LaRouche, Lyndon H. v. Fowler, Donald L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 1997 Decided August 28, 1998

No. 96-7191

Lyndon H. LaRouche, Jr., et al.,

Appellants

v.

Donald L. Fowler, Individually and as Chairman Democratic

National Committee, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01816)

James F. Schoener argued the cause for appellants, with

whom Theo Mitchell, Odin P. Anderson, James E. Wilson,

Jr. and Nina J. Ginsberg were on the briefs.

John C. Keeney, Jr. argued the cause for appellees, with

whom Charles A. Rothfeld, Mary Eva Candon, John Hardin

Young, Steven Ross and Richard A. Halloran were on the

brief. Scott M. Deutchman entered an appearance.

Before: Silberman, Sentelle and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: This case arises out of Lyndon H.

LaRouche, Jr.'s unsuccessful quest for the Democratic Par-

ty's 1996 nomination for President. The Party's application

of certain of its internal rules deprived LaRouche of two

delegates to the 1996 Democratic National Convention. La-

Rouche contends that application of those rules violated the

Voting Rights Act, 42 U.S.C. ss 1971, 1973-1973bb, because

the Party did not submit them for judicial or administrative

preclearance. He also contends that application of the rules

violated his rights under the Constitution. With a limited

exception, we conclude that we are without jurisdiction to

decide LaRouche's Voting Rights Act claims and therefore

remand them for the convening of a three-judge district

court. We affirm the dismissal of LaRouche's constitutional

claims.

I

LaRouche declared his candidacy for the Democratic Par-

ty's 1996 nomination for President on August 7, 1993. On

March 12, 1994, the Democratic National Committee (DNC)

adopted its Delegate Selection Rules for the 1996 Democratic

National Convention. Rule 11(K) provided:

For purposes of these rules, a Democratic candidate for

President must be registered to vote, must be a declared

Democrat, and must, as determined by the Chairman of

the Democratic National Committee, have established a

bona fide record of public service, accomplishment, public

writings and/or public statements affirmatively demon-

strating that he or she has the interests, welfare and

success of the Democratic Party of the United States at

heart and will participate in the Convention in good faith.

In January 1995, the DNC adopted the "Call to the 1996

Democratic National Convention," which in Article VI defined

"presidential candidate" as:

any person who, as determined by the National Chair-

person of the Democratic National Committee, has ac-

crued delegates in the nominating process and plans to

seek the nomination, has established substantial support

for his or her nomination as the Democratic candidate for

the Office of the President of the United States, is a bona

fide Democrat whose record of public service, accom-

plishment, public writings and/or public statements affir-

matively demonstrates that he or she is faithful to the

interests, welfare and success of the Democratic Party of

the United States, and will participate in the Convention

in good faith.

By the spring of 1996, LaRouche had qualified for a

position on the Democratic Party primary ballot in numerous

states. On January 5, 1996, however, before the first primary

was held, DNC Chairman Donald L. Fowler issued a letter

addressed to the chairpersons of all state Democratic Party

organizations. Expressly exercising his authority under Rule

11(K) and Article VI (hereinafter "Rule 11(K)" or "the

Rules"), Fowler determined that:

Lyndon Larouche [sic] is not a bona fide Democrat and

does not possess a record affirmatively demonstrating

that he is faithful to, or has at heart, the interests,

welfare and success of the Democratic Party of the

United States. This determination is based on Mr. La-

rouche's expressed political beliefs, including beliefs

which are explicitly racist and anti-Semitic, and other-

wise utterly contrary to the fundamental beliefs ... of

the Democratic Party and ... on his past activities

including exploitation of and defrauding contributors and

voters.

Following this determination, Fowler instructed the state

parties that:

Accordingly, Mr. Larouche [sic] is not to be considered

a qualified candidate for nomination of the Democratic

Party for President.... Therefore, state parties ...

should disregard any votes that might be cast for Mr.

Larouche, should not allocate delegate positions to Mr.

Larouche and should not recognize the selection of dele-

gates pledged to him at any stage of the Delegate

Selection Process.

Further, Mr. Larouche will not be entitled to have his

name placed in nomination for the office of President at

the 1996 Democratic National Convention. No certifica-

tion of a delegate pledged to [him] will be accepted by

the Secretary of the DNC....

Neither the Rules nor the Fowler letter were submitted to

the Attorney General or a district court for preclearance

under section 5 of the Voting Rights Act, 42 U.S.C. s 1973c.

LaRouche was not excluded from any primary ballot be-

cause of Fowler's letter. He appeared on Democratic Party

primary ballots in twenty-six states, receiving a total of

597,853 votes. He alleges 1 that under the otherwise opera-

tive party rules, he won sufficient support in Louisiana's

Democratic Party primary and in Virginia's Democratic Party

caucuses to be entitled to one national convention delegate

from each state. The respective state party chairpersons,

however, carried out the instructions in the Fowler letter and

ruled that LaRouche was not entitled to the two delegates.

In addition, LaRouche asserts that local precinct delegates

pledged to him were excluded from Texas Democratic Party

caucuses. And although Arizona's Secretary of State certi-

fied LaRouche's name for that State's "presidential prefer-

ence election," the Arizona State Democratic Party filed a

lawsuit in state court that resulted in the cancellation of that

election.2 Finally, LaRouche asserts that the District of

__________

1 Because the district court dismissed LaRouche's complaint for

failure to state a claim, we must deem the allegations of the

complaint to be true. See Goosby v. Osser, 409 U.S. 512, 521 n.7

(1973).

2 Arizona's state-run "presidential preference election" had

been scheduled for February 27, 1996, while DNC rules precluded

participation in primaries before March 5. The Democrats in

Columbia Democratic Party refused to accept the candidacy

of delegates pledged to him.

On August 2, 1996, less than one month before the Demo-

cratic National Convention, LaRouche, would-be LaRouche

delegates, and LaRouche supporters who either voted for

him in primaries and caucuses or assertedly were barred

from doing so (collectively referred to in this opinion as "La-

Rouche") filed suit in the District Court for the District of

Columbia against Fowler, the DNC, and state Democratic

Party officials and organizations in Arizona, the District of

Columbia, Louisiana, Texas, and Virginia (collectively re-

ferred to in this opinion as "the DNC"). The suit alleged,

inter alia, the failure to pre-clear changes in voting proce-

dures in violation of the Voting Rights Act, as well as the

violation of rights guaranteed by the Constitution and 42

U.S.C. s 1983. LaRouche sought compensatory and puni-

tive damages, declarations that the DNC rules and Fowler's

actions were void for lack of preclearance and were uncon-

stitutional, and injunctions ordering defendants to seat his

delegates at the convention and prohibiting the DNC from

reenacting Rule 11(K) or any similar rule for future conven-

tions. LaRouche also sought the appointment of a three-

judge district court to hear the case, pursuant to section 5

of the Voting Rights Act and 28 U.S.C. s 2284.

On August 15, 1996, the district court denied the applica-

tion for a three-judge court and dismissed the entire com-

plaint, with prejudice as to all defendants, pursuant to Fed.

R. Civ. P. 12(b)(6). The court ruled that "[n]ot only has the

U.S. Supreme Court held that the national political parties

possess the right under the First Amendment to 'identify'

__________

Arizona accordingly planned their own party-run primary for March

9 and sued to block the state-run primary. Despite LaRouche's

objections, an Arizona state court blocked the state primary, noting

in the process that the DNC had found LaRouche not to be a

qualified candidate for the Democratic Party nomination. See

Arizona State Democratic Comm. v. Secretary of State, No. CV

96-00909, slip op. at 5 (Ariz. Super. Ct., Maricopa Co. Feb. 1, 1996)

(Joint Appendix ("J.A.") at 346).

those who constitute their 'association' and to 'limit the

association to those people only,' the only defendants able to

afford the relief sought, viz., Chairman Fowler and the DNC,

are neither 'covered jurisdictions' nor agents thereof under

... the Voting Rights Act and, thus, not subject to its

'preclearance' requirements."

II

Before reaching the merits of LaRouche's claims, we must

first consider defendants' contention that those claims are

moot because the 1996 election is over. LaRouche does not

dispute the mootness of his specific request for an injunction

ordering the seating of his delegates at the 1996 Convention,

but contends that his underlying causes of action continue to

present a live controversy. He is plainly correct as to his

claims under the Constitution and s 1983, because his request

for damages on those claims saves them "from the bar of

mootness." Memphis Light, Gas & Water Div. v. Craft, 436

U.S. 1, 8 (1978). Although the DNC contends that a claim for

damages can keep a controversy alive only if that claim "is

not so insubstantial or so clearly foreclosed by prior decisions

that th[e] case may not proceed," Appellees' Br. at 14 (quot-

ing Memphis Light, 436 U.S. at 9), as the discussion in Part V

of this opinion makes clear, those claims are neither insub-

stantial nor foreclosed by prior decisions.3

We also agree with LaRouche that both these and his other

claims are saved from mootness because the situation is

"capable of repetition, yet evading review." This exception to

the mootness doctrine applies if: "(1) the challenged action

__________

3 Although in Part V we assume without deciding that La-

Rouche is correct in his contention that the conduct he challenges

constitutes state action, Part V.A makes clear that contention is

neither "insubstantial" nor "clearly foreclosed by prior decisions."

We also note that the quoted phrase from Memphis Light appears

to describe the test for subject matter jurisdiction rather than a

requirement for avoiding mootness. Cf. Bell v. Hood, 327 U.S. 678,

682-83 (1946) (holding that claims may be dismissed for want of

jurisdiction if "wholly insubstantial and frivolous").

[is] in its duration too short to be fully litigated prior to its

cessation or expiration[;] and (2) there [is] a reasonable

expectation that the same complaining party [will] be subject

to the same action again...." Spencer v. Kemna, 118 S. Ct.

978, 988 (1998) (citation and internal quotation omitted); see

Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990).

Challenges to rules governing elections are the archetypal

cases for application of this exception. See, e.g., Norman v.

Reed, 502 U.S. 279, 287-88 (1992); Rosario v. Rockefeller, 410

U.S. 752, 756 n.5 (1973); Moore v. Ogilvie, 394 U.S. 814, 816

(1969); see also Branch v. FCC, 824 F.2d 37, 41 n.2 (D.C. Cir.

1987) ("Controversies that arise in election campaigns are

unquestionably among those saved from mootness under the

exception for matters 'capable of repetition, yet evading re-

view.' "); Stewart v. Taylor, 104 F.3d 965, 969 (7th Cir. 1997)

("[E]lections are routinely too short in duration to be fully

litigated, and there is a reasonable expectation that the same

party would be subjected to the same action again."); New

Hampshire Right to Life Political Action Comm. v. Gardner,

99 F.3d 8, 18 (1st Cir. 1996).

Under the "evading review" prong of this exception, we

consider "whether the challenged activity is by its very na-

ture short in duration, so that it could not, or probably would

not, be able to be adjudicated while fully live." Conyers v.

Reagan, 765 F.2d 1124, 1128 (D.C. Cir. 1985) (internal quota-

tions omitted). The DNC contends that LaRouche had ample

time to seek judicial review because Rule 11(K) was adopted

in March 1994, over two years before the convention. In

support, it cites our statement in National Black Police Ass'n

v. District of Columbia that " 'both Supreme Court and

circuit precedent hold that orders of less than two years'

duration ordinarily evade review.' " 108 F.3d 346, 351 (D.C.

Cir. 1997) (quoting Burlington N.R.R. Co. v. Surface Transp.

