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

> Court of Appeals for the D.C. Circuit · February 23, 1976 · 525 F.2d 567

URL: https://www.frixlaw.com/law-library/cases/331104

## Case

- **Full name:** The RIPON SOCIETY, INC., Et Al., Appellants, v. NATIONAL REPUBLICAN PARTY Et Al.; The RIPON SOCIETY, INC., Et Al., v. NATIONAL REPUBLICAN PARTY Et Al., Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 23, 1976
- **Citations:** 525 F.2d 567; 173 U.S. App. D.C. 350
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Bazelon, Danaher, Wright, McGowan, Tamm, Leven-Thal, Robinson, MacKinnon, Robb, Wilkey, Society, Wil-Key
- **Cited by:** 104 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/331104

## How later opinions describe it (automated extraction)

- concluding that because "the individual plaintiffs had standing to bring th[e] suit,” the presence of a party arguably lacking in standing would not "lessen the controversy, or blur the presentation of issues, or alter the course of the litigation in any way”
- noting that delegates are selected through a process that is “virtually (or even officially) [one] of appointment by party officials”
- holding that individual political party members had standing to challenge national party delegate allocation formula
- noting in the context of nominating convention that "[i]f the right to vote is a right to true participation in the elective process, then it is heavily implicated in the nomination process"
- holding that one-person, one-vote does not apply to party nominating conventions

## Opinion text

525 F.2d 567
173 U.S.App.D.C. 350
The RIPON SOCIETY, INC., et al., Appellants,
v.
NATIONAL REPUBLICAN PARTY et al.
The RIPON SOCIETY, INC., et al.,
v.
NATIONAL REPUBLICAN PARTY et al., Appellants.
Nos. 74--1337, 74--1358.
United States Court of Appeals,
District of Columbia Circuit.
Reargued en banc May 30, 1975.
Decided Sept. 30, 1975.
Certiorari Denied Feb. 23, 1976.
Sec 96 S.Ct. 1147 , 1148.
Robert M. Pennoyer, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom George M. Coburn, Washington, D.C., was on the brief, for appellants in No. 74--1337 and appellees in No. 74--1358.
William C. Cramer and Erwin N. Griswold, Washington, D.C., with whom Benton L. Becker, Washington, D.C., was on the brief, for appellants in No. 74--1358 and appellees in No. 74--1337.
Sheldon S. Cohen and Julie Noel Gilbert, Washington, D.C., filed a brief on behalf of The Democratic National Committee as amicus curiae urging reversal.
Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges sitting en banc.
Opinion for the court filed by Circuit Judge McGOWAN.
Opinion filed by Circuit Judge MacKINNON, concurring except with respect to the standing of Ripon Society.
Opinion filed by Senior Circuit Judge DANAHER, concurring in the result.
Opinion filed by Circuit Judge TAMM, with whom Circuit Judge ROBB joins, concurring in the result.
Opinion filed by Circuit Judge WILKEY, with whom Senior Circuit Judge DANAHER joins, concurring in result only.
Dissenting opinion filed by Chief Judge BAZELON.
McGOWAN, Circuit Judge:
1
For the third time in four years, this court confronts a challenge from within one of the two major national political parties to the formula fixed by it for the allocation of delegates to its quadrennial national convention. In the earlier instances, divisions of this court held such challenges to be unavailing for want of merit. Today, for the reasons set forth hereinafter, the court en banc reaches the same result with respect to the present appeal.
2
* The subject of the appeal is the delegate allocation formula adopted by the National Republican Party for its 1976 convention. The Ripon Society and nine individual plaintiffs 1 have secured the judgment of the District Court that parts of that formula are unconstitutional. 369 F.Supp. 368 (D.D.C.1974). The ruling of the District Court is not the first one made in plaintiffs' favor. In 1971 they sued to enjoin the use of a similar allocation formula at the 1972 Republican National Convention. Partial relief was granted in April of 1972. 343 F.Supp. 168 (D.D.C.1972). That judgment was stayed by Justice Rehnquist, 409 U.S. 1222 , 93 S.Ct. 1475 (1972), and the convention was conducted as planned. Thereafter the appeal from the District Court was dismissed, and the complaint amended to state the present challenge to the 1976 formula.
