kramer v. Union Free question, F.Supp. yet appeal direct Dist., School 89 S.Ct. sought appeal Court. The See also Phoenix v. Ko improper. was ruled The Court vacated the lodziejski, judgment and remanded the case “with di- (1970); Cipriano City L.Ed.2d 523 to enter rections a fresh decree from which a Houma, timely appeal may be taken to the Court of (1969) (both invalidating restric Appeals.” 419 U.S. at 95 S.Ct. at 26. approve tions on franchise in elections to mu issues). nicipal bond nominating faction in cheek.35 presidential conven- their Nonetheless we below, explained fully more had parties As pretty tions. much had, or the beginning,36 have never been conceived from these and with rare and exceptions function of having, providing early have chosen our vote person, representation one Presidents from among strict the candidates constituency. parties put a definable national those forward.37 Like the representational Weighted itself, schemes early political are election nominations scarcely the numerous one of were for President anything but demo- distinguishable ways, Throughout some themof hav- part cratic. first sanction, in judicial politi- century they which the ing eighteenth were made by usually their cal conduct affairs some- comprised of caucuses— thing scrupulously party’s delegation short of Congress. democratic that significant, Most the downfall “King fashion. interests Credit Cau- representa- generally given adopting advance cus” is to Andrew Jack- choosing successfully fought for, who tional schemes their own son from, a great change to us to be of benefited importance seem the ostensi- bly democratic clearly system.38 constitutional stature. more convention system appears That to have been firmly parties are Political nowhere referred major parties in effect both by 1840, surprisingly to in Constitution—not substantially and in the same form that their reputation among in view of low today. we are familiar with Washington nation’s founders. our countrymen his “in the most sol- warned From the start delegate votes at the against the manner baneful effects emn apportioned were according party,”34 spirit of the and Madison to each State’s electoral college vote.39 thought it principal a it task of the new Indeed is somewhat ironic that the convention, to hold the Constitution “mischiefs of the first major reform of the Washington, Address, reprinted 34. G. Farewell podes. . . . Wherever at the head of History. 169, in Documents of American undertaking you govern- some new ment England, see the (H. Commager 1946). France, ed. in or a new man of rank in you in the United States will find Madison, 10, reprinted 35. J. The Federalist No. an association. (Cooke The 1961). in Federalist. ed. Democracy De II A. Tocaueville. in America. 36. John following Adams has left us the de- (Knopf 1945). ed. scription way political of the candidates were Regular presidential 37. contests between in chosen even 1763: Republican parties began and Democratic in day This learned that the Caucus Club meets However, Party Democratic garret Dawes, in at certain times of Tom origins can to Repub- trace the Democratic Adjutant Regulars. of the Boston He Party began lican which Thomas Jefferson to large has a house . . . and whole Washington’s assemble even before the end of they in club meets one room. There smoke H. first term. Bone. American Politics and the you tobacco till the flip cannot see from one end of Party System. 28-30 A case can like- garret they to the other. There drink wise be made that Hamilton’s Federalists and they suppose I and choose a moderator subsequently Whig Party prede- were the puts questions regularly; who to the vote present Republican Party. cessors K selectmen, assessors, collectors, and fire- Sait. American Parties and Elections. 205 wards, representatives regularly so, If then the Presidents who chosen before in chosen town plausibly products claim not to be the rivalry two-party are James Monroe and The (C.F. II Works of John Adams. 144 Adams Adams, Quincy during John who served a sort ed., 1850). Perhaps prevalence parties “interregnum” after the decline of politics in American was inevitable. It was Whigs. Federalists before the rise of the early observed that Bone, supra, See at 28. ages, conditions, of all Americans all and all Sait, Bone, dispositions constantly supra 245; E. form See note at associations. supra note . The Americans make associations give entertainments, to seminaries, to found Sait, supra 39. E. note at 249. inns, churches, to to build construct to dif- books, to fuse send missionaries to the anti- aberration correct historical contrived brought with it an nominating process, They at the 1972 convention. are invit- that bore no rela- scheme apportionment judicial ing proc- us take into hands strength relative tion at all change adaptation states, ess of that still various whereas the in the the Party. continues within caucus reflected congressional accurately.40 strength quite We have declined that twice invitation of elec- recurrent criticism was There Georgia and Bode cases. It apportionment, par- college-based toral significant that in particularly the latter Republican Party, where in ticularly we expressly upheld case the parties’ control to gave inordinate it long-standing practice of apportioning Party which the States from southern delegates according college electoral electoral success. Re- hope of had no strength.44 Democratic Party for- way and in a finally came form in Bode challenged mula allocated 54 irony second for this presents which delegates on percent of the that basis. college basis was in electoral case: Although it allocated the remaining 46 retained, but extra vote was effect according to percent voting Democratic congressional which districts awarded strength past elections, as measured past elections.41 had voted reason, or even was for that because was thus reinstated as Party strength analogy of the itself, to the electoral college through apportionment basis for we sustained formula. such as one to system vote a bonus college apportionment Electoral per- object.42 strenuously so plaintiffs “independent ceived have an rationali- employed some such use,” which was ty for its it re- college-based and electoral mixture judgment flected “a exercised toward since.43 ever votes bonus maintaining enlarging party appeal on a national scale.” 452 F.2d at 1309. few facts these historical We mention think that what has been we not because so, upholding college In thus electoral always ap- must remain past true in already we have in effect portionment the matter perspec- merely put the notion that national con- a discarded requesting impose tive. represent must vention some Republi- vote rule on the person, one one person, constituency on a one one are not us to vote asking Party, plaintiffs can Calhoun, party early strength opponent reflective of than it John C. would 40. be if college based system, on electoral later to vote write: alone. In indi- caucus vidual cases it apportion- also make the congressional Objectionable I think a cau- as population. Thus, ment reflective more of President, my nominating a it is in cus for case, our the fact that California voted for the opinion than a consti- far less so nominee, Republican and Massachusetts proposed. The had in- is former tuted as not, suggests Party did stronger is many things it. Its recommend deed California. Because of its 1972 vote California or- . . were immediate members . receives challenged a bonus under the formula. Legislatures people; gans or the of the State The bonus redresses to some extent the over- them, respectively, responsible and were representation Massachusetts would otherwise character, part high of the most were for (as compared California) both in terms They per capita', standing, voted or talents. population party strength. of represent- and, very important, they what strength party fairly relative ed 43. See P. David. R. Goldman & R. Rain. The Party respective states. Politics their of National Conventions 165-68 (Cralle Works of John C. Calhoun 247 ed. VI. added). (emphasis 1968) Georgia 44. In we confined ourselves to con- sidering, rejecting, precise “the claim ad- Sait, supra note E. at 438. 41. See by appellants” delegate vanced allocation system constitutionally the bonus still has the 42. must population Of course reflect total making delegate apportionment only. more effect of 447 F.2d at 1280. grass to their parties down both college apportionment Electoral roots.49 basis.45 equal excused from They rep- have been not related to set of obviously is ground on the requirements resentation Party members or adherents. Republican they only administer the popula- to total relation some It bears but the distinction is “internal affairs,”50 very rough a tion, one.46 strong a one. addition to con- any number of other There ducting the convention51 inconsist- seemingly which practices dispenses patronage Committee National one vote person, one a strict ent with It makes numerous funds.52 either have sur- and which requirement, important political during decisions or, think, scrutiny judicial vived national conventions— periods between challenged. They surely do so if would policies party publi- are favored in whose the task the size of demonstrate at least pronouncements, cations and whose local undertaking would courts are aided campaigns appearances of person, a one impose were nationally prominent party members, nominating presidential vote rule The fortunes presidential and so on. process. rise and fall with hopefuls such deci- of its Party does much Republican sions. Committee, through National business malapportioned to the extent of which Turning to the delegates themselves, of two members from comprised being party might well wish Moreover, impose the mem- one of condi- each state.47 delegate tions on selection man, one a are in- a woman and must be bers consistent with an unconstrained, validity respect mathe- dubious condition matically equal system representation. in, say, let us a state membership The Democratic Party recently did so system A committee legislature.48 establishing quotas for the membership predetermined malapportioned such delegations minorities, wom- historically membership has dominated opinion specifically disap- Republican in Bode Our 48. See Rule 20. State Chair- ruling proved District Court that the man are ex Repub- also officio members of the required Constitution allocation for- lican National Committee. Rule on the number of 19(b), mula “based Democratic J.A. 151a. voting immediately pre- in one or more voters See, g., Seergy e. the facts of Kings ceding Presidential elections.” 452 F.2d at County Republican Comm., County 459 F.2d (2d 1972). Delegates Cir. to the 1976 Re- large represent up publican 46. Electors from States National Convention will also select many people Resolutions, Credentials, as 4.4 times do electors from Rules and Order of Business, small States. One of Alaska’s three electors Organization and Permanent Com- 100,724 people represents according mittees, composed, like the National Commit- forty-one tee, 1970 census. One New York’s of one man and one woman from each 443,677 represents people. Republican electors See Exhib- State. See Rule J.A. at 150a. P-2, 74a, 83a, A, F, & J.A. 183a. Seergy Kings County Republican 50. County Comm., (2d 1972); Lynch 459 F.2d 308 Cir. Republican See Rules J.A. 151a 47. No. Torquato, (3d 1965); 343 F.2d 370 Cir. Dahl v. (“[The shall have the Committee National] Republican Comm., F.Supp. State 319 682 management general of the Re- of affairs (W.D.Wash.1970). Party publican United States and its in the subject from time to to direction territories 51. For an account of the crucial role that ad- Convention.”) National time of the (appointments ministrative decisions of sub- chairmen, delegate committees and their seat- importance National of the Committee The ing accommodations, coverage, media organization which meets in convention in an etc.) played in the 1968 National every years Democratic four is underscored once Convention see Commission on body the Democrat- fall to this to fash- that it would the fact ic Selection of Presidential Nominees. The delegate allocation formula should ion a new (Hughes Democratic Choice 40-43 Commis- invalidated. See note 4 one be 1968). Report, sion supra. Bone, 180-81, supra 201-04.

52. See note at a pri- is made not in the selection en, people.53 a national states young Could through but series of election mary take more step drastic local, county, and state caucuses con- perceived some reason refusing for to be malapportion- Often these best Party’s interests to seat a ventions. in the participation voter is so ed,54 and often at delegation Apparently, all? State’s process selection to make the slight Court stated in Cous- so. The (or officially) of virtually ap- even Wigoda that Convention ins v. “[t]he by party officials.55 prac- A obligation pointment to seat the re- no was under is more defensible perhaps, Illinois court or- tice spondents [whom scarcely “democratic,” more though was free ... to dered seated] delegate of ex officio granting status Chicago seats vacant and thus leave public holders, officials or office objective.” party at to defeat special their because of presumably wis- at 548. expertise.56 dom apportionment “Equal” delegates among presumably the states sought “equal” insure representation to respects, then, order There are number of in those people parties states. Yet conduct their in which affairs of delegates selection at by giving equal