Bd., 75 F.3d 685, 690 (D.C. Cir. 1996)). This two-year mark,

however, serves only as a rule-of-thumb; we did not intend it

to exclude periods of slightly greater duration, as in this case.

Moreover, the date of the adoption of Rule 11(K) is not the

critical date. Indeed, had LaRouche sued as soon as the

DNC adopted the rule, his claims might well have been

declared unripe, as the rule did not mention LaRouche at all.

The Party gave no indication that it would apply the rule to

LaRouche until January 1996, just seven months prior to the

convention, a time certainly too short to permit district court

challenge and appellate review. See Burlington N.R.R. Co.,

75 F.3d at 690.

LaRouche's challenge also satisfies the "capable of repeti-

tion" prong of the exception, as "there [is] a reasonable

expectation that the same complaining party [will] be subject

to the same action again...." Spencer, 118 S. Ct. at 988

(citation and internal quotation omitted). LaRouche has

sought the Democratic Party's presidential nomination in the

past five elections. He received over half a million votes

during the 1996 primaries. And on July 18, 1997, he an-

nounced his "intention to campaign for the Year 2000 Demo-

cratic Party presidential nomination." Addendum to Appel-

lants' Br. at 57.

Defendants contend that it is "pure speculation" whether

the DNC will adopt a rule similar to Rule 11(K) for the 2000

Convention, or whether the DNC chair will apply any such

rule to LaRouche. But the Party "has not disavowed" that it

will do so. Cf. Morse v. Republican Party, 116 S. Ct. 1186,

1213 n.48 (1996) (Stevens, J.) (fact that Virginia Republican

Party "ha[d] not disavowed" practice of imposing a delegate

filing fee for its nominating convention was important factor

in concluding that controversy was capable of repetition, yet

evading review). Moreover, given the party-defining impor-

tance the DNC's briefs attach to Rule 11(K), there is at least

a "reasonable expectation" that it or something close to it will

be in place for the next convention. And given the vehe-

mence of DNC Chairman Fowler's attack on LaRouche's

credentials as a "bona fide Democrat," there certainly is a

"reasonable expectation" that future Party chairs will see

matters the same way.

Finally, we reject defendants' argument that Keane v.

National Democratic Party, 475 F.2d 1287 (D.C. Cir. 1973),

establishes that the "capable of repetition, yet evading re-

view" exception does not apply to "a post-convention ...

challenge to credentials of party-selected delegates to a Dem-

ocratic National Convention." Appellees' Br. at 10. Keane

did conclude that by 1973, a challenge to the exclusion of

delegates from the 1972 Democratic National Convention was

moot to the extent it involved the right to be seated at the

convention (although not moot to the extent it involved the

right of competing delegates to post-convention representa-

tion in national party matters). See Keane, 475 F.2d at 1288.

But while the dissenting judge protested that the case was

capable of repetition, the majority did not mention the excep-

tion at all. Indeed, nothing in the majority opinion suggests

that the delegates in Keane could have demonstrated, as

LaRouche can, that they reasonably expected to be subjected

to the same action again.

Accordingly, we conclude that Keane does not preclude

application of the capable of repetition exception to the facts

of this case. To the contrary, because "[t]here [is] every

reason to expect the same parties to generate a similar,

future controversy subject to identical time constraints if we

should fail to resolve the ... issues that arose" in 1996, we

reject defendants' effort to raise the bar of mootness. See

Norman, 502 U.S. at 288 (holding that Illinois court's decision

voiding use of party label in past election was capable of

repetition, yet evading review).

III

We turn next to defendants' contention that challenges to

party delegate-selection rules constitute nonjusticiable politi-

cal questions. Although this court twice before has rejected

that contention, see Bode v. National Democratic Party, 452

F.2d 1302, 1305 (D.C. Cir. 1971); Georgia v. National Demo-

cratic Party, 447 F.2d 1271, 1276-78 (D.C. Cir. 1971), the

DNC argues that O'Brien v. Brown, 409 U.S. 1 (1972),

subsequently established that all disputes over internal party

rules are nonjusticiable. But O'Brien did not set forth such a

broad rule; indeed, O'Brien did not even decide the applica-

bility of the nonjusticiability doctrine to the case then before

the Court.

In O'Brien, the Supreme Court considered challenges to

judgments of this court passing upon the constitutionality of

delegate-seating determinations made by the Democratic Par-

ty's Credentials Committee in advance of the 1972 national

convention. The Court noted that "these cases involve claims

of the power of the federal judiciary to review actions hereto-

fore thought to lie in the control of political parties," that

"[h]ighly important questions are presented concerning justi-

ciability," and that it "entertain[ed] grave doubts as to the

action taken by the Court of Appeals." Id. at 4-5. As the

dispute had not reached the Supreme Court until the eve of

the convention, however, the Court pronounced itself "unwill-

ing to undertake final resolution of the important constitu-

tional questions presented .... under the circumstances and

time pressures surrounding" the appeals, id., and instead

simply granted stays of the judgments pending consideration

of the petitions for certiorari.

The defendants also contend that, since O'Brien, the Su-

preme Court has consistently held "disputes over internal

party rules to be nonjusticiable." Appellees' Br. at 22. In

fact, the Court has never so held. The first case defendants

cite for this proposition is Cousins v. Wigoda, which did hold

that "[t]he National Democratic Party and its adherents enjoy

a constitutionally protected right of political association." 419

U.S. 477, 487 (1975). But that did not end the inquiry. The

Court went on to determine whether Illinois had a sufficiently

"compelling interest" to justify abridgment of the Party's

constitutional rights, id. at 489-91, and expressly "intimate[d]

no views" as to "whether or to what extent principles of the

political question doctrine counsel against judicial interven-

tion" into "decisions of a national political party in the area of

delegate selection," id. at 483 n.4.4

__________

4 Cousins, O'Brien, and Keane all related to a dispute over the

seating of Illinois delegates at the 1972 convention. In the Illinois

state primary, voters elected a slate of uncommitted delegates,

Much the same is true of the other Supreme Court deci-

sions cited by defendants, including Democratic Party v.

Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), Eu v. San

Francisco County Democratic Central Committee, 489 U.S.

214 (1989), and Tashjian v. Republican Party, 479 U.S. 208

(1986). As defendants contend, and as we will discuss in Part

V below, these cases do hold that "a State, or a court, may

not constitutionally substitute its own judgment for that of [a]

Party. A political party's choice among the various ways of

determining the makeup of a State's delegation to the party's

national convention is protected by the Constitution." LaFol-

lette, 450 U.S. at 123-24. Yet, as in Cousins, in each of these

__________

including Chicago alderman Paul Wigoda, who were associated with

Chicago Mayor Richard J. Daley. A "reform" slate, including

William Cousins, successfully petitioned the Party's Credentials

Committee to be seated in their stead. See generally Petitioners'

Opening Brief at 5-9, Cousins v. Wigoda, 419 U.S. 477 (1975) (No.

73-1106). The Wigoda delegates, in turn, sued to reverse the

Committee's decision.

In Brown v. O'Brien, 469 F.2d 563 (D.C. Cir. 1972), this court

rejected the Wigoda delegates' complaint and enjoined them from

further prosecuting an Illinois state court action they had brought

against their rivals. See id. at 571-75; see also infra note 20. In

O'Brien v. Brown, the Supreme Court stayed this court's judgment.

See 409 U.S. at 5. After the convention, the Court granted the

petition for certiorari, vacated the judgment, and remanded for

consideration of whether the case had become moot. See Keane v.

National Democratic Party, 409 U.S. 816 (1972). We held the case

moot insofar as it concerned the seating of delegates at the conven-

tion, and affirmed dismissal of the Wigoda delegates' suit. See

Keane, 475 F.2d at 1288.

Meanwhile, one day after the Supreme Court's stay of our initial

judgment, and two days before the convention, the Illinois circuit

court had ruled in favor of the Wigoda delegates and enjoined the

Cousins delegates from participating in the convention. See Cous-

ins, 419 U.S. at 480. The convention nevertheless seated the

Cousins delegates, who were subsequently threatened with criminal

contempt for violating the state court injunction. See id. at 481. In

Cousins, the Supreme Court reversed the decision of the Illinois

court in favor of the Wigoda delegates. See id. at 491.

cases the Court went on to decide the dispute on the merits.

And in LaFollette, although the Court said that "the stringen-

cy, and wisdom, of membership requirements is for the

association and its members to decide--not the courts," it

immediately qualified that statement by adding: "so long as

those requirements are otherwise constitutionally permissi-

ble." Id. at 123 n.25 (emphasis added).5

The allegations made by LaRouche do not come within the

basic criteria for political questions. For example, "[a] con-

troversy is non-justiciable--i.e., involves a political question--

where there is 'a textually demonstrable constitutional com-

mitment of the issue to a coordinate political department; or

a lack of judicially discoverable and manageable standards for

resolving it....' " Nixon v. United States, 506 U.S. 224, 228

(1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). The

first category of political questions is plainly absent here, as

no other branch of the government is involved. The impor-

tant question is whether this case falls within the second

category--that is, whether there are judicially discoverable

and manageable standards for resolving it.

Contrary to defendants' description, this case does not

come to us merely as a dispute over whether LaRouche

qualifies for delegates under internal party rules. Rather,

LaRouche contends that the Party's internal rules violate the

Voting Rights Act. In so doing, he alleges the violation of an

express and measurable statutory duty requiring covered

"state[s] or political subdivision[s]" to preclear "any voting

__________

5 In Wymbs v. Republican State Executive Committee, also

cited by defendants, the Eleventh Circuit held nonjusticiable a

challenge to Florida Republican Party rules for selection of dele-

gates to the 1980 Republican National Convention. See 719 F.2d

1072 (11th Cir. 1983). The court's holding was based in part on the

fact that, in contrast to this case, plaintiffs had failed to join the

Party's national committee as a defendant. See id. at 1081, 1086;

see also Bachur v. Democratic Nat'l Party, 836 F.2d 837, 838, 841

(4th Cir. 1987) (deciding that a constitutional challenge to 1984

Democratic National Convention rules, as implemented in Mary-

land, was "not justiciable because it is lacking in merit") (emphasis

added).

qualification ... or procedure with respect to voting different

from that [previously] in force or effect...." 42 U.S.C.

s 1973c. Although it may be difficult to determine whether

Rule 11(K) comes within the Act's terms, courts do not lack

judicially discoverable and manageable standards for making

that determination. The application of the Voting Rights

Act's language to the facts of the Party's delegate-selection

rules is a typical judicial exercise. As we will discuss in detail

below, it is an exercise the Supreme Court itself undertook

just two Terms ago--without raising the specter of a political

question. See Morse, 116 S. Ct. 1186.

Nor do the plaintiffs' constitutional (and s 1983) claims

raise a political question. Those claims arise principally

under the First Amendment and under the Equal Protection

and Due Process Clauses of the Fourteenth Amendment.

The Supreme Court repeatedly has adjudicated election dis-

putes arising under those amendments, see, e.g., Eu, 489 U.S.

at 222-33; LaFollette, 450 U.S. at 120-26; Cousins, 419 U.S.

at 487-91, thus rendering "the interpretation of [these] provi-

sions of the Constitution ... well within the competence of

the Judiciary," United States Dep't of Commerce v. Montana,

503 U.S. 442, 458 (1992) (referring to "the apportionment

provisions of the Constitution"). See Williams v. Rhodes, 393

U.S. 23, 28 (1968) (rejecting claim that challenge to state

election law was nonjusticiable political question). Although

defendants seek to distinguish the election cases as involving

"state action," while contending that this case involves noth-

ing more than the decisions of a private political party,

determining which of those two descriptions is legally correct

is part of deciding whether the DNC's actions violate the

Constitution. And "[t]hat determination is a decision on the

merits that reflects the exercise of judicial review, rather

than the abstention from judicial review that would be appro-

priate in the case of a true political question." Montana, 503

U.S. at 458.