3
That formula was adopted, on a vote of 910 to 434, by the delegates to the 1972 convention. It provides as follows: 1,605 delegates, or 72 percent of the total, are allocated according to the states' electoral college votes, each state to receive three delegates per presidential elector; 312 delegates, or 14 percent, are awarded as 'victory bonuses' to states voting for the Republican candidate in the last presidential election, each such state to receive a number of additional delegates equal to 60 percent of its electoral college vote, or 20 percent of its electoral college-based delegation (the 'proportional victory bonus'); 245 delegates, or 11 percent, are divided equally among the states that voted for the last Republican presidential candidate, each such state to receive five delegates on this basis (the 'uniform victory bonus'); 2 50 delegates, or 2 percent, are awarded to the states for Republican election successes at the state level, one such delegate for each Republican governor, senator, or majority of United States Representatives which the state elects in 1972 or a succeeding year prior to the 1976 convention (this bonus will be considered part of the 'uniform victory bonus'); 3 and 30 delegates, or 1 percent, are divided among the District of Columbia (14), Puerto Rico (8), Guam and the Virgin Islands (4 each.)
4
Declaratory and injunctive relief was sought on the ground that the formula as a whole, and in particular its various victory bonus features, denied plaintiffs equal protection of the laws. Plaintiffs proposed that the Republican National Committee by permitted to fashion a new formula 4 subject to the constraints that (1) a 'substantial' number of delegates be allocated according to the Republican vote in one or more recent elections, (2) the remaining delegates be apportioned on the basis of population or electoral college vote, (3) the District of Columbia be treated for allocation purposes as a state, and (4) the territories receive a number of delegates no greater than what they would be entitled to on a population basis.
5
The district judge granted relief only in part. Ruling on cross-motions for summary judgment, he forbade the use of uniform victory bonuses, but upheld the formula in other respects. 369 F.Supp. at 376 . Plaintiffs have appealed the denial of additional relief; defendants have appealed the granting of any relief at all.
II
6
Defendants assert that there are preliminary issues which, if rightly decided, preclude our reaching the merits. These involve the concepts, respectively, of standing to sue, state action, and justiciability. In this part of the opinion, we address these issues in succession.
7
A. Standing.
8
The standing requirement serves many purposes, including that of seeing to it that claims are prosecuted to binding resolution on the merits only by those with a sufficient interest to assure an informed and effective presentation. We would not wish to rule one way or the other in this case without satisfying ourselves that that requirement had been met. 5
9
We focus first on the individual plaintiffs. Each of the nine is alleged in the supplementary complaint to be a 'citizen of the United States, a Republican, a registered and qualified voter of the District of Columbia or of . . . California, Illinois, Indiana, Massachusetts, Minnesota, New Jersey (or) New York.' We think that we may fairly take this as an assertion by each plaintiff of an interest in being represented, through the delegation of his or her state or district, at the National Republican Convention. 6 We see no reason to differentiate, for purposes of the standing requirement, between that interest, and the interest of one seeking representation in a state or national legislature. There is of course no doubt that in the latter context an individual, claiming that his vote is diluted because his representative represents a greater number of constituents than do other representatives in the same assembly, has standing to challenge the constitutionality of the apportionment scheme. Baker v. Carr, 369 U.S. 186 , 204--208, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). The only remaining question is whether the claims of malapportionment in this case are in fact made by plaintiffs whose representation would be improved if those claims were to prevail.