actual the state than attention other to from the highly voters, level varies democratic of all preferences even all opposite extreme. In a Perhaps number of adherents.57 this is not party Party Report, supra National Commission on Hushes 53. Democratic See Commission 55. note 19-27, (“The study Selection. Mandate for Structure and Deleeate at Commission’s in- Reform, (and to) delegates reprinted in cited over hereinafter to the dicates Convention have included quo- (1971). processes were selected Cone.Rec. but, mandatory, participation as one member no means of voter not were tas 1966.”); Note, quota Safeguards which conceived since in Nominating Constitutional Commission of the system delegations Delegates reports, “most chose Selection of Presidential Conventions; by making had close Yale play sure L.J. it safe to to the percentages required favored of each 1240-52 Ranney, Changing group.” the Rules of the reported 56. The McGovern-Fraser Commission Game, Nominating Choosine the President 78 practice was the that this Parties of Democratic ed., 1974). comparable (Barber com- A n. 1 states, number of one of which Republicans appointed to recom- was mittee mend delegates 12 of its 47 selected the 1968 changes del- in the rules for selection of National on an Democratic Convention ex offi Party’s egates convention. One Reform, supra Mandate for cio basis. note recommendations, accepted, of its at 32914. delega- include in its “each State [shall] attempted Both to eliminate convention del- tion practices. generally the described See some of eq- years age egates uity in numerical under Reform, Report 53; supra Mandate for note voting strength the State.” within to their the Delesates and Orsanization Committee. Report Organization the Deleeat.es and II However, supra even note the more far- (Republican 5-9 National Commit- Committee reaching Party reforms of the Democratic did 1971). publication, tee entirely practice, eliminate found not prevalent to be Maxey State See, g., v. Wash. facts of States, the Comm., e. in about one fifth of the (W.D. F.Supp. 673 delegates selecting Democratic committees of for of- Reform, Wash.1970); v. Democratic-Farmer-La- Irish supra Mandate See ficials. 53, note (D.Minn. Minn., F.Supp. 794 bor procedures of 1968). selection perhaps perspective surveyed Developments 57. It will add to our the states virtually unique Law-Elections, that the United States is 1153-54 a selec- note among Harv.L.Rev. degree permits western democracies Republican Rule 31 by pri- selection which the of candidates is en- tion of mary party election, even to rank and file. “[b]y Congressional or trusted where this is party the Else- District regarded Conventions,” “[b]y as a function of or State State any Epstein, leadership. Governing See L. Political Par- Committee Committee (1967). ties in specifically Western Democracies autho- 201-32 the law in which State system selecting Delegates The British candidates for ... of the election rizes study judged is in the cited Parliament to be J.A. 153a-154a. manner.” such are after not surprising. party A is after all more semblies all ends in them- to a forum for all its adherents’ selves means effect change views. than attempt through political process. to organized is an see the If It that is so, put right of those views there must be a important only into not most to through political of the associations but organ- control levers of form to practice party way One ize and direct them in government.58 may think that will way the best to this is them through do make most effective. a “strictly majoritarianism. democratic” The Court has frequently may another think it only But can be kinship stressed close of the free (let say) by giving proven us done of speech doms of associa professional greater voice than party See, g., tion. e. Kusper Pontikes, newcomer. Which of ap- these 51, 56-57, 94 S.Ct. is the more efficacious we proaches can- (1973); NAACP v. Alabama ex rel. certainly the latter say, but seems a Patterson, 449, 460, description accurate of how politi- more 1163, 2 (1958). L.Ed.2d 1488 It has de parties operate reality. cal that “[a]ny clared interference with the of a party freedom is simultaneously an pur What for our important interference with the freedom of its ad choice, among as party’s is that poses herents.” Sweezy v. New itself, Hampshire, of the ways governing of various 234, 250, calculated to which seems best It has invoked party and advance its in strengthen the First Amendment to strike down terests, protection of the deserves restrictions on general access if not more elec as much than Constitution ballot, tion stating that right express constitu “[t]he condemnation. party form a for the advancement rights speech assembly are tional political goals little means if a they party if do not slight value indeed can kept off the election ballot and right thus carry with them concomitant equal opportunity denied Speeches association. and as- win Thorburn, G. C. Periin & H. typical, G. The National more far lowing and is described in the fol- Party Party Convention Politics in Canada terms: (Thorburn 1972). ed. also U. See Parris. The types dominating The process vary locality of local leaders Convention Problem 36-37 party party from and from point difficulty This driven home They may, locality. for instance determining exactly what is the party], “constituen- the Labour [in be trade-union leaders cy” of a national convention. Is it the entire just political rather than activists. But in population, may much of which have not any they relatively case few in number. slightest interest in what the convention de- Candidate selection is not the business of registered party membership, cides? Is it the . . the no need—in undesirable—for rank and file. . There is a class which even does not exist in fact, some usually regarded it is states? Plaintiffs contend that it is the set of aspirants campaign be- party’s voters who voted for the candidates in membership. fore the Candidate selection is past elections. That is a different set for each oligarchical. meant to be election, course, a fact that serves to major political parties at Id. 220. Canada’s demonstrate that the circumstances of those leadership “national conduct conventions” elections have been such as to attract to resemble ours in the sense large candidates numbers of voters representative purport to be mem- continuing who retain no tunes. interest in scheme, its for- bership. representational how- identify If we cannot with ever, confi- gives power is one which even more ex- people preferences dence the set of whose plicitly groups to the individuals and who con- given equal expression to be and accurate party. the most tribute At the 1968 party convention, perhaps then convention, we must admit example, Conservative purpose primary that that is not the of such a percent were 35 an ex officio basis from officers of federal and selected on primary purpose convention at all. The is to among major “the par- chart a course for the advancement of the provincial party associa- ty’s ideals, light and it is in tion, the re- organizations university women’s quirements equal protection clubs, are to be dis- along Parliament, members cerned. Senate, legislatures.” provincial Lele, J. vote is a right to If the been made.”60 Rhodes, U.S. Williams votes.” the elective participation in true right 30-31, 89 S.Ct. heavily implicated in it is then process, (1968).59 deny process. We do not the nomination Court in Cousins term the Last on the view judgment this, rest our but workings of the internal placed Wigoda right right and the that that, between squarely pro- within the association, the latter is of free First Amendment. The tection protection in this case. in need more the Illinois courts had whom delegates below, right the elaborated is further As in that case had been se- ordered seated way in the that will organize law, with Illinois in accordance lected political or most effective make Party’s Guide- the Democratic not at stake here. clearly seems ganization compelling “a in- claimed Illinois lines. to one vote is of person one right of integrity of its protecting terest general in the election. preserved course held that The Court process.” electoral least, persons dissatis Theoretically at prevail against not could interest facing them in that the choice fied “constitutionally protected rights of access to ballot may gain election Party exercised in which association” major party nomina than other means delegation of its choice. seating the course, could, form their They tion. 541. Nor can the 95 S.Ct. at practical impor more Of party. own as one in which the explained case there are two ma that the fact tance is who preferring being time for the jor parties, clearly in the more demo- elected were competition. Persons in intense least whom the Illinois way: those cratic be welcomed party may in one not heard seated were elected in ordered courts other, enough if there are who were seated those primaries; defections, offending party may such private chosen in caucuses. Party were election, as both general lose 478-80, If First Id. at aware.61 be well must rights are exercised when a Amendment make-up, per- determines conclude, therefore, We that the existence, delega- of state haps even Clause, Equal Protection assuming it is tions, the same is true when it we think does not applicable, require the represen their size. determines presidential tation nominating conven of some defined constituency tions on a The First of course not Amendment is vote person, one basis. It is satis keenly aware only concern. We our representational fied if the scheme matter, practical the ulti that “[a]s elements rationally each of its advance pre the mass of voters is choice of mate legitimate some interest of the party in the nominations have when determined Abernathy. speech G. The Rieht of Assem- in that case freedom and in this also case 59. See bly right Requiring to vote. that such and Association 171-244 entities give protection the same to those constitution- States, Newberry v. United government rights give al must is a (1921) 65 L.Ed. 913 solution, tempting one which had in fact been J., (Pitney, dissenting). adopted by the lower court in Columbia conflicting Broadcasting, case contest in this of two 61. The see Business Executives Move rights suggests analogy FCC, U.S.App.D.C. constitutional for Vietnam Peace v. Broadcasting System However, v. Democratic Columbia 450 F.2d 642 that solu- Comm., price National with it the tion carries interference (1973), holding rights the First First Amendment with the of the enti- require themselves, part broadcast licen- Amendment did and it was in ties on this accept ground editorial advertisements. sees Court reversed. political parties 120-21, are similar Broadcasters U.S. at To the extent both, although nominally pri- case, in the sense the conflict is the same in our it must be entities, position way. hinder are in a vate resolved in the same rights, other citizens’ constitutional exercise of focus its attention on the achieving profitably otherwise winning elections victory. it has a chance of turn, then, in which This goals. We to the rationally we think is served purpose challenged whether the for- of question victory system. A state bonus which the this test. meets mula past Republican may the gone do has Challenged of For- B. Justifications college apportion- If electoral again. so mula. weights vote of the states ac- ment prize, to the value of the cording By greatest far the number of dele- system does the same victory bonus ac- (72 percent) are' gates allocated accord- winning to the likelihood of it. cording college electoral vote of the ing to the a upheld this as We basis States. victory system The may help bonus to Bode; pursue and we representation keep state the a camp jus- further only matter because the only by orienting party policies to that college apportion- electoral tification for interests, state’s but also by providing a within it justi- carries much of the ment reward incentive for the efforts of entire this formula. A fication party organization. that state’s Whether the electoral college share of vote State’s incentive, or not it is an effective it may approximates its roughly share of only a be the one that party national has It precisely population. reflects the ease, to offer. having accepted importance state relative to the legitimacy of such party-strengthen- winning presiden- in terms of party ing measures, we hardly can say that it Bode, election. As we stated in tial “the is irrational. of a party function con- primary rational, It is most perhaps, with re- among . . . tois select a vention spect “proportionate” victory bo- persons available field of Presidential nuses, since a likelihood of success is Vice-Presidential candidates most important more large a state than a perform to competent duties of- then, small one. Not surprisingly, it is fice, capable attracting a yet suffi- the “uniform” bonuses which have come popular carry number of votes to cient in for the plain- severest criticism from requisite number of States in the tiffs, not to mention the district judge. 452 F.2d at (emphasis election.” these, too, But seem us to be rational- added). ly given conceived. Success in a “requisite number of States” may have a certain value to the party awith majority number the college of electoral quite proportion out of to the state’s delegates votes. from those counted, size. When the returns are presumably know will best what states basis, state-by-state a carrying Arkansas is likely carry kind candidate them. give in a will sense the same helpful, or may be even necessary, It boost psychological carrying as Tennes- running mates who actually come (more size). see than twice its And so, wise, may states. If those from state, carrying a Tennessee, Arkansas or thought if it is especially electing also mean two Senators may ignore other states this from fact a Governor on presidential coat- sons,” “favorite favor of their “build Holding tails. these undoubtedly offices large from in” for candidates states the importance certain “uniform” large advantage delega- home-state party, in terms of the immediate have, Assuming, we tions. consti- represent they power and also because validity tutional allocation springboards are the for future improve taken to Party’s measures Presidential candidates. These consider- victory, hardly one is chances adequately ations seem to us justify irrational. victory the uniform bonus of six votes It could stand improvement, some success in of for Presidential election. If equal As between two states course. the bonus for success in state level elec- importance, requires separate justification, electoral tions could more need, urged It this formula it is think stress, represents nothing more than an effort heavily plaintiffs so measure members from by by party strongly Repub success in strength than party more perpetuate lican states their control.62 past one election. us that But it seems to the First Amend Objection also is made to the alloca- protects power their precisely ment do (14) the District of Columbia tions to Party that. The could have chosen a Virgin (4 each). the Islands to Guam and delegate allocation scheme calculated to delegates from the The fourteen District base, by giving special broaden its influ clearly represent dispropor- of Columbia tionately delegates ence to from States where the voters, but do they dispro- few appears is weak. Instead it party the represent importance of portionately gains have chosen to consolidate its in governmental particular this unit to the where it has been strong. states We are one who has lived in party? No not about to hold this is an irration deny special importance District can way political al to seek success. As for city ambiance in which aspects of the formula those which treat business is done. the Nation’s As for the the states on a uniform basis and thus territories, their four votes each will give disproportionate influence to the hardly a decisive comprise bloc at the states, say smaller how could we convention; party and the might well not rationally do serve the impor delegation that a have concluded of four among tant cause of cohesiveness the smallest that it makes is sense state parties, various when it pre took bring the considerable distance to the cisely bring such a scheme to about the convention site. union of the states themselves?63 justifications There are other for the formula, various elements of this as certainly countervailing objec-

there are We therefore hold that the for to the ones we have mula does not tions mentioned. violate Equal Protec importance tion Clause. The uniform might To the states extent that voting thought adequately rights involved, be reflected in warranting ju close college scrutiny, vote. dicial importance electoral Their these rights are by offset strength party in terms of could First perhaps rights Amendment exercised accurately Party be more choosing reflected allocat- the formula it did. delegates ing according emphasize We must the size of the that this only is true past vote in because the elections. And the formula rationally advances legitimate party chances for success in future elections interests in ef might be maximized paying more at- fectiveness. The same might always “swing” tention to states than hold true. “safe” There are no racial or other ones. Yet it is the essence of the invidious were, First classifications here.64 If there Amendment rights, Party’s parties ex- entitlement to consti ercise, they may protection make tutional would slight their own be as as (and contrary rational) judgments those of the victims with- would strong. out Similarly, interference from the we have courts. said that voting put special emphasis 62. Plaintiffs on this no as more than “loose confederacies point, arguing delegates overrep- parties”). that the from of state States, legislators resented malappor- like in a repeatedly par- 64. Plaintiffs stressed that legislature, perpetuate power tioned can their regions ticular states are favored under indefinitely. They ap- omit to mention that an only This is because the uniform formula. portionment based on vote could have college-based allocations of the and electoral effect, precisely the same if from states, to favor small formula tend and the high States where that vote has been force the victory strongly Repub- bonuses tend to favor so, keep nomination of candidates that will Neither classification is invidi- lican states. expense at the of the Parties in other States. is sanctioned in the ous. The first Constitu- 63. See C. tion, required Rossiter. Parties and Politics to avoid ef- and all (1960) (describing America 12 polls. is success at the national of the second fects judgment of the District Court heavily implicated as are not rights reversed, the case is remanded with in an election. It might nomination to dismiss the complaint. directions in a case where there is be otherwise realistic chance to only so It is ordered. election, and where a vote in the win MacKINNON, (concur- Judge Circuit nominating process is effective ring): be cast.65 that can vote my opinion, Ripon Society has standing suit, to bring no and I caveats significance have no These therefore direct the would dismissal of sug- than to other context present