IV

We next consider LaRouche's challenge to the district

judge's determination that Rule 11(K) and the Fowler letter

did not violate the Voting Rights Act. We conclude that both

this court and the single-judge district court below largely

lack jurisdiction to decide the merits of this issue because the

question properly belongs before a three-judge district court.

See Goosby v. Osser, 409 U.S. 512, 522 n.8 (1973).

A

Section 5 of the Voting Rights Act, 42 U.S.C. s 1973c,

states that "[a]ny action under this section shall be heard and

determined by a court of three judges in accordance with the

provisions of section 2284 of Title 28." Section 2284(b)(1), in

turn, provides that the district judge to whom a request for a

three-judge court is made "shall, unless he determines that

three judges are not required," notify the chief judge of the

circuit to convene a three-judge court. Appeals from deci-

sions of three-judge courts under section 5 must be made

directly to the Supreme Court. See 42 U.S.C. s 1973c; Allen

v. State Bd. of Elections, 393 U.S. 544, 561-62 (1969). Courts

of appeals, however, have jurisdiction to determine whether a

single district judge properly declined to convene a three-

judge court. See Gonzalez v. Automatic Employees Credit

Union, 419 U.S. 90, 100 & n.19 (1974); Idlewild Bon Voyage

Liquor Corp. v. Epstein, 370 U.S. 713, 715-16 (1962); H.R.

Rep. No. 94-1379, at 7 (1976).

It has long been the rule that single district judges may not

determine the merits of claims alleging the failure to preclear

voting changes under section 5. See, e.g., Backus v. Spears,

677 F.2d 397, 400 (4th Cir. 1982); United States v. Saint

Landry Parish Sch. Bd., 601 F.2d 859, 863 (5th Cir. 1979); cf.

Goosby, 409 U.S. at 518 (regarding three-judge court actions

under former 28 U.S.C. s 2281). Although s 2284 does

provide that a single judge may "determine[ ] that three

judges are not required," 28 U.S.C. s 2284(b)(1), a single

judge may do so only if a plaintiff's challenge is "wholly

insubstantial," League of United Latin Am. Citizens v. Texas,

113 F.3d 53, 55 (5th Cir. 1997) (quoting Goosby, 409 U.S. at

518). See also Backus, 677 F.2d at 400. The Supreme Court

made clear just how minimal a showing is required to estab-

lish substantiality in Goosby v. Osser:

"[I]nsubstantiality" for this purpose has been equated

with such concepts as "essentially fictitious," "wholly

insubstantial," "obviously frivolous," and "obviously with-

out merit." The limiting words "wholly" and "obviously"

have cogent legal significance. In the context of the

effect of prior decisions upon the substantiality of consti-

tutional claims, those words import that claims are con-

stitutionally insubstantial only if the prior decisions ines-

capably render the claims frivolous; previous decisions

that merely render claims of doubtful or questionable

merit do not render them insubstantial.... A claim is

insubstantial only if its unsoundness so clearly results

from the previous decisions of this court as to foreclose

the subject and leave no room for the inference that the

questions sought to be raised can be the subject of

controversy.

409 U.S. at 518 (citations and some internal quotations omit-

ted).6

Although the DNC contends LaRouche's challenge fails

even under the Goosby standard, it also contends that stan-

__________

6 Goosby involved a challenge to state election laws under the

Equal Protection and Due Process Clauses of the Fourteenth

Amendment, which at the time had to be made before a three-judge

district court pursuant to 28 U.S.C. s 2281. Congress repealed 28

U.S.C. s 2281 in 1976, returning jurisdiction over suits to enjoin

state statutes on constitutional grounds to single district judges.

See Act of August 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119. The

courts uniformly have applied Goosby's "wholly insubstantial" stan-

dard to requests for three-judge courts under section 5 of the

Voting Rights Act. See, e.g., League of United Latin Am. Citizens,

113 F.3d at 55; Saint Landry Parish, 601 F.2d at 863 n.6; see also

Backus, 677 F.2d at 400. Indeed, section 5 refers to the same

statutory section that s 2281 did for the procedures governing its

three-judge courts, providing, as did s 2281, that actions shall be

"determined by a [district] court of three judges [under] section

2284." 42 U.S.C. s 1973c; see 28 U.S.C. s 2281 (1970) (repealed

1976).

dard was altered when Congress amended s 2284 in 1976. It

points out that the pre-1976 version provided that "[a] single

judge shall not ... dismiss the action," 28 U.S.C. s 2284(5)

(1970) (repealed 1976), while the current version does not.

The DNC concludes that Congress must have meant, by this

deletion, to permit a single judge to grant a motion to

dismiss.

No court has noticed the language change pointed to by the

DNC or interpreted it as having such import. See League of

United Latin Am. Citizens, 113 F.3d at 55 (continuing to

apply Goosby test); Armour v. Ohio, 925 F.2d 987, 989 (6th

Cir. 1991) (same); Backus, 677 F.2d at 400 (same). There is

good reason for this. First, the legislative history suggests

that Congress did not intend the change to have any substan-

tive effect.7 Second, the section of the statute in which the

quoted provision appeared applied only to the powers avail-

able to an individual judge who was a member of a three-

judge court, not to the powers of a single judge before such a

court had been convened. See 28 U.S.C. s 2284(5) (1970)

(repealed 1976). Third, at the same time Congress deleted

the bar against a single member of a three-judge court alone

"dismiss[ing an] action," it inserted a new prohibition barring

such a single judge from "enter[ing] judgment on the merits,"

28 U.S.C. s 2284(b)(3) (1994). Hence, at most the change

merely clarified that an individual member of a three-judge

court has no more power to decide a case on the merits than a

single judge has under Goosby: neither may enter judgment

on the merits of a claim requiring action by a three-judge

__________

7 Although the legislative history does not address this change

specifically, both the Senate and House Reports explain the reasons

for other changes in the section and then note that "[t]he other

powers here given the single judge, or expressly denied him, are

similar to those stated in" the predecessor version of s 2284.

S. Rep. No. 94-204, at 13 (1975); H.R. Rep. No. 94-1379, at 7. The

legislative history also states that the "bill in no way affects the

right to a three-judge court where otherwise specifically mandated

by statute, such as in ... the Voting Rights Act of 1965...." H.R.

Rep. No. 94-1379, at 2; see S. Rep. No. 94-204, at 2.

court, i.e., a claim that is not "wholly insubstantial" or "obvi-

ously frivolous."

B

We turn, then, to the DNC's fall-back position: that even

under Goosby, LaRouche's section 5 claim must be dismissed

because that section's preclearance requirements "obviously"

do not apply to defendants' actions. In so doing, we say only

enough to determine whether LaRouche's claims are "obvi-

ously frivolous" or "wholly insubstantial," and not to intimate

a final view as to their merits.

The purpose of the Voting Rights Act was to remedy

"racial discrimination in voting ... in areas where such

discrimination had been most flagrant." Morse, 116 S. Ct. at

1192 (Stevens, J.). To that end, section 5 bars certain

covered "state[s] or political subdivision[s]" from "enact[ing]

or seek[ing] to administer any voting qualification or prereq-

uisite to voting, or standard, practice, or procedure with

respect to voting" different from that in effect on November

1, 1964, or two specified later dates, unless they have been

precleared by the Attorney General or approved by the

United States District Court for the District of Columbia. 42

U.S.C. s 1973c; see Morse, 116 S. Ct. at 1193 (Stevens, J.).8

Section 14 defines "vote" or "voting" as "all action necessary

to make a vote effective in any primary, special, or general

election" for "candidates for public or party office." 42

U.S.C. s 1973l (c)(1) (emphasis added).

Section 4 of the Act authorizes the Attorney General to

identify each "State or ... political subdivision of a state" in

which racial discrimination in voting had occurred, pursuant

to a formula set out in the section. 42 U.S.C. s 1973b(b); see

__________

8 The standard for preclearance by a district court is a showing

that the qualification or prerequisite "does not have the purpose

and will not have the effect of denying or abridging the right to vote

on account of race or color...." 42 U.S.C. s 1973c. The Justice

Department's regulations provide that "the Attorney General shall

make the same determination that would be made by the [district]

court in an action for a declaratory judgment." 28 C.F.R. s 51.52.

Morse, 116 S. Ct. at 1192. The states and political subdivi-

sions so identified are the "covered jurisdictions" of the Act,

28 C.F.R. s 51.4(c), and are listed in the Justice Depart-

ment's regulations. See id. pt. 51, app. The list includes nine

states and parts of seven others. Arizona, Louisiana, Texas,

and Virginia are all covered jurisdictions; the District of

Columbia is not. See id.

The leading case regarding the application of section 5 to

political parties is Morse v. Republican Party, 116 S. Ct. 1186

(1996). In Morse, the Supreme Court held that the Virginia

Republican Party's imposition of a registration fee on those

who wished to be delegates to the Party's nominating conven-

tion for its U.S. Senate candidate was subject to preclearance

under section 5. Justice Stevens announced the judgment of

the Court in an opinion joined by Justice Ginsburg. In his

view, "political parties are covered under s 5 ... insofar as

the Party exercises delegated power over the electoral pro-

cess," id. at 1208--that is, power " 'explicitly or implicitly

granted by a covered jurisdiction,' " id. at 1193 (quoting 28

C.F.R. s 51.7). Justice Stevens found Virginia to have made

such a delegation because, under the state's Electoral Code,

"the nominees of the two major political parties shall auto-

matically appear on the general election ballot," in contrast to

independent candidates who have to "demonstrate their sup-

port with a nominating petition." Id. at 1194. Virginia also

reserved the top two ballot positions for the major parties,

leaving independents with lower listings. See id. at 1195.

The consequence of this "dual regime," id. at 1194, Justice

Stevens said, was that the State had delegated to the Party

"the power to determine part of the field of candidates from

which the voters must choose. Correspondingly, when Virgi-

nia incorporates the Party's selection, it 'endorses, adopts and

enforces' the delegate qualifications set by the Party for the

right to choose that nominee." Id. at 1195 (quoting Smith v.

Allwright, 321 U.S. 649, 664 (1944)).

Justice Breyer, writing for himself and Justices O'Connor

and Souter, concurred in the judgment. See id. at 1213-16.

His opinion emphasized the historical concerns that led to the

passage of the Voting Rights Act, as exemplified by the

Court's White Primary Cases, see id. at 1213-14--concerns

that Justice Stevens stressed as well, see id. at 1202-04 &

n.27. In the first of the White Primary Cases, Nixon v.