10
There appears to be at least one such plaintiff for each claim. It is argued that the formula as a whole deviates too far (in favor of the less populous states) from proportionality to electoral college representation, to total population, and to the Republican vote in past elections. If so, plaintiffs Halliwell, Silverman, White and Vradenburg, residents of California, New York, Illinois and New Jersey, respectively, clearly stand to benefit. 7 Victory bonuses in general are said to violate the Constitution. If so, there will be a clear benefit to plaintiff Behn, a resident of Massachusetts, the only state which did not cast its electoral vote for the 1972 Republican nominee. 8 To the extent the victory bonuses are opposed only for the form they take, i.e., uniform and electoral college-based, the plaintiffs from California, New York, Illinois, and New Jersey once again have concrete reason to complain. Finally, the District of Columbia and the territories are allegedly over-represented. All plaintiffs other than Gillette are residents of states, and thus have a sufficient stake in the matter.
11
The standing of the Ripon Society is more doubtful. It describes itself as a 'nationwide organization of young business, professional and academic men and women organized to engage the talents and energies of thinking young people in the cause of constructive Republicanism.' Its publications are said to provide 'a forum for fresh ideas, well-researched proposals and a spirit of criticism within the Republican Party.' Its National Executive Committee authorized this action 'to ensure fair and constitutional representation at Republican National Conventions.'
12
Yet the Society claims no harm to itself, 9 nor even to any interest to which it is particularly dedicated. 10 Certainly there may be harm to some of its members, but a party may not ordinarily assert the rights of others, 11 and the Ripon Society has not made a strong case for being excepted from this rule. It makes no claim that its members are uniquely, or even predominantly, injured. 12 It gives no reason to believe that those members who are adversely affected cannot assert their own rights. 13 It seems, in short, merely to have an Executive Committee whose 'spirit of criticism' extends to the allocation formula for convention delegates.
13
Whether the standing requirement has been so far relaxed as to be satisfied by this coincidence alone is, however, a question we need not decide in this case. We have concluded that the individual plaintiffs had standing to bring this suit. The purpose of the requirement is to ensure the presence of a jurisdictional case or controversy, and of 'that concrete adverseness which sharpens the presentation of issues.' 14 We cannot see how the Ripon Society's participation in this case could lessen the controversy, or blur the presentation of issues, or alter the course of the litigation in any way. 15 If the trial judge erred in refusing to strike the Ripon Society as a plaintiff for lack of standing, this error was harmless.
14
B. State Action.
15
As their claim is founded entirely on provisions of the United States Constitution which apply only to the federal and state governments, essential to the merits of plaintiffs' case is the proposition that a national party's allocation of convention delegates constitutes 'state action.' 16 We found such action in Georgia v. National Democratic Party, supra note 5--the first of our prior decisions on delegate allocation. Our reasoning was that since the action of individual state parties in selecting their candidates, and indeed their convention delegates, was state action, it could not be otherwise when those parties acted through their delegates at the national convention. Id. at 1274--75. We also concluded that by placing the nominee of the convention on the ballot, the states 'adopted this narrowing process as a necessary adjunct of their election procedures,' and thus subjected it to constitutional scrutiny. Id. at 1275--76. We adhered to our Georgia holding in Bode v. National Democratic Party, 146 U.S.App.D.C. 373 , 452 F.2d 1302, 1304 (1971), cert. denied, 404 U.S. 1019 , 92 S.Ct. 684 , 30 L.Ed.2d 668 (1972). As the question now comes to us a third time, however, its answer is much less clear.