the complaint as to it. Schlesinger v. the should be slow although courts that, gest to Stop War, Reservists Committee the processes internal to interfere 208, 224, can be circumstances parties, of (1974); Sierra v. Club Mor- grant they re- may wherein of conceived ton, 727, 739, U.S. do not such circumstances Where lief. (1972) 31 L.Ed.2d 636 (“[A] mere Bode, should this case Georgia, exist, and problem,’ in a no ‘interest matter how this court resort to discourage serve the interest longstanding and how quali- intra-party differ- resolution organization is in fied the evaluating the ences.66 problem, by is not sufficient itself Sanders, distinguish Gray may litigation of a v. raises flood further on 65. We the eve (1963), pre- 1976 conventions. No on doubt his disposition clearly finding is ferred of a basis. It Court of no state ac- justiciability closely point. Having job tion and no first would most an- ap- do the case rule, effectively, by person, more one even the one vote same nounced token it go primary too plied to a far. The that rule election held to invidious discrimination party present one rule for state-wide offices. cases select candidates Geor- difficult is- giving unequal weight appeal practice gia’s not in this sues and not neces- sary different to its decision. We wish to cast districts was invalida- reserve votes them. Douglas question reserved the Justice ted. Judge Wilkey certain We are not that if the same would true nomina- whether doing so. succeeded He makes no reference system. through a were made tions to one rule discussing situations. 10, 83 S.Ct. 801. We see at 378 n. no Id. purports action state he to reserve the case of (to persuasive distinction that on basis the ex- classification, racial or other invidious which by are that convention bound tent primary appears always he by to believe can be dealt with votes, systems identical), degree doctrine that a lesser of a state nomina-, Gray’s having on the basis of involved support finding a involvement will of state ac- rather than the national at the state lev- tions complain- in such tion circumstances. As the was, however, el. It case dominated Lodge testify, however, in Moose ants can ra- Georgia. of one rule in fact District enough is cial discrimination if the indicia had noted that it was “known to all Court that lacking, of state action are otherwise has, excep- the Democratic candidate tion, without Wilkey’s opinion Judge suggests they during present century, at least been utterly lacking here. indeed at the choice of voters General elec- Judge Wilkey makes no reference the in- Gray, F.Supp. tion.” Sanders vidious discrimination case in his discussion of (N.D.Ga.1962). If another distinction is neces- justiciability, and his conclusions in that re- weighted-vote sary, it is that the use of the gard sweeping are so toas leave little room hardly primary could be taken exercise Presumably, way some for it. could be found rights by par- Amendment of First one say justiciable that case while this statute, ap- mandated ties. It was doing not. Whether in so we could parties, passed plicable forty- to all some appearance inconsistency avoid the or ma- Act, years Primary See Neill five Georgia earlier.' nipulation question. of the doctrine is another p. repealed Laws 1919 34 Ga. spare difficulties, pre- We ourselves these (1970); Gray, Code Ann. § Sanders greater flexibility, by choosing serve dispo- F.Supp. at 159. merits, sition lying to which the same under- political party considerations of autono- 66. The deference we have accorded to the de- readily my lend so themselves. political decisions fendant’s should be suffi- dispel spectre Judge Wilkey cient States, on the from the standing organization.]”). various the Territories [confer and the course, District presence individual of Columbia. There Of is a have standing, means real distinction who do between plaintiffs, standing Party’s is not Ripon’s program lack fatal allocation and the problems “state” action. involved in “apportion- to this treating ment” cases of legislative reap- exception, above I concur With the portionment plans or dealing with Con- opinion. Judge McGowan’s gressional redistricting issues and similar which, DANAHER, Senior Circuit situations Judge time, from time to have result): engaged the attention of (concurring the Court.2 greater the exercise cau- Perhaps Ripon plaintiffs, in their allega- against my express- forfend tion would here, repeatedly tions of record spo- disagreement from what has ing “apportionment ken of the of delegates.” respected by our colleague, said been In their before motion the Supreme He has written so Judge McGowan. alleged in had their para- so much with I and has said well graph 3: that, possibly, sup- I am in accord should injunctive stay The portion of Were I press comment. convinced the District order Court’s is wholly in- merits, here reach the properly we could the procedure consistent with ap- in his concur ultimate conclu- I would proved by this Court for the granting sions. reapportionment of relief in cases cit- my judgment It is that we may not— by the ed and followed District Court. and therefore that we should not—reach especially Reynolds Sims, See v. 377 persuaded juris- the merits. I am 533, 584-586, 1362, 84 S.Ct. U.S. 12 1, wanting in that: respec- diction is (1964). (Ripon L.Ed.2d 506 plaintiffs’ Ripon plaintiffs tive lacked standing to motion, Supreme file, dated Au- action; 2, this initiate issue sub- gust 17, 1972). (Emphasis added.) is nonjusticiable. mitted on this record I 1 Rehnquist Justice did not miss the substantially join in respective thus however, he point, specifically wrote by my discussions tendered colleagues, Republican in Committee v. Ripon Socie Wilkey. Judges Tamm 1, ty, supra 409 1225, note U.S. 93 Introduction at 1477: S.Ct. bar, In the case at course, immediately impor- me to an we Let turn deal delegate-allocation with a dispute business aspect tant before us. Republican importance retains until Party’s plan, 1976 Involved is the rather 30, dispute than a credentials such in its Rule for the alloca- as embodied v. involved in Brown Convention O’Brien its 1976 tion to U.S. [409 example, 1. For I see no Gaffney Cummings, need for us to 735, overrule 412 U.S. 93 S.Ct. opinions 2321, Georgia court’s earlier (1973); v. Na 37 Weiser, L.Ed.2d 298 White v. Party, 783, U.S.App.D.C. 2348, tional Democratic 145 412 U.S. 93 S.Ct. 37 L.Ed.2d 335 102, 1271, denied, 858, (1973); Howell, 447 F.2d cert. 404 315, U.S. Mahan v. 410 U.S. 93 109, (1971); 979, 92 S.Ct. 30 L.Ed.2d (1973); 101 and in S.Ct. Wesberry v. Party, Sanders, 1, Bode v. 526, National Democratic 146 U.S. 376 U.S. 84 S.Ct. 11 L.Ed.2d 373, App.D.C. (1971), (1964), Carr, F.2d 452 1302 481 186, cert. de and Baker v. 369 U.S. 82 nied, 1019, 684, 691, (1962), 404 U.S. 92 S.Ct. 30 L.Ed.2d S.Ct. 7 663 which, L.Ed.2d each of others, undoubtedly among many Different treatment demonstrably involved developed would have been if there then had “state” action. areWe talking here about been available “right Court’s discussion situations, to vote” inas election g., e. Brown, 1, Classic, O’Brien v. 409 U.S. United States v. (1972), Wigoda, L.Ed.2d 1 Cousins v. (1941), U.S. S.Ct. 85 L.Ed. 1368 or Williams (1975) Rhodes, S.Ct. Opinion by J., Rehnquist, the Memorandum (1968), after prerogatives constitutional had Ripon Society, Committee v. been denied. (1972)]. L.Ed.2d 1 does not entitle eligible plaintiffs added.)3 any to raise conceivable (Emphasis constitutional respect issue to the Act and the sections, relevant criminal no matter I speculative. how remote or per-We It must that nothing be remembered congressional ceive no intent to waive Constitution refers to national requirement article Ill’s that there be Congress passed conventions. “case controversy.” or giving access to the statute courts in no declaratory judgment, often seen as of the allocation of respect the outer jurisdic- limits of article III strength party convention, to a national tion, requires nevertheless there Congress certainly knows how to do (Footnotes be an actual controversy. that, Congress were so to just decide. omitted.) the instant situation with the Contrast It is not any way to disparage the of the Federal Election provisions Cam- of The purposes Ripon Society, Inc. that Act, amended, where the codi- paign say, flatly, corporation totally 437h(a) provides: 2 U.S.C. § fied standing Surely lacks to sue. it is enti- account; to no relief on own tled ob- Commission, the national com viously it has no vote. The Supreme any political party, mittee of Court has told us in Sierra Club v. Mor- eligible to vote in any individual elec ton, 92 S.Ct. 1361, 31 for the office of President tion (1972), may institute United States such ac a mere problem,” “interest in a no appropriate district tions court longstanding matter how the interest States, including of the United actions qualified no matter how the or- judgment, declaratory ganization evaluating is in the prob- to construe the appropriate constitu lem, by is not sufficient itself to ren- tionality any provision of this Act organization der the “adversely affect- 4 “aggrieved” ed” or within the meaning 739, Id., of the APA. 92 S.Ct. at considered the im- recently This court Buckley in v. language port And see 172, 201, United v. Richardson, 519 States Valeo, U.S.App.D.C. 171 166, 177-180, U.S. 94 banc) 418 S.Ct. 821, (1975) (en 2940, where it 41 F.2d the section L.Ed.2d that out pointed nominating particularized Mr. Justice tern used for candidates Blackmun further lieu Chapman Meier, 1, 3, primary system. of the v. U.S. 95 S.Ct. Sims, 751, Reynolds supra, (1975): 42 L.Ed.2d Even in v. text 1383, 565, U.S. at 84 S.Ct. at itself presents This issue case of the consti- explained that a citizen “has an inalienable tutionality of reap- a federal-court-ordered participation right to full and effective portionment Legisla- of the North Dakota processes legislative of his State’s State, many others, ture. That like has bodies," further, “full and effective struggled satisfy require- constitutional participation by govern- all citizens in state legislative apportionment ments for delineat- therefore, requires, ment each citizen Carr, ed in Baker v. 82 S.Ct. equally voice in have an effective the election (1962); Reynolds Sims, v. legislature." (Empha- of members of his state added.) * * * sis (1964) (Em- other [and cases.] phasis added.) Powell, J., concurring See in United States v. Ripon Richardson, plaintiffs simply fail 418 U.S. at distin- S.Ct. at 2955: guish “apportionment” problems arising “. has not broken the Court with the that, Republican requirement under state law from action traditional in the absence of n Gray Sanders, statutory grant right Convention. specific of re- 801, 807, view, plaintiff allege particular- 9 L.Ed.2d must some (1963) expressly apart specified: injury note 10 the Court ized that sets him from the man questions added.) (Emphasis also, We do not reach here the on the street.” See id., presented sys- would be were the notes 15 and 16. Ripon plaintiffs here lenged The individual as unlawful. personal This higher plane. They allege no on stake is what the stand Court has consistent- injury pertinent to them- specific ly a complainant no held enables authori- No statute authorized the tatively selves. to a court a com- this action them. There plete institution perspective upon the adverse right of a any no denial has been consequences flowing from the specific plaintiffs to a seat in individual set of facts undergirding his griev- Convention. Indeed a na- ance. Such authoritative presenta- convention is under no obli- integral tional tions are an part judi- any Ripon receive of these gation process, cial for a court must rely on delegate, as a as Cousins v. plaintiffs parties’ treatment of the facts and 477, 488, Wigoda, claims before it to develop its rules of (1975) makes clear. Only law. concrete injury presents the factual context within which a ground of alleged aggrievement is court, by parties aided argue who abstraction.5 These a mere individual context, within the is capable of mak- predi- Ripon plaintiffs afforded no ing (Footnote decisions. omitted.) action the courts. They cate for position any in no different account public.6 member of the II

than is It seem inevitable that their would action assume, Even were we to contrary to They lack standing be barred. should I, has been supra, what said Part the test laid down in Schlesinger within Ripon plaintiffs these have standing, we War, Stop Reservists U.S. are nonetheless bound to order that their 220-221, 41 complaint be dismissed. The issue (1974) where the Court said tendered, my view, have nonjusticiable.7 is simply injury, Concrete whether actual or

threatened, is that indispensable ele- There is much more involved in par- dispute of a ment which serves in part ty’s national convention than its merely to cast it in a form traditionally capa- nominating candidates for the presidency judicial ble of resolution. It adds the and vice presidency. That convention, essential dimension of specificity (perhaps most importantly, at least on dispute by requiring occasion), that the com- will be upon called to set forth party plaining particu- political suffered a the aims and objectives of the injury lar caused political party action chal- and its adherents.8 here, controlling sure, 5. While not play to be judiciary. even ducks and drakes with the “apportionment” setting, Carr, in 186, 267-268, an Mr. Justice Baker v. Frankfurter undertook his own (1962). definition of deemed to be an what he abstract claim. The Mellon, 6. Cf. Massachusetts applies light here in term of our record. Even 67 L.Ed. 1078 respecting apportionment issue, a state Mr. repetitively put ground I will not cover Justice Frankfurter it thus: which by my colleagues, has been so well treated hypothetical . The claim is and the Judges Wilkey. myself Tamm and I find in assumptions are abstract because the Court feel, substantial accord with their views. I vouchsafe the does not lower courts —state however, aspects problem that certain of our guidelines formulating spe- and for federal — may analyzed. be further cific, definite, wholly unprecedented reme- litigations today’s dies for the inevitable 8. Freedom to associate with others for umbrageous disposition political is common bound to advancement of stimu- beliefs and clearly politically protected activity. ideas late in connection with is motivated Cousins v. 477, 487, reapportionments many Wigoda, in so States. setting, promulgate jurisdiction concurring justices such a Three meaningless. right the abstract is It is saw the of party as devoid members of a reality brooding gather omnipresence as “a of a national convention to conveys sky,” very for it no be at the heart of intimation what the freedom of assem relief, bly association, any, capable if a District and id. at 95 S.Ct. 541. Powell, J., observed, affording legislatures that would not invite id. at 95 S.Ct. at election, presiden- in an strength management To succeed of the con- vention, populous in a and additionally nominee nation will tend tial to en- possibilities as diverse as ours must of garnering interests hance state, states whose electoral votes electoral vote state carry the and cumula- cumulatively provide victory will result in tively thus election of the presi- party he seeks and which the ad- nominee. The dential candidate and the But is not all. adherents party bring desire. who can herents about nominee, in presidential addition to result will achieve the very That purpose candidacy, will his own be ex- which assoeiational promoting significance party and its recognized protected. adherents to pected Not to be for- to the election of United contribute is the fact that gotten the electoral vote and members of the particular Senators state may States turn upon expected who will to assist in plurality, small, House mere no matter how accomplishment of the party’s pro- that state’s voters. Allocation of dele- Long the national gram. gates before conven- to such states—and the selection tion, hustings, seating10 via televised ap- of such as can debates, through published local peals, in advance “the cause”—will seldom be out otherwise, party among party statements candi- of mind leaders of either major party. national office as well as popular dates for The ultimate will, course, Congress and for of both branches ascertained at the election it- recognition, self, will have reflects the gubernatorial collective mind of the voter, arouse the electorate and sought to to American repudia- success or party candidate, adherents. The allocation recruit tion of the or the party will delegates will thus serve a twofold follow.11 purpose. Organization public thought and the Taking account of what a party may presidential of voters behind the

rallying seek to do and what its adherents think program and his will nominee become it should do to accomplish only appeal not essential objectives, may we not wonder what independent but to voters and members steps open to a court to manage the opposition members of an party.9 even to party’s convention composition in dele- truism that any par- It is a fundamental allocation or otherwise? gate Success is voting support seek to maximize ty must seeks, of course. In light what the already registered Ap- from its voters. saying, and hav- we have been what enough to local constituencies often peal some three decades period ing over through leadership can be marshalled al- ready recognized quali- there because of status, minority no more than a gained made long ties since evident. Republican Party adopt- in 1972 had ed program rules and a

Recognition designed, such individuals dele- it was thought, to improve its status gate allocation add and to Party Wigoda, supra, of the voters. 488, Convention Cousins v. National that may “[t]he at pleases, . . it and see whomever Mr. seat Justice Powell remarking id. at 95 S.Ct. at that presidential 9. Consider results in the 1972 Party National may “[t]he Convention of the Republican election when the candidate pleases seat whomever it . . . converse- per carried Louisiana where 97 cent of the ly, delegates who deem themselves and their registered voters were Democrats! Disillu- repelled by inhospitable views convention with a candidate and sionment his announced may even “take a walk” from their own program intangible can be an factor. Republicans as the found out in 1912. 11. Most of us convention, need not even all, “look may 10. at A the after refuse to seat years record” to recall the two “disaster” party’s potential deemed hostile to a presidential nominees, respectively, the disruptive candidate and the Re- objec- of the publican in and the likely Democratic in support tives or 1972. among to diffuse the aster. At its best it is a mystifying from It clear success.12 achieve that distorting presidential factor and us, supra, before note record the may which a popular elections resolve plain- the Ripon shared largely views victory. into an electoral defeat At length during the its at presented were tiffs to open corruption worst it is local finally reject- were and and manipulation, flagrant once so four as ten to to of nine hundred vote by a ed stability threaten the con- country. Losers at the thirty-four. hundred abolish it and pro- To substitute direct equal of elec- claiming a denial vention, President, tion so that every to Ripon plaintiffs moved tection, wherever cast vote would have courts, equal we are.13 and here weight calculating result, would Justiciability ordered of state gain me a for simplicity seem to area proceedings in this regulated integrity of our governmental con- present guidance no us afford processes. to have acted and Congress text. Were composition of the regulated to have After the order had been entered that major convention of case be set for hearing banc, en we totally before us a would party, the Democratic invited National Com- supposed may It problem.14 different as to amicus submit a mittee brief and percep- have been more jurists few argue. We directed attention to cer- Mr. Justice Jackson the late than tive specific points including tain those of the “one man-one realized who standing and justiciability. Recognizing scrapping the involved approach vote” there are issues involved this liti- providing system electoral present upon which gation bear the “traditional” Dis- the President. election of for direct political parties of role and the “tradi- Blair, Ray senting of the political nature tional” process, 96 L.Ed. Amicus told us brief “the Democratic wrote: he (1952), Party has a vital interest actions taken this court and demise the whole electoral welcomes impress opportunity would not me a dis- views.”15 system replete Realignment delegates’ with be selected. may record is evidence of Our votes 12. support Party’s approach. among delega- In follow after its motion for consultations judgment, appears summary Party’s from the tions different states. there Coalitions can Facts,” powerful enough of Material and turn out to be J.A. Ad- eventuate “Statement carry day. ditionally, supplied history circumstances, at In J.A. 193 is such it presidential year, allocations in each seem difficult ascertain whose vote is commencing year being through with the “diluted”! evidentiary materials Various include the affi- Voting Convention Decisions Stagg, J.A. davit of Tom its detailed Records, Parris, 2d edition R. Bain and Party’s 30; explanation of the new Rule reported Republican that in the Con- of William Cramer affidavit supplemented C. at J.A. vention, ballot, after a first 595 votes had been Reagan that of Governor at in favor of cast the nomination of General Ei- 233, that of Tower Senator at J.A. 237 and J.A. necessary senhower when 604 votes were Ford, Minority R. that of Gerald Leader The chairman of decision. gation the Alabama dele- House, J.A. 251. Exhibits and statistical yielded Minnesota, State of data, complete culminating tables with the delegation thereupon chairman cast of the Chairman of the affidavit votes for General Eisenhower. Nomination Committee, Dole, National Senator Robert J.A. was thus achieved. 274, describing the efforts of the respecting system consensus achieve a Congress so; But never done and see delegates. allocation 3, supra. footnote if courts were somehow 13. Even to fashion delegates, readily recognize We of there can can be no con- that “vital an allocation inter- g., Consider, delegates Many those will est.” e. that the trol how vote. over Democratic Na- adopted to tional Committee has come the convention committed will have to its rules for the delegates or of to the sons” even to have been allocation 1976 “favorite hostile to Democratic ultimately Party’s National Convention. The promulgat- of the candidate to the nomination