Herndon, 273 U.S. 536, 540-41 (1927), the Supreme Court

struck down, as a violation of the Fourteenth Amendment, a

Texas statute barring nonwhites like plaintiff L.A. Nixon

from voting in Democratic primaries. In response, the Texas

legislature authorized the executive committees of political

parties to prescribe their own voter qualifications, and the

state Democratic Party adopted a rule limiting its primaries

to white Democrats. Nixon, once again barred from voting,

challenged the Party's action, which the Court held to be

state action invalid under the Fourteenth Amendment. See

Nixon v. Condon, 286 U.S. 73, 89 (1932). The Party then

implemented the same policy, albeit without statutory di-

rection, by adopting a resolution at a state convention re-

stricting party membership to whites. The Court struck this

down as unlawful state action as well, this time under the

Fifteenth Amendment, concluding that the Party's resolution

constituted state action even though it was not expressly

authorized by statute. See Smith, 321 U.S. at 664. After

Smith, the same discriminatory policy continued to be imple-

mented in certain Texas counties by the Jaybird Democratic

Association, a voluntary organization that conducted private

primary elections, the winners of which with few exceptions

ran unopposed in the Democratic Party primary and general

elections that followed. Once again, the Court held this

election process unconstitutional under the Fifteenth Amend-

ment. See Terry v. Adams, 345 U.S. 461, 469-70 (1953). See

generally Morse, 116 S. Ct. at 1202-03 (Stevens, J.).

When Congress passed the Voting Rights Act in 1965,

Justice Breyer wrote, it well knew the history of the White

Primary Cases. It knew that "States had tried to maintain

[the] status quo through the 'all-white' primary--a tactic that

tried to avoid the Fifteenth Amendment by permitting white

voters alone to select the 'all-white' Democratic Party nomi-

nees, who were then virtually assured of victory in the

general election." Id. at 1213 (Breyer, J.). In light of this

history, Justice Breyer concluded, "to have read this Act as

excluding all political party activity would have opened a

loophole in the statute the size of a mountain," which it was

clear Congress did not intend to do. Id.; accord id. at 1204

(Stevens, J.). He cautioned, however, that the Court should

decide nothing more than the case before it because of the

difficult First Amendment questions raised by applying pre-

clearance procedures in the context of political party conven-

tions. See id. at 1215.9

The result in Morse precludes defendants' contention that

because the state party actions of which LaRouche complains

occurred at party caucuses or conventions rather than at

state-run party primaries, section 5 preclearance "obviously"

was not required: Morse, too, involved a convention system.

Morse also poses difficulties for defendants' contention that

the claims against Fowler and the DNC are frivolous because

neither is listed as a "covered jurisdiction" under section 5:

the defendant in Morse, the Virginia Republican Party, also

was not listed. Nor can we distinguish Morse on the ground

that it did not concern delegates to a national political conven-

tion: as Justice Stevens noted, "[t]he impetus behind the

addition of the term 'party office' to s 14 was the exclusion of

blacks from the Mississippi delegation to the National Demo-

cratic Convention in 1964." Id. at 1205-06; accord id. at 1214

(Breyer, J.).10

__________

9 The dissenting justices concluded that the Virginia Republi-

can Party was not a "State or political subdivision" for purposes of

section 5, both as a matter of statutory construction, see id. at 1222-

23 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.),

and because of the First Amendment concerns noted by Justice

Breyer, see id. at 1216 (Scalia, J., dissenting, joined by Thomas, J.)

("[W]e have always treated government assertion of control over

the internal affairs of political parties ... as a matter of the utmost

constitutional consequence."); id. at 1220 (Kennedy, J., dissenting,

joined by Rehnquist, C.J.) ("The First Amendment questions pre-

sented by governmental intrusion into political party functions are a

further reason for caution....").

10 See also id. at 1196 n.18 (Stevens, J.) (noting that in

MacGuire v. Amos, 343 F. Supp. 1191 (M.D. Ala. 1972), "a three

judge court held that rules promulgated by the Alabama Democrat-

Finally, defendants contend that Morse can be distin-

guished as a case involving state party rules, while the case

before us involves national party rules. The DNC, they say,

was not acting under the authority of a covered jurisdiction

when it adopted Rule 11(K); it was acting under its own

authority. Likewise, defendants say, the state parties were

not acting under state authority when they excluded La-

Rouche delegates; they were acting under the compulsion of

the national party's rules. The problem with labeling this

distinction as "obvious" is that a similar one was considered

and rejected in Morse. Virginia had not required the party

to enact a filing fee or even to nominate its candidates in any

particular way; those decisions were the party's own. Yet,

Justice Stevens found that the freedom the State gave the

Party provided no defense. To the contrary, he said, Virgi-

nia's grant to the Party of "the right to choose the method of

nomination makes the delegation of authority in this case

more expansive, not less, for the Party is granted even

greater power over the selection of its nominees." Id. at

1196.11

__________

ic and Republican Parties governing election of national delegates

required preclearance, despite the fact that the rules were not

passed by 'the State's legislature or by a political subdivision of the

State' ").

11 The DNC notes some tension between the passage quoted in

the text and another passage distinguishing Morse from the Court's

summary affirmance of a three-judge court's decision in Williams v.

Democratic Party, Civ. No. 16286 (N.D. Ga. Apr. 6, 1972), aff'd, 409

U.S. 809 (1972). Williams held section 5 inapplicable to a Georgia

Democratic Party rule, adopted to comply with a rule promulgated

by the National Democratic Party, that governed the selection of

delegates to the national convention. Justice Stevens did describe

Williams as a case where the state "exercised no control over, and

played no part in, the state Party's selection of delegates," and

therefore where the state had "delegated no authority to the Party

to choose the delegates." 116 S. Ct. at 1197; see id. at 1197 n.19.

On the other hand, Justice Stevens went on to say that at the time

of Williams, the Attorney General's regulations did not provide

"administrative procedures for submission of" rule changes by

political parties, id. at 1197, and that that ground "would have

Justice Stevens summed up his view as follows:

The imposition by an established political party--that is

to say, a party authorized by state law to determine the

method of selecting its candidates for elective office and

also authorized to have those candidates' names automat-

ically appear atop the general election ballot--of a new

prerequisite to voting for the party's nominees is subject

to s 5's preclearance requirement.

Id. at 1206. In the case at bar, the principal covered jurisdic-

tions at issue also have authorized the state parties to deter-

mine the method of selecting their delegates. See Ariz. Rev.

Stat. s 16-243; La. Rev. Stat. s 18:1280.27; Va. Code

s 24.2-508; cf. Tex. Elec. Code ss 191.001, 191.007. And all

of the covered jurisdictions have guaranteed the major party

candidates--in this case their presidential nominees--auto-

matic positions atop the general election ballot, provided that

the parties obtain a minimum level of support in a recent

election. See Ariz. Rev. Stat. ss 16-502, -804; La. Rev. Stat.

ss 18:465, :1254, :1259; Tex. Elec. Code ss 52.091, 192.031;

Va. Code ss 24.2-101, -542, -543. Accordingly, it can hardly

be frivolous to argue from Morse that these covered jurisdic-

tions have delegated electoral power to the state parties

through the former authorization, and to the National Demo-

cratic Party through the latter guarantee.

None of this is to suggest that there may not be good

reasons to limit the reach of Morse's "delegation" theory

before it touches national party rules. One such reason is

reflected in Justice Breyer's caution, acknowledged by Justice

Stevens and stressed by the dissenters, that "First Amend-

ment questions about the extent to which the Federal Gov-

ernment, through preclearance procedures, can regulate the

workings of a political party convention, are difficult ones."

Morse, 116 S. Ct. at 1215 (Breyer, J.); see id. at 1210-11

__________

sufficed for our affirmance," id. at 1198 n.21. He also questioned

the precedential value of Williams, "not[ing] that a summary

affirmance by this Court is a 'rather slender reed' on which to rest

future decisions." Id. (quoting Anderson v. Celebrezze, 460 U.S.

780, 784-85 n.5 (1983)).

(Stevens, J.); id. at 1216-18 (Scalia, J., dissenting); id. at

1220-21 (Kennedy, J., dissenting).

There is another strong argument for shortening the reach

of the delegation theory. It is clear that what drove the

majority opinions in Morse to extend the Voting Rights Act to

state party activities was a concern generated by the histori-

cal background to the passage of the Act. The concern was

that if the statute were applied only to direct actions by the

covered states, those states might simply delegate their au-

thority to their state parties--just as the Court found had

happened in the White Primary Cases--and thus open "a

loophole in the statute the size of a mountain." Id. at 1213

(Breyer, J.). But nothing in the historical context supports a

concern that a covered jurisdiction would try to achieve this

end by delegating authority to a national party, or that a

national party would attempt to impose racially discriminato-

ry rules on a covered jurisdiction. To the contrary, the fact

that Congress restricted the application of the Voting Rights

Act to specified geographic jurisdictions indicates that it did

not have the same concerns regarding actions taken by other

jurisdictions.

But the fact that defendants ultimately may be able to

distinguish the national party rules at issue here from the

state party rule at issue in Morse does not mean that a single

district judge had the authority to dismiss LaRouche's chal-

lenge. No court has yet drawn the distinction considered

here, so we can hardly say that "prior decisions inescapably

render the claims frivolous...." Goosby, 409 U.S. at 518.

And while Morse plainly does not foreclose the distinction the

DNC needs to draw, it surely "leave[s] ... room for the

inference that the questions sought to be raised [by La-

Rouche] can be the subject of controversy." Goosby, 409 U.S.

at 518. Accordingly, because we cannot say that plaintiffs'

section 5 claims are "essentially fictitious," "wholly insubstan-

tial," or "obviously frivolous," we must remand them for

consideration by a three-judge court.12

__________

12 We do not rule on a series of additional hurdles--not reached

by the district court--that LaRouche must clear in order to estab-

We make one exception to our remand. Included among

the defendants in this case are the District of Columbia

Democratic Party, the District of Columbia Democratic State

Committee, and the chair of that committee. The District of

Columbia is not a covered jurisdiction. See 28 C.F.R. pt. 51,

app. Nor is there any allegation that the District of Colum-

bia defendants acted with the authority of any covered juris-

diction or that their actions affected voting rights in any

covered jurisdiction. Indeed, LaRouche does not even offer a

theory for section 5 coverage of the District of Columbia

defendants. See Reply Br. at 11 (discussing each of the other

categories of defendants). Therefore, because the section 5

claims are "wholly insubstantial" with respect to these defen-

dants, the district court had authority to dismiss them and we

affirm that dismissal.13

__________

lish his section 5 claim. For example, LaRouche must establish not

only that the DNC Rules and letter were effectively the action of "a

State or political subdivision," but also that they amounted to (1) a

"voting qualification or prerequisite to voting, or standard, practice,

or procedure with respect to voting," that (2) was "different from

that in force or effect" on the dates specified in the statute. 42

U.S.C. s 1973c. LaRouche also must overcome the contention of

several defendants that the district court lacks venue and personal

jurisdiction over them.

13 The Arizona defendants contend that they, too, should be

treated differently because the actions LaRouche complains of--the

cancellation of the state's presidential preference primary election

as to which he had qualified for a ballot position--was accomplished

through an Arizona state court order. See Appellees' Br. at 27

(citing Arizona State Democratic Comm. v. Secretary of State, No.

CV 96-00909 (Ariz. Super. Ct., Maricopa Co. Feb. 1, 1996)) (J.A.

342-50); see also supra note 2. But the fact that an electoral

change was ordered by a state court rather than some other state

body does not necessarily take it out of the coverage of section 5,

and we therefore cannot conclude that the claim against the Arizona

defendants is "obviously frivolous." Cf. Hathorn v. Lovorn, 457

U.S. 255, 265-66 n.16 (1982) ("[T]he presence of a court decree does

not exempt the contested change from s 5.... [Section] 5 applies

to any change reflecting the policy choices of the elected represen-

tatives of the people, even if a judicial decree constrains those

V

LaRouche also contends that Rule 11(K) and the Fowler

letter deprived plaintiffs of their rights under 42 U.S.C.

s 1983 and under the following provisions of the Constitution:

Article II, Section 1; the First and Fifth Amendments; the

Due Process and Equal Protection Clauses of the Fourteenth

Amendment; and the Fifteenth Amendment. These claims,

like the Voting Rights Act claim, are certainly not frivolous.