16
The Supreme Court has in the meantime decided Moose Lodge No. 107 v. Irvis, 407 U.S. 163 , 92 S.Ct. 1965 , 32 L.Ed.2d 627 (1972), and Jackson v. Metropolitan Edison Co., 419 U.S. 345 , 95 S.Ct. 449 , 42 L.Ed.2d 477 (1974), taking a different, and arguably narrower, view of what constitutes 'state action' than is reflected in our Georgia decision. 17 The Supreme Court focused in each of those cases on the 'nexus between the State and the challenged action' of the ostensibly private entity, rather than on that entity's relationship to the state in general. 419 U.S. at 351 , 95 S.Ct. 449 . See also 407 U.S. at 173 , 92 S.Ct. 1965 . 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 , 95 S.Ct. 541 , 42 L.Ed.2d 595 (1975), that an individual state is without power to interfere with the delegate selection procedures of a national convention. 18
17
Nor can we take much comfort from the obvious distinctions between these cases and ours. In O'Brien v. Brown, 409 U.S. 1 , 92 S.Ct. 2718 , 34 L.Ed.2d 1 (1972), the Democratic National Party sought review of an order of this court ( 152 U.S.App.D.C. 157 , 469 F.2d 563 ) that a number of delegates disqualified by the Party's Credentials Committee be seated at its 1972 convention. The Supreme Court per curiam stayed our order, professing 'grave doubts' as to its propriety. 19 Our finding of state action on the part of the Credentials Committee was specifically questioned. To be sure, O'Brien is itself distinguishable as a case not involving the allocation of delegates among the states. Justice Rehnquist at least would apparently not consider this distinction persuasive, since he relied exclusively on O'Brien when he stayed the District Court's earlier order in this very case. 20
18
If plaintiffs' prospects for success on the state action issue have been somewhat dimmed by the actions of the Supreme Court, they have conceivably been somewhat brightened by those of the Congress. The Federal Election Campaign Act Amendments of 1974, approved on October 15, 1974, provide for federal financing of the 1976 presidential nominating conventions. 21 The national committees of the Republican and Democratic Parties are each to receive two million dollars to defray convention expenses. 22 The presidential primaries, in which many of the delegates to those conventions will be elected, are to receive federal support in the form of a partial matching of the funds raised by candidates running in those primaries. 23 The federal government is also to subsidize the general election campaigns of the party nominees to the tune (potentially) of twenty million dollars for each major party candidate. 24
19
If the parties' conventions, and their candidates, are to be so far underwritten by the federal government, then perhaps they must share its constitutional obligations. Of course the public financing provisions may never actually be put into effect. The Supreme Court will soon review an en banc decision of this court upholding the constitutionality of these public financing provisions. 25 The entire matter is thus in a state of some uncertainty.
20
Because, as the Supreme Court said in O'Brien, the existence of state action is a difficult and 'highly important question,' because it may well be a very different question when the matter of federal financing is settled, and because it cannot in any case affect the outcome of this appeal, we decline to decide it. As elaborated below, it is clear to us that plaintiffs' case must fail on its merits without regard to whether or not there is state action, a question which we therefore expressly reserve. 26 C. Justiciability.
21
We pretermit the question of whether the validity of a national political party's actions in apportioning convention delegates is justiciable in the federal courts. This also was a matter decided in Georgia, 447 F.2d at 1276--78, regarded as settled in Bode, 452 F.2d at 1305 , and subjected to 'grave doubts' in O'Brien, 409 U.S. at 4--5, 92 S.Ct. 2718 . While it is not, like the state action question, one which rests upon shifting statutory ground, it is nonetheless one of obvious difficulty.
22
Georgia and Bode were decided in the wake of Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962), and Powell v. McCormack, 395 U.S. 486 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969), two decisions which seemed to drain the 'political question' doctrine of much of its vitality. 27 The Court in the former case declared that 'the mere fact that the suit seeks protection of a political right does not mean it presents a political question.' 369 U.S. at 209 , 82 S.Ct. at 706 . Such questions were said to arise from 'the relationship between the judiciary and the coordinate branches of the Federal Government.' Id. at 210 , 82 S.Ct. at 706 . Arguably the question now before us is nonjusticiable under Baker because of a 'lack of judicially discoverable and manageable standards for resolving it.' Id. at 217 , 82 S.Ct. at 710 . Yet the Baker Court considered 'manageable' for legislative apportionment schemes a standard quite similar to the one we apply below to delegate apportionment schemes. It held that legislative schemes were to be struck down only if they 'reflect . . . no policy but simply arbitrary and capricious action.' Id. at 226 , 82 S.Ct. at 715 .