595 party’s shaping its own flexibility in of the decision of Amicus continues organization. court, accepting jurisdic in the district holding in the claim asserted tion and may conclude party may One that one justiciable, represents a to be Appellants strength a certain area where seek the historical reluctance departure from upon a and dependence liberal urbanized in the political proc to intrude courts expected, especially can be appeal ess, of racial discrimina in the absence past performance, yield light of clear state action. It is the view tion or The party very effectiveness. greater Democratic National Committee of the may oppose judicial interven- properly departure such a is both unwarrant political process where in tion in the ad- Because of unwise. the well-es ed and of nominating business can- dition rights po tablished First Amendment didates, rights “vital” of association adherents, and their litical by the Constitution are also guaranteed judicially manageable the clear lack involved, v. Wigoda, supra, Cousins 419 any question involved in standards 541.16 at It would allocation, this court should party, that a it follow be Demo- seem adopt expressed the view in Irish v. Republican, clearly position is cratic Party, Democratic-Farmer-Labor 287 decision-making access to the to limit (sic) (D.Minn.1968), aff’d, 797 F.Supp. of the in order best processes (8th 1968). 119 Cir. The court F.2d party’s the interests of the promote ad- refused to intervene in a dele in Irish who may Just be cannot herents. matter, and expressed allocation gate accurately be determined even political process is view that best itself, seem, and would all the compromise and by the consensus served clearly, problem nonjus- that the more political parties. institutionalized inability because of the ticiable at 2. Amicus Brief the party’s constituency. to define courts Asserting position of the Demo- I have Committee, enough said Amicus to predicate cratic National co- my conclusion that the argued questions issue gently nonjusti- involv- here is ciable.17 ground, On that delegates I ing the allocation at a na- would re- judgment verse the policies will reflect of the tional convention District Court and order that the subject change Ripon plaintiffs’ develop- which are com- plaint least, ment, dismissed. part, Even correctly because of decide on the merits that changes constituency. in a Asso- Republican delegate-allocation prerogatives ciational include retention formula is Carr, 3,006 supra, In Baker v. shows that there are to be dele- ed table U.S. at gates for the 1976 the Court summarized authorized convention. The factors to be including largest nonjusticiabil- largest considered in a states the nation’s determination of ten 1,608 ity. Merely delegates. have been accorded to hold that cities Rule 30 states, clearly enough, rights Ripon plaintiffs violates no From those reflect- would preclude yet ing past experience challenges by as to the sources of its seem not to other strength, groups, irrespective voting other the Democratic has allo- which of the ma- delegates jor parties thus: be involved. those See note cated su- pra, where from ten States will con- California Ohio majority more than a stitute New York Texas delegate strength exclusion of the other Pennsylvania Jersey New forty States. Illinois 169 Massachusetts Michigan holding nonjusticiability, A on the other Florida hand, speak to would all and make clear that a delegate-allocation plan, rationally evolved, Post, Washington March See reflecting constitutionally pro- valid and “Delegate Plan Outlined Democrats.” objectives beyond judicial tected Cf., Frankfurter, J., dissenting, modification. Brown, 1, 4, 5, 16. And see O’Brien v. Carr, supra, Baker 369 U.S. at 596 challenge so successful will tions are not divorced from the activi-

impervious think, I states in presiden- this case. absent ties of the conducting conclude negate as discrimination of elections invidious tial the existence or other racial dimension, that we should action.” 447 of state F.2d at 1276. I constitutional type challenge, instant further believe that dispose pro- all. in the area strongly and for nouncements indi- once position that this is no longer cate tena- Cir- with whom Judge, TAMM, Circuit ble. (concurring joins Judge ROBB cuit we Georgia, In reached our “inclina- result): the grounds. first, tion” on two involv- court the disposition the with agree I ing three-step analysis, began with the direct- we must reaches, but believe the postulate, drawn from Texas White the issues which preliminary confront ly Cases,1 Primary the activities of merits. the reach over to passes majority parties state constitute state ac- vital- reassess we should Specifically, as tion “insofar those activities touch govern- holding of previous of our ity upon machinery whereby candidates recognize area and in this action mental parties are nominated to seek prob- justiciability impact full local or national election to office.” 447 lems. Our premise F.2d at 1275. second was “a action state in selecting I delegates to its national convention is Eight registered individual Republi invested state also action since the Ripon Society, (collec cans and the Inc. primary delegates’ function is the nomi- tively referred to as Ripon) challenge the of candidates nation the nation’s delegate apportionment plan, 30, Rule highest offices.” Id. This premise was adopted by the 1972 Republican National the assumption grounded that dele- Convention, Convention for 1976 processes gate-selection were imbued equal protection violative of the guaran quality with the same state action as tee of the fifth and fourteenth amend processes; candidate-nomination while to apply ments. order these constitu recognizing that courts had divided on against tional restraints the Republican question, we found the analogy “a National and Committee (Republi one.” compelling Finally, close we cans), Ripon must establish the presence if “the reasoned action indi- governmental state or action. To do state in selecting delegates vidual so, Ripon principally relies upon two presidential-nomi- participate circuit cases which found the ac nating process action, constitutes major political tivities of the parties to activity of the collective all the states’ governmental action, constitute Georgia delegates national convention can National Party, v. Democratic 145 U.S. readily no less classified as state ac- 102, 1271, 447 App.D.C. F.2d denied, cert. tion.” Id. S.Ct. (1971), and Bode v. ground National Our second derived Democratic from Party, U.S.App.D.C. 373, responsibility the states’ F.2d conduct elec- (1971), denied, tions, I, cert. pursuant to article section U.S. 684, 30 92 S.Ct. twelfth amendment. I Since the was a member of the choice in the general unanimous division “electorate’s elec- Georgia, effectively where we stated that “in tion is restricted to the nomi- explication [major] absence further two parties,” nees of the Su preme states, Court on this point, by placing major parties’ incline to ballot, conclusion that names on the National nominees’ Conven- Adams, Condon, Terry Nixon v. (1953); Allwright, (1932); Herndon, L.Ed. Smith Nixon v. L.Ed. 1152 U.S. (1944); L.Ed. 987 71 L.Ed. narrowing process inte- and It has this as tion restraint. been under- adopted proce- their election since our national par- stood related grally Therefore, opined, “every we being ties first came into voluntary as dures. nominating process especial- associations of individuals that step in — of how convention is the proper determination itself forum crucial ly the determining intra-party each state disputes votes as many product delegates as much a to which shall be seated. allotted—is to be Thus, if the states themselves these cases involve action as claims of the state prelimi- power to conduct such of the federal collectively judiciary to re- were view actions heretofore thought to lie nary conventions.”2 political parties. in the control of Bode, the division followed the In Highly questions important holding. Georgia state action 452 F.2d presented concerning justiciability, Notably, neither case did at 1304-05. whether the action of the Credentials However, relief. plaintiffs accord action, and, so, Committee is state if this following year, court intervened the reach the Due Process Clause in Party dispute Democratic in an internal unique rights this context. Vital challenges the California Illi- and over guaranteed by association the Consti- delegations to the convention. nois tution also involved. While the O’Brien, 152 U.S.App.D.C. v. Brown is unwilling Court to undertake final (1972). The F.2d 563 division had important resolution of the constitu- concluding difficulty that defend- “no questions presented tional without full against these action ants’ briefing argument adequate action,” at id. found state deliberation, opportunity for we enter- parties’ decisions to exclude grave tain doubts as to the action tak- delegates violated process. due certain Thereafter, Appeals. en Court of Supreme stayed Court 4-5, (footnote at 2720 Id. Brown, v. O’Brien judgment. our omitted). later, citations One month U.S. Rehnquist stayed an Justice earlier dis strong language, the Court noted holding granting trict court relief in the as to the doubts” correctness of “grave judiee, part sub case based “the on our action: below,” error in the probability result must consider the absence We also citing quoted above passage from authority supporting the action of O’Brien. State Central Com Appeals intervening the Court Ripon Inc., Society, mittee determinations of na- the internal 1225-27, (1972) political party, the eve of its tional Justice). Circuit (Rehnquist, convention, seating regarding Thus, case is cited to us in delegates. No the Supreme Court strongly has court has under- any federal suggested if confronted with the interject itself into the delib- issue, taken it would reverse our holding on of a national processes Ripon disputes erative action. this charac- convention; holding no of this Court and contends that terization the Court’s support judicial now criticism in O’Brien was up gives aimed at timing circumstances of our intervention intervention and its focus here, involving party dispute, do on an internal presented relationships not the holding great delicacy that are of state action. Appellants’ See essentially political in nature. Judicial pursuant Memorandum to Order of 14-15; area traditionally Note, in this March 1975 at intervention Presi- great Nominating cau- approached been dential Conventions: (footnote omitted). 2. 447 F.2d at 1276 While where states election, nomination was tantamount recognizing opinions we did not believe that factor was theory supporting one-party arose enough distinguish those cases. Kester, Constitution, Constitutional Law and the See Restrictions Rules, State Parties, on Political Va.L.Rev. 1636-37 Com 62 Geo.L.J. (1974). Upon reflection, further Wigoda, 419 I Cousins pare (1975) generalizations think that culled 95 S.Ct. rest on (Rehnquist, from those cases less than firm at S.Ct. with id. However, we J., concurring). ground. need not on one of these dif settle dispositively First, those cases all involved racial interpretations, for even fering assuming discrimination, prime a target of the preclude not reaffir does that O’Brien fourteenth and fifteenth amendments, Georgia holding, other of our Su mance practical with the consequence that a analysis precedent and preme Court degree lesser involvement trigger analytical underpinnings so eroded See, scrutiny. constitutional g., e. holdings that I believe alternative both Greenya George Washington Universi justified longer adhering in we are no ty, U.S.App.D.C. 379, 512 F.2d them. (1975); Jackson v. The Statler Foun dation, 496 F.2d (2d 628-29 Cir.

A 1974), denied, cert. 420 U.S. 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). allega No Georgia holding basis our The first tion of racial discrimination is at issue political parties’ was that state activities Second, here. the White Primary Cases concerning nomination of candidates con- place during all took a one-party era in action; we state invoked the stituted Texas when nomination in reality was Primary Cases to support White tantamount to election—the primary was However, O’Brien, in proposition. the election. This is certainly not the characterized those cases as in- Court situation at the national level. of “invidious volving claims discrimina- in primary based on race a contest tion Finally, the two Nixon cases involved single within a at 4 State.” U.S. n. state statutes which directly controlled (citations omitted). at 2720 92 S.Ct. activity in question,3 and Allwright dramatically a different proposi- That is Terry were fifteenth amendment from than we drew those cases. cases, tion involving vote; the right be- Moreover, criticized, we have been per- integral cause relation between justifiably, citing the White haps Pri- primary and election in the one-par- mary indiscriminately, Cases without dis- state, ty the Court found a constitutional between those tinguishing which turned The appropriateness of in- violation.4. rights amendment on fifteenth those voking these cases in the case at bar equal protection. were based on which questionable becomes as the importance Herndon, Allwright, primary eligibility In In Nixon the Court struck down had been de- equal protection grounds termined However, a Texas state stat- convention. finding explicitly barring participation in heavily blacks from Court state action ute relied Party primary regulation on the state’s pri- detailed Democratic elections. of those 536, 540-41, maries for its S.Ct. conclusion that L.Ed. 759 decision, (1927). agency passed “an After Texas State so far as it deter- every participants granting political party primary mines the statute in the election.” 649, 663, 757, 765, power prescribe qualifications 321 U.S. state “the 88 L.Ed. (1944). Terry, Court, though split ... of its own members to vote or oth- proper analysis, participate on the erwise in such extended fifteenth holding whites-only adopted Jaybird amendment . .” The Democratic only” primary Democratic Association rule. The “whites Court in Nix- conducted power prior straw-vote found that election on v. Condon to deter- to each Democratic statute, primary, qualifications invariably derived the winner mine from the of which tri- umphed excluding primary gener- and the resolution blacks Democratic was there- fore state action in violation of the al election. fourteenth 73 S.Ct. amendment, 75, 85-89, L.Ed. 1152 76 L.Ed. 984 question presented than the ly different presi- authorizing statutes 374-75, 30. 372 U.S. by Rule tan- process appears nominating dential Kester, 801; supra, 60 Va.L.Rev. at see appor- involves Rule 30 as gential,5 763; Developments, supra, 88 Harv.L. voting delegates, not actual tionment n.41. Rev. at 1158 Thus, Primary the White processes. authority for the strong Moreover, Cases we advanced proposition clear, the general recently made mere fact that Georgia. regulates aspects some the state of an

organization does not make its activities general I cannot extract a Jackson v. Metropoli also rule state action. See other, relevant, Co., arguably from Su tan Edison directly (1974); Court cases not 447 preme Lodge relied 42 L.Ed.2d Moose Irvis, Georgia States v. v. 407 upon Clas No. 107 U.S. 92 S.Ct. —United sic, 627 S.Ct. must U.S. L.Ed. There (1941), Gray Sanders, v. nexus between 372 be sufficient the chal 801, 9 L.Ed.2d lenged regulation. action and the state U.S. (1963). Metropolitan Co.,

Classic reversed the dismissal of Jackson v. Edison su against indictment a state at pra, an election S.Ct. 449. Clear falsely for counting primary exists ly official bal no such nexus between that primaries lots on the basis and the were state statute allocation of dele part” “integral an of the gates Republican such to the election Convention. right that the constitutional process to This conclusion underscored Cous However, extended them. where Wigoda, supra, vote the ins the v. holding was firmly grounded the Classic in found that “states themselves have protection right constitutionally the article I to no mandated role in the elections, congressional vote in of the selection of great which task Presiden private interferences, extends to also and tial Vice-Presidential If candidates. proposition thus cannot stand the qualifications eligibility of dele nominating procedures all closely gates that to National Political Party Conven to general elections related constitute left state law tions were ‘. 314-15, action. 313 at fifty state U.S. 61 each states could establish 1031, see Developments delegates of its qualifications S.Ct. the the Elections, 88 Harv.L.Rev. party regard various conventions without Law— Gray, obviously In party policy, 1158-59 device at intolerable ”6 protection equal grounds, tacked the result.’ unit-voting system, directly imposed sum, first I must conclude that the Party by Democratic on the statute if conclusion that the step led our that primary. chose hold The finding conventions were of national regulation decisions proximate unjustified simplifi- was an challenged state action device constituted state ac authori- inconsistent unsurprising, but is also cation tion doctrinal- delegates decision count, provided by and whether cation nineteen states last 5. At another, presiden- action. statute, state constitutes form in one states have primaries. Nineteen other tial Wigoda, v. 489-90, Cousins providing for state conven- statutes 541, 549, (1975) (footnote delegates to the National tions from citing omitted), Wigoda Cousins, chosen, leaving the selection Conventions (N.D.Ill.1972). F.Supp. The Court also rules. Twelve state proposals noted recent use re on the sub- statute whatever have no states gional primaries or national to choose these Thus, Supp. Br. at 13 n.5. at ject. n.9, nominees. U.S. at 490 95 S.Ct. 541. vary best, degree state action should Moreover, none of these state-to-state. from judice, issue sub the allo- on the bear statutes ty.7 Without this syllogistic Metropolitan In Jackson v. prerequisite, Co., Edison our first state action holding supra, petitioner challenged must fall. utility’s of a