Here, however, the district court's jurisdiction and our stan-

dard of review are considerably different. These statutory

and constitutional claims do not require a three-judge court

for decision. Although they were asserted in the same

complaint as the Voting Rights Act claims, a single district

judge may decide them and then refer the Voting Rights Act

claims to a three-judge court. See Hagans v. Levine, 415

U.S. 528, 543-44 (1974); 17 Charles A. Wright et al., Federal

Practice and Procedure s 4235 (2d ed. 1988). And the

district court's dismissal of these claims under Fed. R. Civ. P.

12(b)(6) is subject to our de novo review. See Taylor v.

FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997).

Although LaRouche bases his claims on both s 1983 and

the Constitution, we have previously recognized that the case

law relating to s 1983 claims, and that relating to claims

brought directly under the Constitution, "have been assimilat-

ed in most ... respects." Williams v. Hill, 74 F.3d 1339,

1340 (D.C. Cir. 1996) (internal quotation and citation omitted)

(ellipsis in original); see Hafer v. Melo, 502 U.S. 21, 28 (1991);

National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S.

179, 182 n.4 (1988). LaRouche offers no argument for treat-

ing the two sets of claims differently and we therefore

address them as one.14

__________

choices.") (internal quotation omitted); Cousins, 419 U.S. 477 (hold-

ing that state court decision interpreting state election law is "state

action" for purposes of Fourteenth Amendment); League of United

Latin Am. Citizens, 113 F.3d at 55 (claim that state court interpre-

tation of previously precleared state law is subject to section 5

preclearance is not "wholly insubstantial" under Goosby).

14 LaRouche also asserted claims under 42 U.S.C. s 1985(3)

which, he contends, provides a cause of action for conspiracies to

Similarly, LaRouche presents his constitutional claims as

an amalgam of the constitutional provisions cited above. He

suggests no separate analysis for his First Amendment claims

and asserts no difference between the appropriate analyses

under the Due Process and Equal Protection Clauses.15 As

__________

violate constitutional rights even if the defendants are not state

actors. Since we conclude infra that LaRouche's constitutional

rights were not violated even if the defendants are considered state

actors, s 1985(3) does not advance LaRouche's cause. In any

event, the discussion infra also demonstrates that plaintiffs can

establish neither of the two requirements for a s 1985(3) cause of

action: "(1) that some racial, or perhaps otherwise class-based,

invidiously discriminatory animus [lay] behind the conspirators'

action, and (2) that the conspiracy aimed at interfering with rights

that are protected against private, as well as official, encroach-

ment." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263,

267-68 (1993) (alteration in original) (citations omitted); see also

United Bhd. of Carpenters of America, Local 610 v. Scott, 463 U.S.

825, 840 (1983).

15 But see infra note 37 (discussing plaintiffs' allusion to proce-

dural due process claim). In the circumstances of this case, plain-

tiff's reference to the Fifteenth Amendment also adds nothing to

the analysis. Cf. Mobile v. Belden, 446 U.S. 55, 65-67 (1980)

(plurality opinion) (applying similar analysis under both Fifteenth

Amendment and Fourteenth Amendment's Equal Protection Clause

to claim that at-large system of municipal elections was unconstitu-

tional); Shaw v. Barr, 808 F. Supp. 461, 469 n.7 (E.D.N.C. 1992)

(same for racial gerrymandering and vote dilution claims), rev'd on

other grounds sub nom. Shaw v. Reno, 509 U.S. 630 (1993).

Nor is anything added by LaRouche's passing reference to Arti-

cle II, Section 1, of the Constitution, which sets forth the qualifica-

tions for President of the United States. Although the DNC rule

may have added a qualification for the position of Democratic

candidate for President, it did not and was not intended to add a

qualification for the Office of President itself any more than would

any political party's basic requirement that its nominee be a mem-

ber of the party. Cf. Storer v. Brown, 415 U.S. 724, 746 n.16 (1974)

(state requirement that independent candidate in general election

for U.S. Representative be unaffiliated with political party "no more

establishes an additional requirement for the office of Representa-

the Supreme Court's recent election law cases also treat such

claims using a single basic mode of analysis,16 we will do so

here as well. Finally, LaRouche does not distinguish be-

tween his rights as a citizen and candidate and the rights of

his adherents as citizens, supporters, and voters. The Su-

preme Court has found these various interests closely tied

together and, except as indicated below, we find it unneces-

sary to disentangle them in order to resolve the merits of

LaRouche's challenge.17

To succeed on his claims under s 1983 and the Constitu-

tion, LaRouche and his adherents must show (1) that the

conduct they complain of is a form of "state action," 18 and (2)

__________

tive than the requirement that [an affiliated] candidate win the

primary to secure a place on the general ballot"); U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779, 835-36 (1995) (state limita-

tion on access to general election ballot violates congressional

Qualifications Clauses where it has the likely effect and sole pur-

pose of creating additional qualification for service in Congress).

16 See Anderson v. Celebrezze, 460 U.S. 780, 787 n.7 (1983)

("[W]e base our conclusions directly on the First and Fourteenth

Amendments and do not engage in a separate Equal Protection

Clause analysis. We rely, however, on the analysis in a number of

our prior election cases resting on the Equal Protection Clause of

the Fourteenth Amendment."); see also Norman, 502 U.S. at 288

n.8; Republican Party v. Faulkner County, 49 F.3d 1289, 1293 n.2

(8th Cir. 1995) ("In election cases, equal protection challenges

essentially constitute a branch of the associational rights tree.").

17 See Anderson, 460 U.S. at 786 (" '[T]he rights of voters and

the rights of candidates do not lend themselves to neat separation;

laws that affect candidates always have at least some theoretical,

correlative effect on voters.' ") (citation omitted); Bullock v. Carter,

405 U.S. 134, 143 (1972) (same); Rhodes, 393 U.S. at 30 ("In the

present situation, the state laws place burdens on two different,

although overlapping, kinds of rights--the right of individuals to

associate for the advancement of political beliefs, and the right of

qualified voters ... to cast their votes effectively.")

18 For the kind of conduct at issue here, the "under color of

state law" standard of s 1983 and the "state action" requirement

for a claim under the Constitution are synonymous. See Hafer, 502

that such action deprived them of their constitutional rights.

See Washington v. District of Columbia, 802 F.2d 1478, 1480

(D.C. Cir. 1986) (citation omitted); see also Tarkanian, 488

U.S. at 191 (holding that only state action is subject to

scrutiny under Due Process Clause of Fourteenth Amend-

ment). We examine these issues in the following sections.

A

The Supreme Court first considered whether political party

activity constituted state action in the White Primary Cases

described in Part IV above. We construed those cases

broadly in Georgia v. National Democratic Party, where we

found state action in the formulas the national parties used to

allocate delegates to national nominating conventions. See

447 F.2d at 1275-76. We viewed the White Primary Cases as

mandating that we regard the action of the individual state

parties in selecting their convention delegates as state action,

and concluded that the same was true when those parties

acted through their delegates at the national convention. We

also concluded that by placing the nominee of the convention

on the ballot, the states "have adopted this narrowing process

as a necessary adjunct of their election procedures." Id. at

1276. We followed Georgia in Bode v. National Democratic

Party, holding that the Democratic National Committee's

adoption of a formula for the allocation of delegates to its

1972 national convention was "tantamount to a decision of the

States acting in concert and therefore subject to constitution-

al standards applicable to state action." 452 F.2d at 1304-

05.19

__________

U.S. at 28 ("[I]n s 1983 actions the statutory requirement of action

'under color of' state law is just as broad as the Fourteenth

Amendment's 'state action' requirement."); Tarkanian, 488 U.S. at

182 n.4; see also Lugar v. Edmonson Oil Co., 457 U.S. 922, 935 &

n.18 (1982) (holding conduct that satisfies "state action" require-

ment of Fourteenth Amendment also satisfies "under color of state

law" requirement, but noting that conduct satisfying latter may

sometimes not satisfy former).

19 Although we found state action, we rejected plaintiffs' chal-

lenges in both Georgia and Bode on the merits. See Georgia, 447

F.2d at 1280; Bode, 452 F.2d at 1310.

We initially took the same approach again in Brown v.

O'Brien, holding that delegate-seating decisions by the Cre-

dentials Committee of the 1972 Democractic National Con-

vention constituted state action. We rejected one constitu-

tional attack on such a decision on its merits, but sustained

another attack on the ground that the Committee's action was

so unfair as to violate the Due Process Clause. See 469 F.2d

563, 565, 569-70 (D.C. Cir. 1972).20 As noted above, however,

the Supreme Court stayed that decision, leaving it to the

Convention itself to decide whether to give the litigants the

relief they had sought in federal court. Although the Court

did not decide the issue, it found that "[h]ighly important

questions are presented concerning ... whether the action of

the Credentials Committee is state action" and expressed

"grave doubts as to the action taken by the Court of Ap-

peals." O'Brien v. Brown, 409 U.S. at 4-5. In the same

opinion, the Court also seemed to limit the reach of the White

Primary Cases, noting that "[t]his is not a case in which

claims are made that injury arises from invidious discrimina-

tion based on race in a primary contest within a single State."

Id. at 4 n.1 (citing Terry, 345 U.S. 461, and Smith, 321 U.S.

649).

Three years later, in a case arising out of the same

delegate-selection battle, see supra note 4, the Supreme

Court again sidestepped the question of whether party action

was state action. In Cousins v. Wigoda, the Court held that

an Illinois court had unconstitutionally attempted to enjoin

delegates selected pursuant to Democratic Party rules from

taking their seats at the 1972 national convention. Because

the case arose in the context of a state court injunction,

however, the existence of state action was clear and it was

__________

20 Brown rejected an attack by Illinois' uncommitted Wigoda

delegates on their unseating and enjoined them from further prose-

cuting an Illinois state court action they had brought against those

who challenged their seats before the Credentials Committee. See

469 F.2d at 570-75; supra note 4. Brown upheld an attack by

California's McGovern delegates on their unseating and remanded

for entry of an order enjoining the Democratic Party from unseat-

ing them. See 469 F.2d at 566-70.

"not necessary" to determine "whether the decisions of a

national political party in the area of delegate selection consti-

tute state or governmental action." 419 U.S. at 483 n.4

(internal quotation omitted).

When we again considered the question of whether national

party action was state action, we found the answer to be

"much less clear" than we had in Georgia and Bode. See

Ripon Soc'y, Inc. v. National Republican Party, 525 F.2d

567, 574 (D.C. Cir. 1975) (en banc). Ripon involved an equal

protection challenge to the delegate-allocation formula

adopted by the Republican Party for its 1976 national conven-

tion. We noted that O'Brien had specifically questioned our

finding that decisions by a party credentials committee consti-

tuted state action, and also appeared to narrow the White

Primary Cases. See id. at 575. This gave us "reason to

question the premise of our first line of reasoning in Georgia,

i.e., that the elective processes of individual state parties

constituted state action for all purposes." Id. at 575 n.20.

We also noted that "[e]ven assuming our finding of state

action in Georgia rested ... on the ... placement of the

candidate's name on the [state] ballot," the Supreme Court's

subsequent decisions in "Moose Lodge and Jackson must still

give us pause. Both cases rejected claims of state action

based on the award to the defendants of a state benefit...."