23
Powell appeared to curtail the 'political question' doctrine even further. Faced with what might have been thought the classically 'political question' of whether the House of Representatives--a coordinate branch--had properly excluded one of its members, the Court found the question justiciable. Significantly for our case, it rested that finding in part on the involvement of the right to choose one's own representatives, which compelled it to 'resolve any ambiguity in favor of a narrow construction of the scope of Congress' power.' 395 U.S. at 547 , 89 S.Ct. at 1977 . In seemingly sharp contrast with this approach, we have been more recently admonished by the Court to exercise 'great caution' before we 'interjest (ourselves) into the deliberative processes of a national convention, . . . involving as they do, relationships of great delicacy that are essentially political in nature.' O'Brien v. Brown, 409 U.S. at 4 , 92 S.Ct. at 2720 .
24
In declining to decide the question of justiciability, we note its close relationship to the question we do decide, that is to say, the merits of the constitutional claim. Defendants' arguments for nonjusticiability are that the 'manageable' one person, one vote standard is inapplicable, and that without it a court has no basis for evaluating the political judgments that parties make in choosing among alternative delegate allocation schemes. Our view is not so different. We agree that a strict one person, one vote standard is inapplicable, and, since we consider the party's choice among allocation schemes to be as much an exercise as an infringement of constitutional rights, we cannot say that it offends the Constitution. What we decline to do, however, is to take the more drastic step of holding that we would never be competent to reach a contrary conclusion. 28
III
25
Having assumed arguendo that defendants are subject to justiciable constitutional limitations, we confront the question of whether those limitations have been exceeded in this case. Our discussion falls into two parts, the first dealing with what in general the Constitution requires in the allocation of delegates to a national political convention, and the second inquiring as to whether this particular formula satisfies those requirements.
26
A. Applicability of One Person, One Vote.
27
As noted above, plaintiffs rely primarily on the constitutional guarantee of equal protection. They analogize the Republican National Convention to the state legislatures in which that guarantee has been held to require representation on a 'one man, one vote' basis. Plaintiffs propose that the constituency whose members are each to have 'one vote' be either the entire population of a state, or that part of it that voted Republican in one or more past elections. Their entire argument is couched in terms of the challenged formula's deviations from proportionality to those constituencies. Although they would apparently accept some such deviations, they would set as an outer limit the deviations present in the electoral college. The disproportionality introduced by the victory bonus system they do not consider justifiable. In short, they argue that, whichever of its permissible constituencies the Republican Party chooses to represent at a national convention, it must represent those constituents as a legislature would, and give them mathematically equal representation or have a compelling reason not to. That is the essence of the claim, and also its essential fallacy. 29
28
The fact that the conduct of a national political convention may be subject to the Equal Protection Clause does not in itself establish the applicability of the one person, one vote rule. Manifestly, a given constitutional command may not require of one part of the state what it requires of another. The army and the park commissioner are not equally constrained by the First Amendment; the President is not subject to the same restraints in making appointments as Congress is in passing legislation. And indeed it is clear that the Equal Protection Clause does not impose the same one person, one vote rule upon all elected and decision-making bodies, even if they are formally and indisputably organs of the state.