termination customer’s service on process grounds, alleging, alia, B due inter action was present because Our alternative state action holding the termination had been performed pur- process on the electoral was based itself. suant to a tariff accepted by the state. in that linchpin argument is that Court, rejecting this suggestion, states, by as a adopting necessary “[a]pproval found that by [the state] adjunct procedures their election put . where its own [it had] narrowing process performed by par- weight on side of proposed prac- placing through ties nominees’ it, ordering tice does not transmute a ballot, names on have made the par- practice initiated the utility ap- ties’ activities their own. Since the ” proved by the into ‘state action.’ [state] decision, Georgia Court has at 457. The held that states have compelling Court held that where the initiative enforcing interest this narrowing private comes from party no state process. See American of Texas present. action is White, 767, 780-81, Similarly, (1974); every 39 L.Ed.2d 744 Storer v. action taken by any Brown, 724, 736, 94 1274, 415 U.S. S.Ct. individual which aids the state in its nar- (1974). rowing 39 cases, however, 714 All function cannot those be deemed state action; dealt with the actions taken connection between the pub- by lic private the states themselves and were and unac- entities must be more by specific companied and direct. question.8 state action That connection is fact, not here. In the relevant recent The nominating Su- func- tion preme point Court decisions in is not traditionally performed a di- states, opposite Georgia rection to our nor conclu- are they particularly sion. interested in the mechanics the nar- Note, Man, apparently Ga.1968); also Cousins undercuts One Vote and One Se step analysis Delegates Georgia in Nominating second our to National anal- lection of —the 536, delegate-selection Conventions, ogy processes between 37 U.Chi.L.Rev. and 538 — 45 Note, processes. (1970); Safeguards disposing candidate-nomination In Constitutional argument Delegates protecting of the that Illinois was Selection of to Presidential its Nominat Conventions, 1228, compelling process, ing interest in the electoral 78 Yale L.J. 1232-35 Lynch (1969). Torquato, the Court stated: v. 343 F.2d 370 Cf. 1965); (3d Irish v. Cir. Democratic-Farmer-La special Consideration of the function of dele- Party, F.Supp. (D.Minn.), bor 802-03 287 gates per- such a Convention militates aff’d, (8th 1968). 119 399 F.2d Cir. But see suasively against the conclusion that the as- Washington Maxey v. State Democratic compelling a serted interest constitutes state Comm., F.Supp. (W.D.Wash. 1970). Delegates perform interest. a task of su- clouds Cousins also the correctness of the preme importance every citizen of the Na- analysis. step Georgia third in If the regardless tion of their State of residence. pri- enforce states cannot the results their The business of vital the Convention is the maries, question is there some whether Party’s of the nomination candidates for the conventions should be acts of national con- offices President and Vice President of the acting of the sidered those states concert. end, politi- To United States. the state cal are with “affiliated a national recognized also 8. The Court has that the states through acceptance of the national call constitutionally their cannot effectuate interest delegates to send state national con- rigidly in a manner too restricts access Blair, Ray 214, 225, vention.” 343 U.S. See, process. g., and electoral e. ballot 654, 659, (1952). S.Ct. 96 L.Ed. 894 Carter, Bullock v. S.Ct. singling 419 U.S. at S.Ct. at This (1972); Ogilvie, Moore v. 31 L.Ed.2d 92 delegates’ “unique out of convention task” dis- (1969); S.Ct. sipates strength analogy we relied Rhodes, Williams v. upon Georgia. See also Smith v. State Comm., F.Supp. (N.D. Exec. 374-76 a finding absent of racial long byas the general discrimination, so rowing process, receipt the mere of government election, complexity size and funds is enough to Thus, not dictate that finding. im- See, within reason. is is ballot g., Greenya e. v. George Washington to conclude possible University, supra; Junior performing delegated a Chamber conventions fact, Commerce Missouri State function. governmental Junior Commerce, Chamber platform promulgating and 508 F.2d adopting (8th 1975); 1033-34 Cir. their choos- Wahba v. govern New rules University, York 492 F.2d (2d who best repre- bearer ing standard Cir. 1974). There must be a sufficient party’s ideologies prefer- sents the nexus government before the can ences, engaged activities considered joint participant in the challenged first which the amendment bars ac with tivity. See Moose Lodge No. 107 v. interference. Ir When governmental most vis, supra; Burton v. Wilmington coupled is with the Park analysis Cousins this ing Authority, that the state cannot holding enforce The against funding of interests the national supposed conventions does not supply joint I must conclude neces- party, participation in the case sub judice, relationship Rule sary integral between since funding is authorized regardless lacking.9 the states 30 and procedures the convention adopts. Georgia fact that neither of the are now tenable does not end holdings Similarly, regulatory pres the federal analysis, action since there is trigger gov sufficient to ence source possible governmental finding. regula another action ernmental tion, constituted, area—the federal involvement presently has no con years Recent have seen government. question11 activities in nection increasing regulatory financial meet the level the Court does not by the government federal involvement necessary indicated is for a Jackson find process, culminating in Further, in the electoral governmental action. ing Campaign Election Act regulation sufficiently Federal the tailed, de 93-443, P.L. Amendments are the nor benefits federal 1263. Stat. derives from the conven government significant enough, activities so tions’ Under version federal the existence of could find a major parties’ conven- regulations,10 relationship constitutionally symbiotic tions, starting in will probably be “entanglement” recognizable between totally by federal funds. funded id. See Compare Howard entities. Universi codified, 1294, as Int.Rev.Code of 1954 at Collegiate Ass’n, Athletic v. National ty argument While the could be § F.2d U.S.App.D.C. grant money this of federal made actions of convention sub- makes the scrutiny, summary, I ject to constitutional circuit must conclude Ri- again that, time and pon held cannot demonstrate the presence courts have states, many constitutionality noted that in provisions It also be 10. The should of these placed upheld part Buckley nominee is on the the national for most in Valeo, par U.S.App.D.C. 172, after certification state ballot F.2d (1975) (en banc), ty. granted,-U.S.-, violation in a constitutional review If there certification, procedures, it is not the these U.S.L.W. 3178 (U.S. 1975). grant of automatic ballot access Oct. the state’s remedy major parties’ candidates. The course, the 11. Of associational interests identi- not be interfere with the association should may preclude regulation, fied Cousins such parties, deny national but to al activities question explicitly open by opinion. left advantage securing their candidate n.4, 419 U.S. at 483 95 S.Ct. 541. Kester, place the state’s ballot. See Consti on Parties, Restrictions Political tutional Va.L.Rev. Confronting governmental question justiciabil- action in the adoption of Therefore, Georgia Rule of a similar claim ity I must concede that judicial holding we found judice, our review Georgia one sub was in error. because: problem appropriate of “state action” has al- ways doctrinally been a difficult and un- competent courts are to scrutinize the one; satisfying a commentator has called schemes promulgated by allocation action “a conceptual disaster national in order to determine area.”12 Recent Supreme Court deci- whether, given the of political context have, however, sions clarified the stan- partisanship out of which such formu- dards we apply must area, in this arise, necessarily las substantial devia- those standards dictate the conclusion equality voting power tions from at that I believe we must reach here. supported the Conventions le- justifications. gitimate

By this conclusion I do not foreclose (footnote omitted). 447 F.2d at that an possibility all action taken aby passage the Supreme Court’s major political party opinion or its national con- O’Brien, page set out on 4 supra, be judged vention will to be cited subject to restraints; approval Mr. Justice Rehnquist I constitutional endorse the Ripon opinion, in his evolving doctrine that casts doubt upon in racial discrimi- situations, justiciability our holding. Upon quantum nation recon- lesser sideration, I conclude that governmental we have involvement will trigger failed the import justicia- to face scrutiny. situation, constitutional In this bility problems in however, area. would I vote to reverse the judgment of district court for lack of Carr, In Baker supra, 369 jurisdiction. majority Since the of this 217, 691, the Court listed factors confronting court avoids this difficult make non-justici- which would a claim a question by assuming jurisdiction, I am question; able two of those fac- turn compelled to now to another issue directly expose tors the inherent difficul- requires scrutiny before considera- ty reviewing in a court’s a delegate allo- merits, tion of the and which the majori- cation formula con- ty glosses also justiciability. lack ventions' —the of judicially discover- over— manageable able and standards and the