Id. at 575 n.18.21 And we pointed out that the "nexus

between the states and the delegate-allocation formula is

open to question particularly since the Supreme Court has

also now held in Cousins v. Wigoda, 419 U.S. 477 (1975), that

an individual state is without power to interfere with the

delegate selection procedures of a national convention." 525

F.2d at 574. In light of these uncertainties, and because it

was "clear to us that plaintiffs' case must fail on its merits

without regard to whether or not there is state action," we

"decline[d] to decide" the state action question. Id. at 576.

__________

21 In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-77 (1972),

the Court held that the state's issuance of a liquor license to a

private lodge was insufficient to render the lodge's refusal to serve

an African-American "state action." In Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 358 (1974), the Court found that the

state's grant of regulated monopoly status to a privately-owned

public utility was insufficient to make the utility a state actor.

Unfortunately, the question of whether the delegate- or

candidate-selection rules of political parties constitute state

action has not become any clearer since Ripon. Subsequent

Supreme Court decisions dealing with party rules all have

involved conflicts between those rules and state laws, rather

than intra-party disputes like this one. See, e.g., Eu, 489 U.S.

at 216-19; Tashjian, 479 U.S. at 210-13; LaFollette, 450 U.S.

at 109-20. In Flagg Bros. v. Brooks, 436 U.S. 149 (1978),

however, although the Court was not faced with a challenge

to party electoral rules,22 it did in dictum again suggest a

narrow view of the White Primary Cases. Then-Justice

Rehnquist attributed the Court's finding of state action in the

White Primary Cases to a conclusion that the elections in

those cases constituted "public functions." Id. at 158. A

public function, he said, is not simply one "traditionally

performed by governments," but rather one "traditionally

exclusively reserved to the State." Id. at 157-58 (quoting

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352

(1974)).23 Moreover, he continued, "[t]he doctrine does not

reach to all forms of private political activity, but encompass-

es only state-regulated elections or elections conducted by

organizations which in practice produce 'the uncontested

choice of public officials.' " Id. at 158 (quoting Terry, 345

U.S. at 484).

If a party must produce the nation's "uncontested choice"

for President of the United States to qualify as a state actor,

the Democratic (or Republican) Party plainly does not qualify.

Nor did the actions of the DNC at issue here involve a "state-

regulated election" in the Flagg Bros. sense. Although argu-

ably the state parties could have read the Fowler letter as

instructing them to keep LaRouche off state primary ballots,

__________

22 The challenge in Flagg Bros. was to a warehouseman's

proposed sale of goods entrusted to him for storage, as permitted

by New York law. See 436 U.S. at 151-52.

23 The quotation from Jackson has been repeated in several

subsequent state action cases. See, e.g., San Francisco Arts &

Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544

(1987); Blum v. Yaretsky, 457 U.S. 991, 1011 (1982); see also

Tarkanian, 488 U.S. at 197 n.18.

there is no allegation that they attempted to do that, and an

affidavit filed by the DNC indicates that it did not intend the

letter to be read in that way. See J.A. 273 (Aff. of Richard Q.

Boylan, Director of Party Affairs and Delegate Selection for

the DNC). In fact, LaRouche participated in all of the state-

run primary elections at issue, and his adherents expressed

their support by voting for him. The rub did not come until

he wanted to use the results of those state-run primaries to

require the Party to accept his convention delegates. At that

point, the DNC simply ignored the results of the primaries

and selected delegates according to internal party rules.24

Nor does a national political convention readily fit the

Flagg Bros. description of a "public function" as one "tradi-

tionally exclusively reserved to the State." Indeed, history is

largely to the contrary. See V.O. Key, Jr., Politics, Parties

and Pressure Groups 475 (1953) (noting that the institution of

the convention "[e]volv[ed] completely outside the Constitu-

tion and laws.... [It is] an extraconstitutional, semiprivate

gathering"). But see id. at 400 ("The national conventions,

creatures of party custom, remain beyond state jurisdiction,

yet state law often prescribes the methods for the choice of

delegates to the convention.") (referring to practice prior to

the decisions in Cousins and LaFollette, discussed infra).25

__________

24 This distinguishes the case from the Eleventh Circuit's find-

ing of state action in a decision by Georgia's "presidential candidate

selection committee" to delete David Duke's name from the list of

potential Republican presidential candidates on the Georgia presi-

dential preference primary ballot. See Duke v. Cleland, 5 F.3d

1399, 1404 (11th Cir. 1993). The Georgia Code established the

committee, named its members (including the Secretary of State of

Georgia and specified state legislative officers), and gave it the

power to delete a name from the list if all committee members of

the same party as the candidate agreed. See id. at 1401-02 & n.1.

The Eleventh Circuit's decision involving a similar committee's

deletion of Duke's name from the list of candidates for the Florida

presidential primary is distinguishable on the same ground. See

Duke v. Smith, 13 F.3d 388 (11th Cir. 1994).

25 The institution of the national nominating convention, which

emerged in 1831, could be regarded as taking a step away from

This brings us back finally to the splintered majority

opinions in Morse, which appear to revive a considerably

more expansive view of state action and the White Primary

Cases than that expressed in Flagg Bros. As noted above,

the opinions of both Justice Stevens and Justice Breyer

rested their conclusions that the party was the "state" for

purposes of the Voting Rights Act on their reading of the

history of the White Primary Cases. Justice Stevens relied

particularly on the fact that Virginia reserved the two top

positions for the major parties to fill with their nominees,

thus delegating to the parties "the power to determine part of

the field of candidates from which the voters must choose."

Morse, 116 S. Ct. at 1195. He essentially rejected Flagg

Bros.' dictum that, to be classified as a state actor, the party

must produce an uncontested choice for the position. "Voting

at the nomination stage is protected," Justice Stevens said,

"regardless whether it 'invariably, sometimes, or never deter-

mines the choice of the representative.' " Id. at 1205 (quoting

__________

state action (at least under certain criteria), as it supplanted nomi-

nation by caucuses of each party's members of Congress as well as

nomination by state legislatures. See Key, supra, at 400-03; Con-

gressional Quarterly, Guide to U.S. Elections 5 (1975). Although

conventions were intended as a step toward the selection of nomi-

nees by the entire party membership, they often came under the

control of party bosses. See id. at 404-07. President Harding, for

example, reputedly won his party's nomination in the infamous

(although possibly apocryphal) "smoke-filled room" at Chicago's

Blackstone Hotel in 1920. See Edward McChesney Sait, American

Parties and Elections 590 n.93 (3d ed. 1942). Although state-run

primaries were introduced in the beginning of the 20th Century, it

was not until 1972 that the parties chose the majority of their

delegates through primaries. See Leonard P. Stark, The Presiden-

tial Primary and Caucus Schedule: A Role for Federal Regulation,

15 Yale L. & Pol'y Rev. 331, 333 (1996). Credentials challenges

have occurred at almost every convention, and the conventions

historically have been the judges of the qualifications of their

members. See Key, supra, at 458-59; Congressional Quarterly,

supra, at 11; see also O'Brien, 409 U.S. at 5 ("[F]or nearly a

century and a half the national political parties themselves have

United States v. Classic, 313 U.S. 299, 318 (1941)). And

"state delegation of selection powers to two adversaries in-

stead of just one state actor does not preclude a finding of

state action." Id. at 1208 n. 36.26 The States' authorization

to the parties to make their own decisions regarding delegate

selection was sufficient, and the absence of "extensive" state

regulation of the process was "irrelevan[t]." Id. at 1196 n.17.

The Justices' opinions in Morse on the constitutional import

of the White Primary Cases do not, of course, represent

holdings on that issue, since the question in Morse was

whether the Virginia Republican Party's actions were those of

a "state or political subdivision" under the Voting Rights Act,

and not whether they where those of a "state" under the

Constitution and s 1983. Nonetheless, Justice Stevens' opin-

ion made clear that he equated the two, and that he based his

conclusion about the Voting Rights Act on his reading of the

constitutional test of the White Primary Cases. See, e.g., id.

at 1206 ("The Voting Rights Act uses the same word as the

Fifteenth Amendment--'state'--to define the authorities

bound to honor the right to vote.... Imposing different

constructions on the same word is especially perverse in light

of the fact that the Act ... was passed to enforce that very

Amendment."). Whether Justice Breyer intended to equate

the two is much less certain. See id. at 1215 (Breyer, J.)

("We need not go further in determining when party activities

are, in effect, substitutes for state nominating primaries

because the case before us involves a nominating convention

that resembles a primary about as closely as one could

imagine."). Justice Thomas, writing for himself, the Chief

Justice, and Justice Scalia, however, had no doubt. He

described both the Stevens and Breyer opinions as "sug-

gest[ing] that the meaning of the statutory term 'State' in s 5

is necessarily coterminous with the constitutional doctrine of

__________

determined controversies regarding the seating of delegates to their

conventions.").

26 That view was in sharp contrast to the view of three of the

dissenters, who would have limited the White Primary Cases to

"state-regulated elections or elections conducted by organizations

which in practice produce the uncontested choice of public officials."

Id. at 1229 (Thomas, J., dissenting) (quoting Flagg Bros., 436 U.S.

at 158).

state action." Id. at 1228 (Thomas, J.); see also id. at 1234

("The basis for today's decision ... can only be the state

action doctrine.").

If the result in Morse signals the Court's future view of

state action in the electoral context, then there would be

grounds for concluding that the Democratic Party's conduct

here constituted state action. As noted in Part IV, the states

have delegated substantial control over the delegate-selection

process to the state party. The states also have given the

candidates that emerge from the national party conventions

various forms of preference in access to the states' general

election ballots. Cf. Mrazek v. Suffolk County Bd. of Elec-

tions, 630 F.2d 890, 894 n.8 (2d Cir. 1980) (suggesting that

nominating procedures must conform to constitutional re-

quirements because "ensured access to the ballot [may] con-

stitute[ ] a form of state action").

But even if a political party could be considered a state

actor, it is at the same time clothed with strong First

Amendment protections against intrusion by the state.27 This

is not simply a matter of dividing the universe of potential

party activities into their public (state) and private (First

Amendment-protected) spheres. The Court's cases have

made clear that the very actions at issue here--the Party's

decisions about who can be nominated as delegates and even

__________

27 See Eu, 489 U.S. at 224 ("It is well settled that partisan

political organizations enjoy freedom of association protected by the

First and Fourteenth Amendments."); Tashjian, 479 U.S. at 214

("The freedom of association protected by the First and Fourteenth

Amendments includes partisan political organizations."); LaFollette,

450 U.S. at 121 (" 'The National Democratic Party and its adherents

enjoy a constitutionally protected right of political association.' ")

(quoting Cousins, 419 U.S. at 487); see also Faulkner County, 49

F.3d at 1295 ("The Supreme Court has located political parties

roughly midway between conventional public and private institu-

tions, attributing to parties elements of both."); cf. Polk County v.

Dodson, 454 U.S. 312, 321, 325 (1981) (holding that "it is the

constitutional obligation of the State to respect the professional

independence" of public defenders, even though some actions of

public defenders may be under color of state law).

about who can be considered a Democrat--are themselves

clothed in First Amendment protection. Indeed, those cases

suggest that if the State of Louisiana had tried to assist

LaRouche by attempting to enforce the results of its primary

(which yielded him one delegate) against the DNC, it would

have been met with the bar of the First Amendment.

For example, the plaintiffs in Cousins v. Wigoda, the

Wigoda delegates, had been elected in the state-run Illinois

primary as Chicago's delegates to the 1972 Democratic Na-

tional Convention. The Cousins delegates, who had been

picked at private party caucuses, successfully challenged the

seating of the Wigoda delegates before the Credentials Com-

mittee on the ground that the latter had been selected in

violation of party rules requiring, inter alia, participation by

minorities, women and youth. The Wigoda delegates coun-

terattacked by obtaining an injunction from an Illinois court

barring the Cousins delegates from taking their seats. See

419 U.S. at 478-81 & n.1. The Supreme Court vacated the

injunction, holding that "[t]he National Democratic Party and

its adherents enjoy a constitutionally protected right of politi-

cal association," id. at 488, that the "subordinating interest of

the State must be compelling ... to justify the injunction's

abridgement of the exercise" of those rights, id. at 489

(internal quotation omitted), and that Illinois' interest in

ensuring that its primary results were honored "cannot be

deemed compelling in the context of the selection of delegates

to the National Party Convention," id. at 491.

The Court followed Cousins in LaFollette. There, the

Court ruled that the Wisconsin Supreme Court could not

insist that delegates chosen through the state's non-partisan,

open primary be seated at the 1980 Democratic National

Convention, when DNC rules provided that only voters

publicly affiliated with the Party could participate in the

delegate-selection process. "The issue," the Court said, "is

whether the State may compel the National Party to seat a

delegation chosen in a way that violates the rules of the

Party. And this issue was resolved, we believe, in Cousins v.

Wigoda." 450 U.S. at 121. Finding that the State did not

have "compelling interests ... [to] justify its substantial

intrusion into the associational freedom of members of the

National Party," the court reversed the Wisconsin court's

decision. Id. at 124-26.

The fact that the actions of the Democratic Party at issue

here themselves have a First Amendment dimension strongly

suggests that we should not apply the usual test for the

validity of electoral restraints imposed by state govern-

ments--even if we were to conclude that the Party is a state

actor. As the Court said in O'Brien, even if party delegate-

selection rules are state action, we still must consider "the

reach of the Due Process Clause in this unique context." 409

U.S. at 4; cf. Ripon, 525 F.2d at 578-79 (noting that a given

constitutional command may impose different requirements

on different parts of the state). We consider the appropriate

test to apply to the DNC rules in the next section, and apply

that test in the one thereafter. We conclude that even were

we to view Rule 11(K) and the Fowler letter as state action,

defendants did not violate constitutional rights guaranteed to

LaRouche and his supporters. For that reason, as we did in

Ripon, we assume without deciding that defendants are state

actors and proceed to the next stage of the analysis.

B

In this section we consider how strictly to scrutinize the

conduct attacked by LaRouche. LaRouche contends that the

appropriate standard is strict scrutiny, requiring the party to

demonstrate that its rules are "narrowly tailored to serve a

compelling interest." Although in the past the Supreme

Court did apply strict scrutiny to state restrictions on candi-

dates and parties seeking access to the ballot, see, e.g.,

Rhodes, 393 U.S. at 31; see also Gerald Gunther & Kath-

leen M. Sullivan, Constitutional Law 890 (13th ed. 1997),

more recent cases have employed the two-pronged approach

described in Burdick v. Takushi, 504 U.S. 428 (1992). Under

this approach, "when [First and Fourteenth Amendment]

rights are subjected to 'severe' restrictions, the regulation

must be narrowly drawn to advance a state interest of

compelling importance." Id. at 434 (internal quotation omit-

ted). However, "when a state election law provision imposes

only 'reasonable, nondiscriminatory restrictions'..., the

State's important regulatory interests are generally suffi-

cient...." Id. (internal quotation omitted); see also Tim-

mons v. Twin Cities Area New Party, 117 S. Ct. 1364, 1370

(1997).

Accordingly, even if we were to apply the Burdick test to

the DNC's rules, it would not necessarily result in strict

scrutiny. LaRouche and his supporters plainly do have First

Amendment interests at stake.28 But if the restrictions im-

posed on plaintiffs are viewed from the standpoint of the

"state's" electoral process as a whole--that is, as a combina-

tion of ballot access provided through both political party

nomination and independent candidacy--it is not necessarily

clear that the restrictions on plaintiffs were "severe." La-

Rouche's adherents still retained the right to express their

political views by supporting other Democratic nominees,

even if they could not nominate LaRouche.29 And LaRouche

retained the right to run, and his supporters the right to vote

for him, as either a third-party or independent candidate.30

__________

28 See Tashjian, 479 U.S. at 214 ("The right to associate with

the political party of one's choice is an integral part of this basic

constitutional freedom."); Anderson, 460 U.S. at 787-88 ("The

exclusion of candidates ... burdens voters' freedom of association,

because an election campaign is an effective platform for the

expression of views on the issues of the day, and a candidate serves

as a rallying-point for like-minded citizens.").

29 Cf. Anderson, 460 U.S. at 791 n.12 (finding burden imposed

by state disaffiliation requirement in Storer v. Brown less severe

than early filing deadline for independent candidates in Anderson

because, "[a]lthough a disaffiliation provision may preclude [inde-

pendent] voters from supporting a particular ineligible candidate,

they remain free to support and promote other candidates"); Tim-

mons, 117 S. Ct. at 1371, 1372 ("[Although] Minnesota's fusion ban

prevents the New Party from using the ballot to communicate to

the public that it supports a particular candidate who is already

another party's candidate," "the New Party remains free to endorse

whom it likes, to ally itself with others, to nominate [other] candi-

dates for office, and to spread its message to all who will listen.").

30 See Storer, 415 U.S. at 728 ("[T]he State must ... provide

feasible means for other political parties and other candidates to

Nor is there any reason to believe that LaRouche's ultimate

chances of becoming President would have been measurably

lessened by taking those routes than by seeking nomination

at the Democratic National Convention--where by his own

count he would have had only two of 4320 delegates. See

Appellants' Br. at 8 n.8; Appellees' Br. at 3. Accordingly,

even if the specific burden imposed on LaRouche by the DNC

Rules were "severe," the overall burden imposed by the

"state" may not have been severe enough to require strict

scrutiny under Burdick.

More importantly, we are not persuaded that the Burdick

test is appropriate for application to this case. That test,

after all, was designed for a challenge to a state law by a

citizen or political party asserting First Amendment rights,

and hence weighs the state's interests against the rights

protected by the Amendment. It was not designed for a case

in which the First Amendment weighs on both sides of the

balance. The application of judicial strict scrutiny to the

internal rules of a political party (setting aside, because they

are not at issue here, party rules that effectively control

state-run primary ballots) simply raises too many troubling

questions. 31

May a court require a political party--itself a First Amend-

ment creature--to show a compelling justification before it

__________

appear on the general election ballot."); cf. Ripon, 525 F.2d at 586

("Theoretically at least, persons dissatisfied with the choice facing

them in [the general] election may gain access to the ballot by

means other than a major party nomination."); Duke v. Massey, 87

F.3d 1226, 1233 (11th Cir. 1996) ("Duke supporters do not have a

First Amendment right to associate with him as a Republican Party

presidential candidate. Duke's supporters were not foreclosed from

supporting him as an independent candidate, or as a third party

candidate in the general election.") (citation omitted).

31 As in Ripon, we also intimate no view about what standard

should apply in a situation, like the White Primary Cases, "where

there is only one party with a realistic chance to win the election,

and where a vote in the nominating process is the only effective

vote that can be cast." 525 F.2d at 589.

may limit a putative candidate's ability to associate himself

with the party? May a court require a political party to show

that such a limitation is narrowly tailored to meet that

compelling justification? The difficulty of the issue is made

manifest by holding it up to a mirror: if a state, finding Rule

11(K) unfair, were to adopt LaRouche's position by statute

(by, for example, outlawing "litmus tests" for party nomi-

nees), could the Party be required to show a compelling

interest for its rule to invalidate the statute? We already

know the Supreme Court's likely answer to this question, as

Cousins and LaFollette presented similar situations. The

answer is that the DNC would not have the burden of

justifying its rule. To the contrary, it is the state that would

have to show that its interest was "compelling ... to justify

the ... abridgment of the exercise by ... the National

Democratic Party of [its] constitutionally protected rights."

Cousins, 419 U.S. at 489; see LaFollette, 450 U.S. at 124; see

also Eu, 489 U.S. at 225 (holding that California law barring

political party from endorsing candidates in primary "can

only survive constitutional scrutiny if it serves a compelling

governmental interest").

But if a state cannot, at the behest of a plaintiff like

LaRouche, require a political party to change its rules unless

it can show a compelling reason for retaining them, then

should it make a difference if a federal court is asked to

impose the same requirement? The federal courts, after all,

act with the authority of the "state" (i.e., the federal govern-

ment), and their intrusion into the First Amendment rights of

a political party can be as invasive as that of any state. Cf.

Tashjian, 479 U.S. at 224 (" '[A] State, or a court, may not

constitutionally substitute its own judgment for that of the

Party.' ") (quoting LaFollette, 450 U.S. at 123-24) (emphasis

added); 32 O'Brien, 409 U.S. at 5 (recognizing that "[v]ital

rights of association guaranteed by the Constitution" are

involved in federal court challenges to party delegate-seating

decisions). As we have noted above, in Cousins the Wigoda

__________

32 Although LaFollette made this statement in the course of

reversing a state court judgment, Tashjian quoted it in the context

of a federal action.

delegates asserted the authority of state law to bar the

Democratic Party from seating delegates elected according to

Party rules. The Court responded that state law could not

support such an intrusion unless the State's interests were

compelling. See 419 U.S. at 489. If the Wigoda delegates

instead had asserted the authority of the U.S. Constitution to

support the same end, would the burden of showing a compel-

ling interest have been completely reversed? We doubt such

a change in argument would have so dramatically altered the

parties' burdens.

There is yet another reason for rejecting the applicability

of strict scrutiny to intra-party rules. One of the principal

triggers for such scrutiny in the usual First Amendment

context is viewpoint discrimination. See, e.g., Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-30

(1995). Yet that trigger is of doubtful applicability in the

political party context. In this case, for example, one of

LaRouche's complaints is that "[t]he very nature of the 'test'

which is embodied in Rule 11(K)"--a test limiting candidates

to "bona fide Democrats"--is by definition "an invasion of the

free speech of candidates." Appellants' Br. at 28. Indeed,

were the State of Louisiana to adopt a similar rule for the

general election--for example, by limiting the ballot to bona

fide Democrats, or to Democrats and Republicans while ex-

cluding independents--there can be little doubt that the

State's law would fall. See Rhodes, 393 U.S. at 32 (invalidat-

ing ballot access law that "favors two particular parties--the

Republicans and the Democrats--and in effect tends to give

them a complete monopoly"); supra note 30; cf. Burdick, 504

U.S. at 434 (applying lesser scrutiny only where state imposes

"nondiscriminatory restrictions").

But it is also obvious that viewpoint discrimination by a

political party is quite another matter. Indeed, it is the sine

qua non of a political party that it represent a particular

political viewpoint. And it is the purpose of a party conven-

tion to decide on that viewpoint, in part by deciding which

candidate will bear its standard: the liberal or the conserva-

tive, the free trader or the protectionist, the internationalist

or the isolationist. Unlike a state, which is largely barred

from making such decisions, a political party must make these

decisions. Since in the end there will be only one Democratic

and one Republican Party candidate on the general election

ballot, their conventions ultimately must choose a political

viewpoint. Surely even plaintiffs would agree that if the

Democratic Party had chosen LaRouche over President Clin-

ton as its candidate in 1996, the choice would have constituted

the expression of a particular political point of view.