II impossibility of reaching decision with- policy out an initial determination of a “Justiciability is concept itself a of un clearly non-judicial kind discretion. meaning certain scope.” Flast v. Cohen, 83, 95, 392 U.S. 88 S.Ct. A. Lack of Judicially Discoverable and (1968). 20 L.Ed.2d 947 It is a “not Manageable Standards legal concept a fixed content or In we Georgia, opined that we could susceptible of scientific verification. Its determine “substantial deviations from utilization is resultant of many sub equality voting poweF’ (emphasis add- pressures tle . . Ullman, . .” Poe v. ed); rejected we plaintiff’s since claim 497, 508, 367 U.S. case, we were never to forced (1961). L.Ed.2d 989 While its applicabili fact, test precisely. define the In I am ty “political question to the so-called doc Georgia afraid that our test is more eroded, see, trine” has g., been e. Powell promise reality than and could never be McCormick, v. applied accurately to a challenge to (1969); Baker v. delegate allocation formula. Carr, 82 S.Ct . First, impossible is (1962), it to L.Ed.2d 663 is define the there no reason to Morgan,constituency equality whose voting assume Gilligan its demise. See v. 1, 11, power attempting we are to protect. 4 possibilities of the obvious None is satis- Foreward, Black, Harv.L.Rev. Court — point, belaboring nomi Without most obvious is the class fying. The not meet this nating conventions do cri particular registered members of writing platforms Neither terion. however, level, at the national party; candidates nomination of is a nor be- to succeed must reach both A function. convention is governmental mostly dependable adherents yond these body.13 Delegates representative not temporary allegiance of the gain to at the not be elected. Once con need fact, independent vote. to so-called vention, to subject statutes, certain state its force the define representing any constituency, instead as its members constituency registered agents,” “free able they are coalesce minority sta- consign would issue of any candidate or their around tus. Finally, any representative choosing. voting Using equally results is unsatis- they may have can be completely role recognized “Elu- fying. As in Bode : if the convention exercises its undercut past voting sive too is utilization of seat v. Wigo not to them. Cousins right political phenome- patterns transitory — McKeithen, da, cf. Zimmer v. supra; population ascertain current na—to 1973) (5th (en 1304 n.15 Cir. F.2d aat conven- represented to be banc). Education/Instruction, also See (footnote at F.2d omit- tion.” 452 Moore, (2d F.2d 1187 Inc. Cir. ted). possibility The final is to define denied, 1974), cert. voters, constituency as all the relevant (1975); 783, 42 Davis impose criterion on but to Telephone Telegraph American deny any ideological be to it would (2d 1973). Co., 478 F.2d Cir. choice, which a choice lies at the heart of Hence, what this boils down is: party’s first amendment associational if Thus, constituency could be although proper the Bode divi- deter- freedoms. mined, recognize satisfactorily, which it cannot implica- sion the full did analysis, apt: equality basis for could be tion of its comments are if the settled one-man, to be which would not include represented upon, “the individual [is not] except loose, principles, perhaps then conceptual identifiable one-vote identify ... To and count could scrutinize “deviations” to en- sense. court upon “legitimate are based potential impossible, requir- Democrats sure However, even this ing clairvoy- but unavailable in- justification.” desirable infeasible, since involves quiry 452 F.2d 1306-07. ance.” political policy determinations. court The second undefinable standard is the against determination basis Policy B. Determinations Requiring plan allocation is to be Non-Judicial Discredit tested, assuming relative con- even parties are Political formed for two stituency could be ascertained. “One major purposes (1) to associate with man, principles, one vote” as our breth- — like people ideological persuasion concede, not apply. ren do The Court attempt (2) implement their ideo- stringent those has held standards goals logical electing candidates who gen- on bodies which exercise bear objective. that Both share functions are See, powers. g., governmental eral e. under protected the first amendment. Lake Salyer v. Tulare Basin Water Stor- depends Their effectuation on a series of District, 410 age U.S. by choices made its political members. (1973); 35 659 Hadley L.Ed.2d v. Junior District, fact, it fairly 397 90 In could be College U.S. said that a objectives twin party’s ideological pu- that, McCormick, important Compare is unlike an Powell v. 13. One difference governmental body, (1969), to a elected a dele- official with Wigoda, gate supra attend to a national convention v. note 6. selected Cousins body apparently force him. cannot to seat non-justiciable political question. electoral success are often in- rity and Irish a party Party, and that compatible must strike v. Democratic-Farmer-Labor (8th Cir. goals 1968). between both F.2d compromise opt Similarly, a expense at the of the district court Smith for one other. For the v. State Exec Committee, example, F.Supp. results utive Demo- relief, Republican (N.D.Ga.1968) and 1964 denied alia, cratic Presidential inter partially be the basis that “there is no campaigns explained by known case to any jurisdiction to decision seek effect parties’ ideological exists expense management at over the internal rules or purity electoral attrac- political party.” Finally, of a Circuit, tiveness. Third recently a reversing district Judge opinion McGowan’s advances enjoining decree a court delegate state justification some and to allocation conven systems which underlie the choices bonus tion, stated: plaintiffs attacked this case. given a point poten- all If organize The crucial these chooses districts, but tial decisions—whether reward the id- allocate delegate faithful, eological strength farmer or to a district urban dwel- in which it has whether encourage ler or fewer numbers but a greater opportu- electoral by rewarding those nity practical success local to achieve the advance- actually carry ticket—are es- ment ideas for the pur- sentially political accommodations. As suit of which association was such, they are formed, a fundamental action exercise of state which frustrates rights; first amendment second-guessing highly suspect. choice is accuracy by the of their judiciary is both Redfearn Delaware State and an impossible unwarranted deviation Comm., (3d F.2d 1127-28 Cir. from our constitutional scheme. 1974). Lynch Torquato, See also Moreover, already there (3d 1965). exists cor- Cir. F.2d recting mechanism in the system—the I would concur those assessments as long political parties ballot box. So the question conclude that plaintiffs to elect candidates exist and effectuate non-justiciable.15 they will never programs, overly ex- Ill clusionary long. judiciary too need should paternalistically not and in- quarrel I no majority process.14 with this terfere I on the merits. Were to reach opinion them, Judge I would find McGowan’s posture This non-interference has persuasive. both attractive and opinion However, by courts hearing been followed claims attempts despite best involving party affairs. Eighth Cir- litigation, further I fear that deter declining reapportion cuit, the Minne- “reserving” questions of state action delegates to the sota Democratic Nation- justiciability, majority ‘make Convention, found case to be a al open case does not A caveat—this invid- concern has been to the courts since the exclusion, race, alienage such as or na- ious tional enactment of the Fourteenth Amendment to determine, must, origin. might change particular Such a case both if on the facts analysis previously state discussed action poli- that a discrimination refíects no appropriateness judicial cy, simply arbitrary capricious interfer- and the ence. ac- However, we intimate no views con- tion. disposition cerning citing the ultimate such case 447 F.2d at shown, the benefit of agree without text concrete factual con- 691. If action were I us. before that we could scrutinize even tion schemes for alloca- totally arbitrary action. Georgia, took note of lesser we also 15. However, not, not, plaintiffs they clearly do can- justiciability Baker v. Carr: test from claim, argue make that but that devia- Equal legitimately justifiable. under the Protec- are not standards tions That Judicial familiar, developed non-justiciable and are well claim under Clause Baker. tion opinions question into our called my inevitable. For also litigation part, such result, Georgia and Bode.4 As a reas requisite state action find the since I prior opinions is of our defi jurisdiction lack- sessment plaintiff’s necessary for nitely in order. that, decision rest our on ing, I would final, I, conclusively ground. more Aside from concern as to the substan- therefore, in the result of revers- concur previous correctness of our views, tive with court directions to ing the district majority’s find refusal to con- complaint. dismiss and resolve in this en proceed- sider banc ing the state action and justiciability is- WILKEY, Judge, Circuit with whom posed by sues this case to be unwise Judge Circuit DANAHER joined Senior By judicial policy. failing to resolve only.) in the result (concurring brought in a ease these issues sufficient- Although agreement we are in ly of the 1976 in advance national con- the District must Court judgment permit adequate deliberation, ventions to grants appel as it insofar be reversed we doubtless will face the unenviable relief, we would reach that result lants resolving questions task of these on the issues “state action” the threshold eve of a national convention under time “justiciability” and not on the merits pressures constraints and other recognize claims. We appellants’ would make reasoned deliberation diffi- Georgia 1971 held in v. Na court in this cult, impossible. if not Party1 that the alloca Democratic tional by a national delegates political tion I. Action State “state action” within the Fourteenth meaning of the Amendment The initial question threshold posed by justiciable controver represented challenge is whether there was suf- holdings were reaf those sy, governmental and that ficient involvement in the shortly thereafter in Bode v. Na delegates firmed allocation of to the 1976 Re- Party.2 Democratic National Convention publican trigger tional application equal protection guar- since, however, the Su the interim In antees of the Fifth and Fourteenth v. Brown3 ex in O’Brien preme Amendments. dispo about our “grave doubts” pressed opinion In our in Georgia v. National dealing case with analogous of an sition Democratic we relied on two ra- at the 1972 Demo seating of tionales for our conclusion that the allo- stay, A is Convention. National cratic delegates by cation of a national Rehnquist in his ca Mr. Justice sued party constituted “state Justice, action.” dealing with as Circuit pacity us, first rationale involved a three-part syl- presently before plan the allocation 102, 1271, U.S.App.D.C. the state and the termination of service. 1. 145 F.2d cert. denied, 858, the latter case the Court held that the refusal 404 U.S. 92 S.Ct. 30 L.Ed.2d private guest (1971). of a club to serve a black at its dining bar did room and not constitute “state U.S.App.D.C. (1971), 2. 146 452 F.2d 1302 despite action” the fact that the state licensed denied, 404 U.S. cert. S.Ct. liquor regulated the club to serve the club (1972). L.Ed.2d 668 particulars unrelated some to the discrimi- natory practices. argu- These two cases facts, (1972). ably distinguishable Court has also on their their conclusion, the cases of Jackson v. Metro interim decided thrust does reinforce our devel- Co., oped independently, politan Edison the states are not (1974), Lodge sufficiently Moose No. involved in the actions of 42 L.Ed.2d the na- Irvis, conventions. tional 107 v. In the former case the State Central Committee of Ari termination of service held that the Court heavily regulated Inc., Society, Ripon Application zona v. utility something ap Stay, 409 U.S. monopoly power proaching was not state ac tion, between actual connection absent some First, made logism.5 by we noted that “state ac- “decision the Democratic national participation at the level tion” inheres of state ... is to a in candidate nomination tantamount decision of the parties state- States in concert . . . acting election. In .”9 primary support of wide placed reliance was proposition upon Supreme In view of Court’s recent Primary line of the Texas White cases6 pronouncements, we are now of the view more recent and the the rationales articulated in Georgia Gray v. opinion in Sanders7 Given the incorrect, followed in Bode were secondly premise, we said that the state the actions of the national selecting delegates action in se are per conventions not sufficiently its national convention is also invested with state infused involvement trig- action,” since the delegates’ with “state protections ger constitutional except in function is to nominate primary candi- racial the context of or other invidious the two national dates offices. discrimination.10 activity of Finally, if the individual state selecting delegates partici- in primary difficulty Our with the first process pate in the nomination is “state ground Georgia opinion focuses action,” collective decisions made upon jump premise between two and delegates all these once assembled must the conclusion. Even if it be conceded “state action.” constitute that “the arguendo delegate-se- state’s Georgia for find- second basis Our processes lection are imbued with the was derived from the action” ing “state quality same of state action found in all, most, states utilize if fact that processes .,” candidate-nomination . . or- political conventions in national not follow that does actions of electorate’s choice in the limit the der to at selected such elections are election,8 e., narrowing i. general merely action” “state because they were party nominating process process. primary chosen at a subject to be state action ei- thought was thus constitutional constraints. engaging parties by (1) because ther process are undertak- narrowing in ing governmental Party participation in the electoral task akin to conduct- subject to process is constitutional safe- election, (2) because the ing primary process guards permeated because of the convention ratify the result states regulation. Gray Sanders, v. placement of its through the automatic example, the Court held the Georgia general election ballot. on the nominees primary election Democratic to be sub- opinion equal protection merely ject Bode to an reasserted attack be- Georgia Georgia the conclusions reached in cause “collaborates in the con- U.S.App.D.C. 105-06, 379, 383, 556, 5. 145 at (1975), 447 F.2d at D.C. F.2d we are 1274-75. agreement Judge Friendly that racial peculiarly and other invidious discrimination is Herndon, 536, 6. Nixon v. 273 U.S. 47 S.Ct. Amendment, offensive to the Fourteenth hence 446, (1927); Condon, 71 L.Ed. 759 Nixon v. degree lesser state involvement con (1932); 76 L.Ed. 984 stitute “state action” in that context. Al Allwright, Smith v. though we are not faced with such a case (1944); Terry Adams, 88 L.Ed. 987 here, specifically note that our views on 97 L.Ed. 1152 might “state action” well be different if the 7. 372 U.S. 83 presenting issue arose in a case a claim of race, religion, discrimination on the basis of Accord, origin, Syra or sex. Weise v. U.S.App.D.C. 8. 145 at 447 F.2d at 1276. University, (2nd cuse 522 F.2d 405-407 1975). Cir. U.S.App.D.C. at 452 F.2d at 1304. 10. As we Greenya indicated U.S.App.D.C. earlier 11. 447 F.2d at 1275 George Washington University, (emphasis U.S.App. original). parties Democratic have can and had a puts power its primary, duct on national monopoly office since 1852. party.” the rules behind monopoly their will Whether continue of a actions national con- questioned future has been into the are distinguishable vention or committee is particularly not some15 material not they similarly permeated because purposes, because if that mo- involvement by governmental regula- or continues it will not be the nopoly result law, federal, tion. There is state no or action. The recent governmental Bal- requiring party political a national con- Cases of the lot Access vention. Neither Federal Govern- recognized compelling state have inter- the States any ment nor seek to dic- limiting party ests in and candidate ac- tate the manner which a po- national However, ballot.16 they cess adopts platform litical convention or that recognized the states are also not Similarly, its nominees.13 there no to freeze in two permitted major governmental involvement at all with requirements nor set down parties that process. allocation The for- access independent so burden candi- here review purely mula under parties new dates would product party deliberations and ac- permitted not be ballot access despite compelled, and was neither tions restrict- public support.17 significant We are thus devised, ed, modified, or encouraged by led to conclude if Republicans any state statute ordinance. The na- and Democrats continue dominate being challenged decision tional politics it Presidential will because is thus not “in reality, this case the deci- majority of the the vast voters will con- acting of the states sions concert.”14 that the tinue to feel nominees of those private It is rather action party dele- their parties support deserve and their gates They and officials. may have been votes, because state election by process selected was sufficient- laws maintain them in power. ly regulated by government state play into constitutional call restrictions major (or minor) party Each is free to stage. However, the selection this adopt whatever scheme it desires—con- simply connection alone too tenuous to vention, primary, or lottery—in trigger Equal Protection Clause. the selection of its candidates for nation- ground the second Turning to ad- al office. That the states utilize the na- Georgia opinion, ques- tional party vanced in the convention choices as the go and conclusion. premise ballot, tion both nominees on the in- doubt that as a requiring petition There can be no histori- stead of or other Republi- device, nominees of the retroactively cal matter the does not transmute 374, 801, 368, White, Party 83 S.Ct. 9 L.Ed.2d 16. of Texas 12. 372 U.S. American v. 14, 1296, Chapman King, (1963), quoting from v. 782 n. S.Ct. denied, (5th Cir.), (1974). cert. 154 F.2d (1946). 90 L.Ed. 1025 66 S.Ct. U.S. Rhodes, 23, 32, Williams 89 is, (“The (1968) 21 L.Ed.2d 24 fact is, fact, any It doubtful that such scheme however, system that the Ohio does not mere- regulation of state or federal would be consti- ly ‘two-party system’; favor a it favors two tutional. In view the First Amendment as- particular Republicans and the —the involved, governmental rights regu- sociational give in effect Democrats —and complete monopoly.”); tends them a only be in lation could furtherance of a com- American pelling interest and even then would have to White, Texas v. be tailored to be least restrictive of the associ- (1974). Panish, Cf. Lubin rights Compare ational involved. Cousins v. (1974) U.S. Wigoda, (exclusion indigent of an from ballot be- inability pay fee). cause of an a fixed U.S.App.D.C. at 14. 145 447 F.2d at 1275. See, Broder, g., Party’s e. D. Over nominating proc- the national Feeble indeed is the “state function” state action. Jackson v. Met- ess into power no state has the control. Co.,18 ropolitan Edison where the perish seem to Thus would claim filing by utility accepted a tariff had containing National Conven- proviso for termination of tion’s allocation is in hearing, without a the court con- service way a “state function.” by the state of the approval cluded regulated utility’s reject would We it been of- —had privately selected ter- claim that the any recent amend- fered— procedure did “transmute a mination to the Internal Revenue Code22 ment as utility practice ap- initiated financing political of national to federal by the Commission into ‘state proved ac- imported has conventions element of ”19 tion.’ Rather, involvement. governmental con- alone, sidering financing scheme government nor federal Neither state opinion Greenya deem our recent in party to hold a any political ordered has George Washington University23 to be convention, prescribed nor controlling. reviewing After the cases or allocation of dele- of selection method discussing this issue and the relevant ar- in 1976. The Re- employed to be gates guments, court concluded that Committee’s chosen National publican possible exception of racial purely private is a “[w]ith discrimination allocation method by recipients govern- of the choice allowed choice. “[E]xercise funding, . ment . mere financial law where the initiative comes by state support particular projects for rep- also State, not the does not make it and from government resents insufficient involve- doing so ‘state action’ for its action application entail ment of First or the Fourteenth Amend- [to purposes guarantees].”24 Fifth Amendment ment,” the Jackson Court. so held financing scheme Considering in nar- the states’ interest Whatever with the other ele- cumulatively along the field of Presidential candi- rowing previ- involvement dates, government means logically no follows ments require does not a differ- narrowing process thus becomes ously that the discussed possible aspects Those other per- The function is a state function. ent result. their involvement all emanate by private parties on own government formed initiative, therefore cannot purposes. and for their own the states from financing to federal right added simply constitutional of association be The character of the con- persons private parties change involved protects Congress sought has deciding doing. specifi- While not in so ventions. allocation, over the conventions’ no control cally the issue of exercise deliberations, hence there Wigoda21 in Cousins v. governance complaint clear between abundantly indi- is no nexus made it dele- malapportionment of powerless impose plaintiffs, states are vidual arrangement. financing and the party nominating gates, will on a national their quite surprised would be Congress manner that in- would support financial that federal the almost unfettered dis- learn terfere with the conven- changing naming effect candi- had the cretion entities. governmental into dates. tions Campaign 95 S.Ct. 42 L.Ed.2d 477 18. 419 U.S. 22. Federal Election Act Amend 93-443, (1974) . ments of Pub.L. No. § codified as Int.Rev.Code of § 9008. U.S. at 19. 419 23. 512 F.2d 556 Ibid. Id. at 560. 21. 419 U.S. (1975) . addition, are countervailing holding there of this Court up to now gives rights that judicial must be con- support

associational intervention in the drawing the “state action” presented here, circumstances sidered involv- do, right “The of members of a ing threshold. as relationships great gather delicacy in a national political are essentially political in convention in order to formulate nature. Judicial [Citation omitted] programs and nominate candi- proposed intervention this area traditionally very office is at the approached dates has been with great cau- assembly of the freedom of tion and restraint. heart [Citations omitted] been established in It has been association understood since our na- political parties tional first came into earlier cases decided the Court.”25 being voluntary associations result, of indi- courts should be As reluctant to viduals convention itself is subject conventions to constitutional proper forum for determining in- Such reluctance restraints. reinforces disputes tra-party as to which dele- our conclusion there is no “state gates Thus, shall be seated. when these political involved par- action” cases involve claims of the power their of apportion delegates. ties convention judiciary the federal to review actions Justiciability thought II. heretofore to lie in the control parties. of political Highly important The second posed threshold issue by questions presented concerning this ease is whether a challenge to the justiciability, whether the action of the by formula which national political Credentials Committee is action, allocates its delegates among and if so the reach of the Due Process presents the various states justicia- non in this Clause context. rights Vital of “political question.” ble As with a find- guaranteed association by the Consti- ing action,” insufficient “state a find- tution are also involved. ing nonjusticiability here obviates the grave entertain doubts as to the [W]e action taken necessity -indeed, the propriety de- — —of by the Court of Appeals.29 ciding plaintiffs’ the merits of claims. added.) (Emphasis phase an earlier of this case Ripon Society obtained in the District Court an O’Brien did not question involve the injunction against the use the Repub- apportionment the overall delegates lican “bonus” formula for convention; party rather, to a the issue delegates allocation of to the party’s was which of two rival slates of dele injunction 1972 convention.26 That was gates from one state should be seated. stayed Mr. Justice Rehnquist on the Nevertheless, Republican State Cen of, alia, ground inter “the probability of tral Committee Arizona v. Ripon Soci error in the result below.”27 He based Inc.,30 Justice ety, Rehnquist was un reasoning his on the following passage doubtedly correct in his perception that v. from O’Brien Brown :28 practical legal is little there difference judicial interference par between with a case is cited to us No in which seating delegates at the ty’s time of undertaken to inter- court has federal apportionment convention and its process the deliberative into ject itself prior to the convention; convention. Both political no of a Wigoda, 25. v. Cousins 419 28. 409 U.S. 34 L.Ed.2d 1 (1975) (Rehnquist, J., (1972). 42 L.Ed.2d 595 S.Ct. concurring). 4-5, 29. quoted Id. at in 409 U.S. 1226-27, 93 S.Ct. at 1478. Society, Ripon Republican Inc. v. National Party, F.Supp. (D.D.C.1972). State Central Comm. of Arizona Inc., Society, Ripon questions, and their might survival —it well highly be suicidal for the core of how party party lie at to shut out answers urban opinion from now and how it itself would its deliberations on perceives candidates plat- form; itself in the certainly future. like to no decision is more personal and less appropri- as to the Any importance doubt judicial ate for interference than its Court attaches to the freedom maintaining choice of ideological purity party convention determine its of a possible at the cost of minimizing politi- put to rest composition recently own cal effectiveness. Wigoda.31 Relying heavily in Cousins of association freedom of individ- on the direction —the nominees and the political decisionmaking proc- uals in the platform party takes at a conven- —the ess, held that a state the Court had large no tion is in measure a function of to a power to dictate dele- it allows as delegates. whom From a take from that gates it should state —re- perspective, constitutional the judiciary the fact that the slate gardless of chosen prescribe can no more the composition of had not the convention been sanc- the convention than it can dictate the in accordance with state tioned law. make-up of the party, its beliefs to the Court’s decision Central was the platform, as stated in the or its nomi- that a recognition choice of its nees. large po- measure molds associates time, At the same it is important and ideas.32 beliefs partic- litical This is that, at note least in this country, most party’s quadrennial ularly true political parties are not content simply to What the convention convention. de- a profess particular ideological bent. only as to cides—not Presidential and They want to win elections as well. If nominees, Vice-Presidential but also as political the they decisions make —as to organization party to and ideology for candidates, platforms, ap- years primarily next four the deter- —is portionment not vindicated at the —are by permitted by who is party mined the likely are polls, to amend pos- their to it. to come ture in endeavor to achieve more sat- isfactory electoral results. To the extent the are formed for parties Political party that a fails to represent the “peo- commonly advancing certain of purpose choice,” therefore, ple’s the party itself These individ- individuals. of ideas held expected can be to remedy the situation. to enjoyed right the always have uals not, If it does other parties will quick be way a as to in such party the structure capitalize to on its short, error. the those ideas should be insure to seek process electoral makes the large- in this critical factor A perpetuated. ly self-regulatory; their errors as to the is the determination structuring process majority will of the are largely self-cor- the electorate as of elements which of rective. receptive to be most or could are whole mean, If This does not viewpoint programs. course, of the every political party will, should, to decide or example, were at- party, for the represent tempt can every in rural areas interest only individuals in society, American and deter- even platform every its interest sympathize party within the itself. It delegates only may from such accept well mines appeal that in its zeal to cannot be to a party large clearly cross- regions, populace section of the delegates from urban accept will forced gross support lose of that suffering segment without well areas expres- past given it right its of free its loyal of most infringement Also, backing. its ideological position As a matter and association. sion indeed, may homogenized become so political influence — at Id deviations from equality substantial po- the party’s in confidence loses public voting power Conventions party tries to If the integrity. litical legitimate justific supported are up it wind everything, stand public mind. nothing in standing for ations.38 far the can of how questions The was cited and found de- This conclusion ideology and of spread afford justiciability in issue terminative popu- lies in the support its best where as well.39 Bode in nature. archetypally lace no absolutely standards have courts Georgia Our decisions and Bode assuming they right —even —to without were reached considerable such decisions.33 make Supreme pondering Court’s then development man, current the “one At least two of formulations In the vote” doctrine. interim since doctrine laid “political question” the Court has illuminated in those cases Court Baker v. down issues discussed which are much directly pertinent this case. above40 Carr34 and therefore much closer more determi- of a entertainment suit if the bars One issues we native face here. Re- judicially “a lack of discover- finds court flecting these most recent Supreme standards manageable for re- able solving pronouncements, is apparent controversy].” other, [the analysis Georgia that our and Bode is related, requires closely formulation inconsistent therewith. stay when its hand faced with court deciding impossibility of con- “the [the

troversy] policy without an initial deter- previous The errors of our position clearly for nonjudicial of kind First, mination to be two. would seem that the Although man, troubled “one one vote” principle developed discretion.”36 Georgia court found cases problem, reapportionment can have no “manageable standard” review of the application body to a which is neither Party’s delegate allocation representative, Democratic elective nor and which man, in the “one one re- general vote” not formula does exercise governmental Second, reapportionment deci- quirement even powers. assuming a possi- We concluded: analogy legislature between a ble and a sions.37 political nominating convention, impossible meaningfully it is which to principle renders the define identify the constituency litigation justi each raised in dele- questions represents. gate purportedly competent These is that courts twin ciable failings of the logical Georgia pro allocation schemes rationale scrutinize mulgated submit, not, we should by allowed to re- the national in or whether, analysis yet given the sist another of this Cir- to determine der apportionment delegate cuit’s out of political partisanship decisions. context with in arise, They are dealt turn necessarily below. such formulas which Nevertheless, 36. ibid. 33. this court found both Geor- judiciary gia fully and Bode that the em- 102, U.S.App.D.C. 37. 145 108-09, 447 F.2d powered oversight regard to exercise (1971). 1277-78 delegate political formulas of allocation F.2d at 1278. Id. at nominating We conventions. did not time, Supreme prior feel at that Court’s U.S.App.D.C. 39. 146 452 F.2d Wigoda, Cousins v. decisions O’Brien and (1971). nonjusticiability presented a bar to our intra-party in such decisionmak- intervention Wigoda, Cousins U.S. ing. (1975); Brown, O’Brien v. S.Ct. L.Ed.2d 1 34. 369 at 710. Id. at Second, Non-Governmental, and equally important, polit- a Non-Rep-

A. The a ical convention is not a representative Political Nature resentative Delegates be, need body. not and usual- Party Convention not, ly positions.44 elected to their They are not bound to vote for repeatedly any Court has can- reapportionment in one case didate and do exercise their own emphasized, discre- another, tion, that the principle partially on after of “one based occurrences sub- applies only to man, vote” units to their selection and sequent one often on representative which are happenings at convention government itself. general governmen- minority exercise Even states where nature government If the unit are elected or powers.41 tal selected as the function and its very by-product primary, limited members of Presidential particular delegate only morally accountable constit- are not bound on a lim- decisions, their the “malap- uencies for ited number of ballots to stick a par- Furthermore, of the members does portionment” no ticular candidate. as clear, Wigoda to the Constitution.42 made offense Cousins the con- reject is free to vention individual delegate or slate of delegates- regard- party nominating Political conventions — they less of the method were neither of the criteria applica- meet or elected—which selected does not meet man, of the “one princi- tion vote” approval. with the convention’s ple. place, In the first not do general governmental not exercise pow- Thus, ato convention is but, ers, above, discussed in Part I comparable representative to a in a government not a unit of they are at all. representative A legislature. has a right may well be that It convention legislature compel to seat him.45 important serves societal interest in seated, he is not If citizens of his winnowing out some candidates and or district are effectively disen- reducing thereby the number ap- who contrast, franchised. these same citi- pear general on the ballot at the elec- legal right no enjoy represent- zens to be tion; performance but the incidental They ed at a convention. private public benefit association therefore, right, particu- to insist on no does not render its activity “state ac- delegates, lar demand that those assuming Even tion.” the possibility of delegates vote accordance with their ascribing a governmental function to a To force a national wishes. convention, the analogy would involuntarily accept delegates of a special be much closer to a purpose unit particular choosing state’s would be in which does not exercise normal govern- delegate’s contravention of each direct powers mental over citizenry (and right of free party’s and the association. whose acts have disproportionate effects segments on different of the community) sure, To be major parties at legislature than to a body other accept with delegations from every generalized governmental more authori- to their national conventions. ty.43 Moreover, delegates can expected be Salyer See, g., Salyer Land Co. v. 43. See Land Co. Tulare Lake v. Tulare Lake Basin e. District, Storage District, Storage 719, 728-29, Basin Water 93 Water 410 U.S. 410 U.S. Hadley (1973); (1973). S.Ct. 35 L.Ed.2d 659 35 L.Ed.2d 659 S.Ct. District, College Junior 397 U.S. Developments 44. See the Law — Election (1970); Avery v. Midland 25 L.Ed.2d Law, (1975). Harv.L.Rev. 1153-54 County, (1968); Sailors v. Board of Educa McCormack, See Powell v. tion, Id. representatives legislature in a to the convention the ment to make known delegates the allocation of to a con- potential views of actual and and vention, political man, “one vote” stan- respective adherents their party Indeed, nigh impossible is well to apply the course dard of reform states. That standard depends Democratic in recent this situation. on within identifying the “man” whose “vote” is decision to years evidences equal weight with open,” encourage given that of some “more become reapportionment man. The deci- other greater “grass participation, roots” criterion, population use as their sions and, conventions theoretically make its surprisingly, Georgia not the del- representative of the will of its more egate apportionment plan was chal- “constituency.”46 This decision ground that however, lenged it failed Democrats, a was strictly to conform to the choice, popu- relative of what borne reject- of the states. We correctly lation party’s political was in the perceived decision, argument, noting that a ed that conven- If in the self-interest. conventions, delegate, official, tion unlike an succeeding elected view of is deter- represent population not injected to have too much divi- does as a mined whole, constituency but a which “. par- and factionalism within the siveness significantly smaller than the whole party is free rescind it. ty, electorate, and varies dramatically bar, Republi- So, the case at if the state to state and from from election to made the choice Party has can election.” delegations from the larger to invite Inevitably, in Bode we states, were faced or from southern western argument with the that the only accept- traditionally voted Re- which have states criterion allocating able party be because the publican, party that of strength in a state—as way keep is the its or- believes demonstrated the average of the strong, in those states or be- ganization of votes number cast for the Democratic obligation to reward it feels cause Presidential nominee in the three imme- allegiance, past states for or be- those diately preceding Presidential elections. delegates from those states it feels cause correctly rejected argument We as likely proper to be of the more ideo- well, the following analysis: Regardless of its bent. reason- logical sagacity, decision is for ing, or of is the represented Nor individual to be Republican National Convention loose, except identifiable in a concep- for one faction with- to make—not alone Appellees tual sense. would define per- which was unable to such individual one who cast an convention of the merit of its suade the anonymous vote for the Democratic the courts. position, and Presidential candidate in. an earlier year. It seems to us that the constitu- judiciary neither standards ency represented at a national conven- right to make decision nor the which comprise solely tion does not “Demo- kinds of sensitive policy to make the de- crats,” so defined. To the extent that required. terminations voter, registered whether he be a Nature B. The Unidentifiable or a Republican, Democrat third Party’s “Constituency” Political independent, adherent or given al- assuming possibility Even of draw- major ternative slates the two par- analogy apportion- ties, between the ing has a he stake in the outcome of Bickel, generally Party, 46. See A. Reform National F.Supp. and Conti- Democratic nuity, College, Convention, (S.D. 1972). The Electoral Miss. Party System (1973); and the Note Presiden- 102, 110, U.S.App.D.C. F.2d Nominating Party Rules, tial Conventions: Constitution, State Law and the 62 Geo.L.J. 30-31; 1621-22 n. 1627 nn. Riddell v. inability alone. Our process parties. of both formulate a via- nominating the Accordingly, Bode, Georgia ble standard in or constituency for a na- the re- panel fusal comprises a cer- vacated opinion tional convention in the instant case to set By down any the entire electorate. clear degree tain constituency guidelines, and the failure of the majori- of the Demo- viewing the ty of this court en banc to Convention in this identify National cratic touchstone which it appellees’ theo- way, application ratified the allocation plan challenged here, delegates the allocation leads us ry—that to the conclusion that no performance— past must be based authoritative standard exists. The theoretically result in a failure absence of judi- could best, cially cognizable criterion for or at an under- represent, determin- ing the “proper” allocation of might those who representation, to a vote dictates for a nomi- wish nominate that the courts must refuse to intervene ultimately the one from in dis- nee different putes between intra-party the convention. To identi- selected at factions over such Democrats is allocation. decision fy potential and count must be left to the internal impossible, requiring but un- decisionmaking desirable ma- chinery of clairvoyance. party. each individual Elusive too is available past voting pat- the utilization Conclusion transitory political phenome- terns — majority today sidesteps the issues popula- current na—to ascertain of state action and justiciability at the at a national represented tion to be potential cost of disruptive continued lit- (Emphasis added.) convention48 igation private, over the political deci- practical Added bank- logical party sions of national conventions as to strength” “party argument ruptcy of the membership. their future This mani- in fifteen states there is fact a strange keep fests intent to this court by party possi- registration no voter —a open for the business of directing the determining means of ble alternative proceedings conven- “constituency” in other —and tions-—of there may be a surfeit in are outdated.49 lists More- states 1976—in spite of the fact that the Su- register “indepen- over, voters many preme Court has all but told us such being tagged avoid in order dents” business is none our business. of one or another. label with the The determination of what formula to registered “party mem- Finally, even employ allocating delegates involves to- obligations no duties bers” delicate questions of how best “to they may alter their party; ward the practical achieve the advancement of the Even those who re- membership at will. political ideas for pursuit of which membership cannot be com- tain their the [party] was formed.” It is ques- financially to to contribute either pelled personal tion intensely to the party, in- loyalty polls. at the display party or volving the exercise of its mem- right bers’ constitutional to free population If neither nor associa- tion, political, but strategic, also upon strength provide can be relied and ide- ological considerations which manageable and are mani- “judicially discoverable festly inappropriate for deciding the question courts. standard” We concur the result allocation, possible reached what stan- the ma- jority, register our strong Certainly no disagree- remains? combination dard ment with their decision to any more provides of the two stable con- avoid decisive threshold issues in this footing than standing each case. stitutional State U.S.App.D.C. 377-78, v. Delaware 50. Redfearn 452 F.2d Comm., (3rd 1127-28 Cir. F.2d 1306-07 1974). Appellants’ at 28. Br.