In sum, we conclude that even if a political party is a state

actor, the presence of First Amendment interests on both

sides of the equation makes inapplicable the test applied to

electoral restrictions where the First Amendment weighs on

only one side. As the Supreme Court has not yet had to

devise a test for such a case, we return to the one this court

applied the last time it faced a similar situation. In Ripon,

we found that plaintiffs' equal protection interest in the

delegate-selection rules of a political party was "offset by the

First Amendment rights exercised by the Party in choosing

the [delegate allocation] formula it did." 525 F.2d at 588.

Accordingly, we concluded that even if the Party were a state

actor, the Constitution was "satisfied if [the party's rules]

rationally advance some legitimate interest of the party in

winning elections or otherwise achieving its political goals."

Id. at 586-87. Notwithstanding the passage of time since it

was first announced, this test remains the one that best

effectuates the Supreme Court's direction to approach judicial

intervention in this area "with great caution and restraint,"

and to recognize "the large public interest in allowing the

political processes to function free from judicial supervision."

O'Brien, 409 U.S. at 4-5.33

C

We begin the Ripon analysis by noting that the Party

interest at issue is a "legitimate" one. "There are no racial or

__________

33 While Ripon, unlike this case, involved a "one person, one

vote" challenge, this distinction does not change our analysis.

Notably, the Ripon court thought its case was analogous to others

involving different constitutional challenges, including those under

the First Amendment. See 525 F.2d at 586 n.61.

other invidious classifications here" as there were in the

White Primary Cases. Ripon, 525 F.2d at 588; see also Eu,

489 U.S. at 232 ("This .... is not a case where intervention is

necessary to prevent the derogation of the civil rights of

party adherents."). There is, of course, viewpoint discrimina-

tion at play. But as we have already noted, there is nothing

illegitimate about that kind of discrimination in a political

party's nomination process.

Moreover, the Party's interest is not merely legitimate.

Here, the associational rights of the Democratic National

Party are at their zenith. The Party's ability to define who is

a "bona fide Democrat" is nothing less than the Party's ability

to define itself. In Eu, for example, one of the challenged

state laws "prevent[ed] party governing bodies from stating

whether a candidate adheres to the tenets of the party or

whether party officials believe that the candidate is qualified

for the position sought." 489 U.S. at 223. The Court struck

the law down. "Freedom of association," Justice Marshall

said, "means ... that a political party has a right to 'identify

the people who constitute the association' ... and to select a

'standard bearer who best represents the party's ideologies

and preferences.' " Id. at 224 (quoting Tashjian, 479 U.S. at

214, and Ripon, 525 F.2d at 601 (Tamm, J., concurring)); see

also LaFollette, 450 U.S. at 122 n.22 (" 'Freedom of associa-

tion would prove an empty guarantee if associations could not

limit control over their decisions to those who share the

interests and persuasions that underlie the association's be-

ing.' ") (quoting L. Tribe, American Constitutional Law 791

(1978)).34

The Party's effort to limit the list of candidates who can

represent themselves to the voters as Democrats "rationally

__________

34 The Eleventh Circuit reached a similar conclusion in Duke v.

Massey, holding that "[t]he Republican Party has a First Amend-

ment right to freedom of association and an attendant right to

identify those who constitute the party based on political beliefs....

Therefore the ... Republican Party did not have to accept [David]

Duke as a Republican presidential candidate. Duke does not have

the right to associate with an 'unwilling partner.' " 87 F.3d at 1234.

advance[s the] legitimate interest of the party in winning

elections." Ripon, 525 F.2d at 586-87. By narrowing the

field of those who represent it, the Party seeks to define its

values, distinguish them from those of its competitors, and

thereby attract like-minded voters. At the same time, it

seeks to prevent confusion among those voters by excluding

from its list of potential presidential nominees those who do

not share those values. Cf. Munro v. Socialist Workers

Party, 479 U.S. 189 (1986) (holding state interest in avoiding

voter confusion, ballot overcrowding, or the presence of frivo-

lous candidates sufficient to justify reasonable restrictions on

ballot access by minor parties). It advances the Party's

ability to "achiev[e] its political goals" in other ways as well.

Id. at 587. As the Court said in LaFollette, when barring

Wisconsin from requiring the Democratic Party to accept

delegates selected through the state's open primary:

Here, the members of the National Party, speaking

through their rules, chose to define their associational

rights by limiting those who could participate in the

process leading to the selection of delegates to their

National Convention. On several occasions this Court

has recognized that the inclusion of persons unaffiliated

with a political party may seriously distort its collective

decisions--thus impairing the party's essential func-

tions--and that political parties may accordingly protect

themselves from intrusion by those with adverse political

principles.

450 U.S. at 122 (internal quotation omitted).

LaRouche, of course, would dispute the applicability of this

passage, arguing that unlike the open primary voters in

Wisconsin, he is not "unaffiliated" with the Democratic Party

and does not have "adverse political principles." But the

Party itself obviously disagrees--and vociferously so. See

J.A. 73-74 (Fowler letter) ("Mr. Larouche's [sic] expressed

political beliefs ... [are] utterly contrary to the fundamental

beliefs, values and tenets of the Democratic Party....").

Nor is the Party required to accept LaRouche's self-

designation as the final word on the matter. Rather, the

Party's "freedom to join together in furtherance of common

political beliefs 'necessarily presupposes the freedom to iden-

tify the people who constitute the association.' " Tashjian,

479 U.S. at 214 (quoting LaFollette, 450 U.S. at 122); see id.

at 224 ("The Party's determination of the boundaries of its

own association ... is protected by the Constitution.").

LaRouche makes clear that his fundamental complaint is

not so much with the Party's right to define itself, but rather

with the "unfair" manner in which he contends it has done so.

Even this claim is less than fully developed. Although he

complains of the vagueness of the "bona fide Democrat"

standard, he proposes no alternative substantive definition,

and we can think of none that a court could impose within the

strictures of the First Amendment. Indeed, LaRouche does

not even propose an alternative set of procedures for select-

ing delegates, nor does he insist that the only fair procedure

would be to seat any delegate whose candidate won sufficient

votes in a primary. Instead, he asks only that the Party be

enjoined "from promulgating similar provisions as found in

Rule 11(K), in the future." Compl. p 150 (J.A. 49).

The answer to this aspect of LaRouche's complaint is that

the Party's First Amendment rights extend not only to

defining itself, but also to determining how to define itself.

The Supreme Court made this point in both Cousins and

LaFollette by upholding the Party's right to determine who

could select its delegates, notwithstanding the states' views

that a different process would be more appropriate. See, e.g.,

LaFollette, 450 U.S. at 124 ("A political party's choice among

the various ways of determining the makeup of a State's

delegation to the party's national convention is protected by

the Constitution."). The Court faced a similar question again

in Eu, where the California Elections Code dictated, among

other things, the organization and composition of the state

parties' official governing bodies. To ensure fairness to the

state's various regions, the Code required that the position of

party chair rotate between residents of northern and south-

ern California. See 489 U.S. at 216. Citing its decisions in

Cousins and LaFollette, the Court struck the law down,

saying: "[A] political party's determination ... of the struc-

ture which best allows it to pursue its political goals is

protected by the Constitution. Freedom of association also

encompasses a political party's decisions about the identity of,

and the process for electing, its leaders." Eu, 489 U.S. at 229

(internal quotations and citations omitted). "[A] State can-

not," the Court said, "substitute its judgment for that of the

party as to the desirability of a particular internal party

structure." Id. at 233.

This court reached the same conclusion in Ripon, where we

rejected the contention that the Equal Protection Clause

required the Republican Party to allocate its national conven-

tion delegates on a one-person, one-vote basis. In letting

stand the Party's practice of awarding "victory bonuses" to

states voting Republican in prior elections, we observed:

A party is .... more than a forum for all its adherents'

views. It is an organized attempt to see the most

important of those views put into practice through con-

trol of the levers of government. One party may think

the best way to do so is through a 'strictly democratic'

majoritarianism. But another may think it can only be

done (let us say) by giving the proven party professionals

a greater voice....

Ripon, 525 F.2d at 585 (footnote omitted).

A party may, of course, pay heavily at the polls for the

perception that it treats its members, delegates, or candidates

unfairly. But that is a matter for the party to weigh, and for

the people to decide in the general election. It is not a basis

upon which a court can intervene as long as the party's

processes rationally advance its legitimate interests.

Rule 11(K) and the Fowler letter were issued pursuant to

the authority duly granted to the DNC and Chairman Fowler

by the Charter and Bylaws of the Democratic Party.35 If

__________

35 The Charter of the Democratic Party provides that "dele-

gates shall be chosen ... according to the standards ... as may be

specifically authorized by the Democratic National Committee in

the Call to the Convention." See Charter of the Democratic Party

of the United States art. 2, s 4 (1995) (J.A. 281). The Bylaws

LaRouche disputed Fowler's authority or conclusions, the

place to take that dispute was to the national convention's

Credentials Committee and, if he received no satisfaction, to

the floor of the convention itself.36 As the Supreme Court

said in O'Brien, "[i]t has been understood since our national

political parties first came into being as voluntary associations

of individuals that the convention itself is the proper forum

for determining intra-party disputes as to which delegates

shall be seated." 409 U.S. at 4.37 Because the First Amend-

ment protects the decisions made by defendants in this case,

we are unable to afford plaintiffs the relief they seek.38

__________

provide that "the Chairperson ... shall exercise authority delegat-

ed to him or her by the Democratic National Committee." See

Bylaws of the Democratic Party of the United States s 12 (1995)

(J.A. 296).

36 The Call for the 1996 Democratic National Convention pro-

vided that "[t]he Credentials Committee shall determine and re-

solve questions concerning the seating of delegates and alternates

to the Convention.... The committee shall report to the Conven-

tion for final determination and resolution of all such questions."

The Call for the 1996 Democratic National Convention art.

VII(I)(1) (J.A. 325). The Convention is "the highest authority of

the Democratic Party," Charter of the Democratic Party of the

United States art. 2, s 2 (J.A. 281), and its adoption of the

Credentials Committee report determines the final roll of those who

may be seated at the Convention, see J.A. 277 (Boylan Aff.).

37 Since the Credentials Committee forum was available to

resolve LaRouche's complaint before the contested delegates were

formally seated, we reject his brief suggestion that the DNC

deprived him of a liberty interest without an "opportunity to be

heard," in violation of the Due Process Clause. In any event, our

conclusion that the Constitution protects the decisions the Party

made here would render such a procedural due process claim

untenable. We also reject LaRouche's contention that Fowler's

characterization of his political beliefs as "racist and anti-Semitic"

deprived him of a "liberty" interest without due process of law. See

Siegert v. Gilley, 500 U.S. 226, 233 (1991).

38 This conclusion applies to plaintiffs' claims against all of the

defendants, who include state party officials and committees as well

VI

The district court's dismissal of the complaint as to the

District of Columbia Democratic Party, the District of Colum-

bia Democratic State Committee, and the Chairman of the

District of Columbia Democratic State Committee is affirmed.

Plaintiffs' claims against the remaining defendants under

section 5 of the Voting Rights Act are remanded to the

district court for the convening of a three-judge court. The

district court's dismissal of plaintiffs' claims under all other

statutory and constitutional provisions is affirmed.

__________

as Fowler and the DNC. Plaintiffs' constitutional claims do not

differentiate among the groups of defendants, nor do they suggest

that the state defendants did anything other than obey the instruc-

tions of Fowler and the DNC.