615 opinions ruling on the BAZELON, Judge (dissenting): Chief merits of —in malapportionment claims of brought by arguments convinced the I remain groups of citizens3 —but the Court has majority opinion advanced expressly held that an organization may appeal.1 heard this first division rights assert of its members.4 This Society provided has us on Ripon court has an equally lengthy and consist- ample factual data to rehearing with ent line authority in support of the conclusions in the tentative Part support proposition.5 same Magically prece- opinion that the so- I of the division’s dent is waived aside with the stated ar- very results in a “victory bonus” called gument that no evidence is adduced to one-per- from the deviation substantial show the members of the Ripon Society norm.2 While I» adhere to son-one-vote capable are not of enforcing their own views, several state- stated previously rights. No such inquiry is necessary or opinions various rendered ments required has ever been to support this court deserve critical by members jus limited tertii standing of an organi- comment; purpose dissenting of this zation favor of its members. The is- offer such comment in de- is to opinion sue of associational standing is far re- opinion majority of the divi- fense moved from the normal difficulties of sion. jus standing tertii because the associa- tion is the injured class of parties, as in Standing I. a class action. The reams and reams of The rather incredible assertion is appeals made administrative brought Ripon Society may groups lack stand- of citizens in support of ing prosecute this case. Not only rights has of members is proof further implicitly rejected this assertion been oddity extreme of the court’s suggestion. in reapportionment There is not one whit of doctrinal sup- opinion issued, 1. Since the division’s tions, one addi- the 1976 formula without uniform bo- applied one-person-one- court has tional produce average nuses would deviation in principle political parties, vote (1) Redfearn v. category (4.6% less than the av- 32.1% Republican Comm., Delaware State 393 erage bonuses) deviation with the uniform and (D.Del.1975) F.Supp. (reaffirming (2) its earli- category (3.5% less). 25.8% rejecting er decision validating the alternative of in- Ripon brief does not isolate the effect of the adopted party state laws which de- proportional bonuses. cisions). hand, intervening the other On g. Maryland 3. E. Representa Comm. for Fair Alyeska Pipeline decision in Service Co. v. Tawes, tion v. 377 U.S. 84 S.Ct. Society, Wilderness 95 S.Ct. (1964). (1975) compel would attorneys’ requested by plain- fees as Morton, denial 727, 739, 4. Sierra Club v. tiff-appellant. (1972). See also Park, Citizens to Preserve Overton Inc. v. rehearing Ripon Society In their brief Volpe, 28 L.Ed.2d applied Republican the 1976 has formula to results, both the 1972 and 1968-71 election (1) calculated deviations from the Laundry 5. See National Automatic Cleaning & Republican per delegate, (2) Shultz, mean vote U.S.App.D.C. 274, Council v. population per the mean deviations from gate. (1971) dele- F.2d 693-94 and cases cited. election, figures literally For the show There are hundreds of administrative average appeals largely deviation from the mean involving in both communications and (1) (2) categories policy to be For the environmental standing in which for cit 29.3%. elections, average groups 1968-71 deviation in izens’ on behalf of their members is (1) category category accepted would and in g. as a matter of course. E. Citizens 36.7% (2) figures usefully These can FCC, be com- Comm. U.S.App. to Save WEFM 32.3%. pared average deviation from the (1974); mean D.C. 506 F.2d 246 Wilderness population per College which, Morton, Soc’y Electoral vote U.S.App.D.C. 446, census, the 1970 (1974), based on grounds, F.2d 1026 rev’d on other 22.2%. Alyeska Pipeline Service Co. v. damningly, Ripon Wilderness brief More shows that Soc’y, goal bonuses the uniform disserve both the vote, goal one and the of one person Applied one vote. to the 1968-71 elec- 616 (1975) somehow 42 holding Ripon a that the port Society this issue. But Cousins holds bears on standing.

lacks may that a state not interfere with Action II. State rights politi of national associational the action holding of state prohibited our not that a state is logic parties, The cal unimpaired by is assisting Bode Georgia and such in selec from in opinions in delegates various or reasoning adopting tion the party’s opinions state action narrowing function. or recent performance court this is a clear fact, There recently Court. held that Supreme the Court in the . in the action state in compelling between state interest a state has “nexus” (and delegates6 in of selection process enforcing this narrowing process.8 Fur narrowing adopting process thermore, says all this nothing about the dele by the selected performed function power government of the federal reg to del malapportionment and gates) political parties, ulate an ex issue left inheres malapportionment egates: open in pressly Cousins. Feeble indeed and in the ultimate of selection nature argument is the state must to as all seem selected by those choice plenary power organiza over an party mal would the else Why admit. tion, no matter how much the state course, is no state there Of apportion? functions, adopts organization’s in maláp requires law which federal organization order for to constitute any was there neither portionment Compare action. state Reitman v. Mul racial discrimination requiring law state 87 key, 387 U.S. Kraemer, Shelley (1967). (1948). But in L.Ed. Ct.S. previous Nor affirmatively adopts state cases both findings state action be distinguished by otherwise “neu the discrimination involving racial discrimination for as course, And, of the Court actions. tral” quantity a lesser of state action is previous cited hold explicitly Jackson First, required. none of the cases ex- regard to action state ings of Second, pressly relied on fact. distinct independent and as primaries to Supreme Court refused make the ra- regard public utilit holding in from discrimination cial distinction Moose ies.7 relied on the Lodge Lodge Moose argument primary “nexus” baffling The suggestion is advanced Third, ground for decision in Jackson. v. Wigoda, that Cousins organizations Generally would mean that such as how dele- state law determines port authority are not state action gates New York conventions select- to national occur; eligible they organization ed; local who is since not must selection when eligible government delegate; since the “mere fact” that is who to run obligations state are formed two constituent fixes the State law also vote. Delegate governments find ac not sufficient state delegates selection selected. once absurdity decisively rejected preference primaries are state tion. This Presidential University Collegiate v. National Ath Howard And the nominees cho- and state-run. funded Association, U.S.App.D.C. delegates major party letic conven- sen (1975) universally and authorities cited. automatic ballot F.2d afforded tions are generally Congressional Research See access. Service, Co., Metropolitan Jackson v. Edison and Election of Presi- Nomination 345, 352, (1974). of the United States Vice President dent and minority suggestion state offers the Developments (1972); in the Law— 72-173 merely because the state action is 1111, 1121, Elections, Harv.L.Rev. 1151- private organization, “benefits” somehow enough. which is uncontroversial comment minority rehearing makes the star- however, hand, the issue Its relevance from tling that it does not follow assertion questionable. selection of consti- state fact Brown, Storer of the dele- the actions state action tutes gates in the national convention so selected concept This heroic action. constitute political of a “right constituency were as much to national party these cases vote” judicially be as were racial cannot defined. cases Neither discrimination ar- part gument analysis. such’ withstands and as formed of the cases Reynolds doctrinal basis express for v. First, minority is simply wrong in Sims, 533, 1362, 377 U.S. asserting that a national con (1964). subject The L.Ed.2d matter “nongovernmental” is a vention body to litigation Reynolds is one-person-one-vote which the rule is not against discrimination territorial Gray Sanders, v. applicable. 372 U.S. Reyn- vote of certain citizens. right to 368, 801, 83 S.Ct. (1963)— L.Ed.2d 821 teaches such discrimination is olds involving party primary v. Moore — and the same constitutional forbidden 814, Ogilvie, 394 U.S. 89 S.Ct. that forbids racial structure discrimina- L.Ed.2d 1 (1969) involving malappor — right to against vote tion of certain signature tionment of the requirements citizens.9 nominating petitions on conclusive —are authority the one-person-one-vote to principle applies the nominating activ Justiciability III. political parties. Indeed, ities of it division, majority of the opinion The boggle the mind would to hold that Bode, Georgia and held that following City Kansas Junior College per District Carr, v. 369 U.S. Baker “governmental” formed functions while (1962) justici- resolved the national convention major politi of a as a threshold matter ability issue party cal does not.10 Prevailing doctrine policies consideration of further require does not such an absurdity. be integrated must into a justiciability As the division plain- majority of the merits of the clearly holds,11 determination proper on definition of majority rehearing The a party’s claim. tiffs’ constit- nonjusticiable. uency is adopt approach. justicia- this How- What is appears following: ble is the ever, suggest members of the court once a some constituency itself, defines for analysis is mistaken both because courts require will that the party rule is not not one-person-one-vote appli- malappor- (and tion the members of that political parties hence can- constituency cable so deprive as to some judicially manageable constituents not standard of their be Baker) right to vote.12 was in because the minority rehearing Dist., attempt Hadley College The on v. defuse 10. See Junior fairly the presented by obvious state action rationale 90 S.Ct. financing major federal of most Majority opinion, supra, - U.S.App.D.C. activities on the national level refer- n. F.2d at 58, 583 n. encing holding recent decisions that “mere re- App.D.C.-at n. 525 F.2d 585 at n. 58. ceipt” of state funds does not constitute state minority rehearing action. But here have on we have more than 12. The fails to distin- that —we financing complete guish “right and exclusive between the two federal lines to vote” cases, partially represented by Reynolds of the convention and one line exclusive fi- nancing contested Sims and the other Kramer elections of v. Union Free (the matching system presidential funds School Dist. No. spending limit). and a elections It concomitant Kramer concerns certainly imagination stretches limits constitutional stituency Reynolds largely on the to de- definition of a con- particular funding governmental analogous entity; clare that this sort of federal and state grants private concerns what follows after a universities. example constituency reached, e., To return to the of the New definition of York i. port authority, constituency minority malapportioned. Salyer would hold “merely” Dist., Storage there is no state action Tulare Lake Basin Water because the Jersey (1973) states of New York and New finance operation entity holding through principles on setting was a based the Kramer fare arrangements. very potential tangentially Reynolds holding Such a on the does course, principles. principles not commend itself to us. Of the two reapportionment one-person-one- Merits IV. —the principle prevent these tem- vote —is majority approach ' majorities entrenching from porary merits of the case is to rehearing to the in a prevents themselves manner that one-person-one-vote princi- “balance” working the natural of the democratic legitimate interests of ple against Reapportionment in- the future. process parties, interests which legiti- its immense constitutional derives recog- to First Amendment are entitled prevention macy from of this en- unqualified acceptance.13 nition if trenchment. necessarily itself is not ob- The method This is the main error of the court’s reasoning by the which jectionable, but way: it assumes that decisions of a tem- one-person-one-vote principle is trivi- the porary majority in the organization of par- which interests of the alized and the and the use of the po- beyond appropriate extended their ty are power litical are no different from en- surely contrary precedent. is sphere trenchment of the temporary majority in majority’s argument The central is very process the political of choice. The parties that the national are so undemo- leaps court then to the improbable con- already cratic that enforcement of clusion that malapportionment of politi- right equal to an vote for all party con- cal either does not violate the makes little Why stituents sense. is not one-person-one-vote principle or is out- opposite equally plausible conclusion one-person-one-vote side the principle. convincing? indeed structure of But argued as is as persuasively as I legislatures and for that matter know how in the majority opinion for Congress may well be undemocratic division,14 an equal position at the example particulars, the commit- democratic starting line preventing en- structure, caucus, system tee of trenchment of temporary majorities is distribution. patronage surely But it distinct from the necessary actions of not malapportionment does follow that temporary majorities resulting from the legislative of districts thereby is sanc- operation of the process. More- purpose reappor- tioned. The whole of over, equality at the starting just line is give equal tionment is to all voters an important, if not more important, in starting the democratic place line. the convention context than in gen- What thereafter occurs is but the context, eral election natu- since great for the workings of the process ral democratic in mass of voters their choice has already temporary majorities make which neces- been determined by the convention’s de- sary decisions. The whole drift cision.15 may closely unprofitable rights and it be interwoven being stead of the of the association distinguish paramount, rights them other context than of the members of the major parties. paramount of But the national conventions association become and if distinct important: point association, is it of the distinction does from the interests of the should constituency prevail. the fact that a follow from not organization encompass does not all a state U.S.App.D.C.---, 14. See 173 F.2d at registered malapportion- eligible voters that or 577-580, supra. constituency that does exist ment of the rehearing majority asserts 15. The constitutionally appropriate. Bode, college by accepting the electoral as a one-person-one-vote stan- from strict deviation U.S.App.D.C.-, the discussion on 173 13. See one-person- dards, that the admission is a tacit 574, 581-582, ---, 525 F.2d the ma- applicable applicable is either not one-vote opinion jority division. The court only meaningless pale version. This as- the First Amendment in its discussion express holding is contradicted sertion party apparently fails to recall interests Sanders, Wesberry purposes assuming for it is decision (1964) that the constitu- is state action. that the convention While representative requirement from tional Amendment con- fact does not eliminate First creating malappor- each state House — cerns, majority opinion as the of the division justify any not further of sorts —does tionment holds, clearly place it does consideration malapportionment. vastly light those claims in a different —in- true, This is since there no malappor- justifications, if be so conceivable, tionment including overt ra- named, support court offers discrimination, cial which could malapportionment be justified grounds. on similar easily are the sort made and justifications forgotten. The quickly course, Of the court intimates it would of in adequately disposed the division not tolerate overt racial discrimination enough to It is add here that opinion.16 (although approves here a territorial to admit quite itself seems discrimination largely the purpose victory openly effect). same But why? Surely in some consequent malapportion- and its bonus indeed, it would areas be rational unfor- not, majority as the on rehearing ment is so, tunately to exclude blacks or other it, sort of as some would “reward” minorities to ensure party victory or soli- “probable or as a measure of success” in darity. If the court were to reach a electoral capturing college state’s case, different result in such a then it Rather, purpose is an ideolog- votes. And, will pure ipse dixit. all, after designed compromise to apportion ical Reynolds expressly v. Sims extended the power party by within the means of a proscription of denial of the right to vote territorial discrimination. The “reward” on the basis of racial discrimination to future “prediction and of success” ra- of proscription denial based on territorial completely subsidiary tionales are to this discrimination. overriding purpose. This should be obvi- Stripped of its exterior, rational I read fact ous at least from the these majority opinion on rehearing as tell- simply explain cannot rationales the ing something us of this sort: victory “uniform” bonus and do not con- reapportionment The decisions were vincingly explain the failure to include intensely controversial and involved a presidential the results of more than one judicial radical extension of power. determining election need for a will not We extend those decisions nor probability or the of future reward suc- philosophy judicial power cess. embody logically even if compelled, ab- Generally the court seems to assume public sent either more demand than malapportionment if a might be perceive guidance can or clear helpful winning elections or aid in the from the Court. We simply organization solidarity of the party, it principle do not believe one-per- permissible. But this reasoning de- sufficiently son-one-vote is important stroys one-person-one-vote principle. to overcome these concerns of institu- malapportionment may All have some le- competence popular tional approv- objective gitimate winning elections —in al, lain always on the hori- ensuring party or in national solidarity. reapportionment zon of the decisions one-person-one-vote principle does which counsel studied conservation deny the existence of these legiti- power judicial review. objectives, but mate holds that stretch- judicial statesmanship is not sort of This ing permit them to malapportionm.nt wrong prin- as insensitive to the much so legitimacy undercuts the of a democratic legitimacy that underlie a dem- ciples order political and hence is an overbroad and to horrendous ocratic application legitimate of a state aim. produces that this decision by denying anomalies The court this result here is —e. City junior college the Kansas holding g., simply one-person-one- apportioned properly must district principle applicable is not politi- vote major of a the national while directly parties, cal without arguing principle is not. point, guise under the of “balancing.” “balancing” U.S.App.D.C.---, See 173 17. On this F.2d at First 580-582, one-person- supra. interests and Amendment principle, supra. one-vote see note 13 this, repeated again

legitimacy of controversial support but

again public you decisions: if disa-

necessary public policy, run for

gree with throw the or vote to rascals out.

office legitimate processes through Go government “system”—

democratic —the change will follow. But popular this is naive ideology, tells us fit

court perhaps, textbooks high school a constitutional not as command

surely “democracy” world.” There

in the “real power incumbency and the

means by controlling the proc- obtained

power Democracy, choice.

ess of short, politicians

means what I do not believe

say it means. that the cynical harbors such

Constitution

view.18

COLUMBIA PLAZA CORPORATION al., Appellants,

et

SECURITY NATIONAL BANK et al.

No. 73-1919.

United States Appeals, Court of District of Columbia Circuit.

Argued Sept.

Decided Oct. viduals, Perhaps wealthy irony the ultimate few could claim a con- court’s dpinion largely guarantee stronger political meaningless is that it renders to a stitutional recently unwealthy many Buckley what we said in much of voice than because Valeo, Buckley give spend money, F.2d 821 more are able because the cannot be limited. banc, court, sitting upheld they give again major spend en amounts provisions Campaign of the Federal Election equally strange I as amended the Federal Id. at 841. find that the Act of tion lynchpin recognition Elec- right Campaign Act Amendments of now finds that to associate 1974. The court freely decision, view, my powerful enables the few to was our claim a compelling governmental unpowerful stronger many. than the in- voice I why equalizing the influence of all an interest voters. cannot understand terest in compelling yesterday today we termed af- stated: As we weight in the forded so little scheme of consti- if, by strange extrapo- indeed It would be values. tutional rights the basic of indi- from outward lation

Case Details

Case Name: The Ripon Society, Inc. v. National Republican Party the Ripon Society, Inc. v. National Republican Party

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 23, 1976

Citation: 525 F.2d 567

Docket Number: 74-1337, 74-1358

Court Abbreviation: D.C. Cir.