29
That rule is not, for example, applicable to the election of state judges. The plaintiffs in Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), challenged the federal constitutionality of the provisions in the Louisiana Constitution for the election of the justices of that state's supreme court from judicial districts of unequal population. It was held that 'the rationale behind the one-man, one-vote principle, which evolved out of efforts to preserve a truly representative form of government, is simply not relevant to the makeup of the judiciary.' Id. at 455 . The Supreme Court affirmed. 409 U.S. 1095 , 93 S.Ct. 904 , 34 L.Ed.2d 679 (1973) (memorandum). 30
30
At lease one federal district court and four state supreme courts have similarly held that the one person, one vote principle is inapplicable to state constitutional conventions, which 'can only make proposals which can have no effect unless . . . ratified in another election (with) every vote given the same weight.' Driskell v. Edwards, 374 F.Supp. 1, 3 (W.D.La.), vacated, 419 U.S. 812 , 95 S.Ct. 26 , 42 L.Ed.2d 38 (1974), 31 quoting from West v. Carr, 212 Tenn. 367 , 370 S.W.2d 469, 474 (1963), cert. denied, 378 U.S. 557 , 84 S.Ct. 1908 , 12 L.Ed.2d 1034 (1964). Accord, Bates v. Edwards, 294 So.2d 532, 534 (La.1974); Stander v. Kelley, 433 Pa. 406 , 250 A.2d 474, 481 , cert. denied sub nom. Lindsay v. Kelley, 395 U.S. 827 , 89 S.Ct. 2130 , 23 L.Ed.2d 738 (1969); Livingston v. Ogilvie, 43 Ill.2d 9 , 250 N.E.2d 138 , 145--46 (1969).
31
We know also that the one person, one vote requirement, though generally applicable to local as well as state and federal assemblies, 32 does not apply to certain 'special purpose' assemblies whose decisions 'disproportionately affect different groups.' Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 727 , 93 S.Ct. 1224 , 35 L.Ed.2d 659 (1973). Though it had required equal representation on local school and higher education boards, 33 the Supreme Court in Salyer permitted the directors of a water storage district to be elected by agricultural land owners only, with the latters' votes being weighted according to the valuation of their lands. It was reasoned that 'the district does not exercise what might be thought of as 'normal governmental' authority' and that 'all of the costs of district projects are assessed against land by assessors in proportion to the benefits received.' Id. at 729 , 93 S.Ct. at 1230.
32
Obviously, these exceptions to the one person, one vote requirement occur in contexts too far removed from that of a national political convention for them to be dispositive of the case before us. They do demonstrate, however, that the principle of one person, one vote is not an absolute, to be unthinkingly invoked every time two or more persons are selected to make decisions on other people's behalf, even if the making of those decisions is very plainly 'state action.' The constitutional command is not one person, one vote but equal protection of the laws, and what it requires by way of representation in a given assembly must depend on the purposes for which the assembly is convened and the nature of the decisions it makes. The Supreme Court's inquiry into these matters has led it to the conclusion that where the assembly exercises formal governmental powers one person, one vote is ordinarily required. A similar inquiry in other contexts may well reveal that the public and private interests in making decisions through some other scheme of representation outweigh the interests served by numerically equal apportionment.
33
We think the national political parties may validly so conclude with respect to their presidential nominating conventions. As explained more fully below, these have never had, or been conceived as having, the function of providing a strict one person, one vote representation to a definable national constituency. Weighted representational schemes are only one of the numerous and scarcely distinguishable ways, some of them having judicial sanction, in which the political parties conduct their affairs in something short of a scrupulously democratic fashion. Most significant, the interests they advance by adopting representational schemes of their own choosing seem to us to be of great importance and of clearly constitutional stature.
34
Political parties are nowhere referred to in the Constitution--not surprisingly in view of their low reputation among our nation's founders. Washington warned his countrymen 'in the most solemn manner against the baneful effects of the spirit of party,' 34 and Madison thought it a principal task of the new Constitution to hold the 'mischiefs of faction' in check. 35 Nonetheless we have had political parties pretty much from the beginning, 36 and with rare and early exceptions we have chosen our Presidents from among the candidates those parties put forward. 37 Like the election itself, early political nominations for President were anything but democratic. Throughout the first part of the eighteenth century they were made by party caucuses--usually comprised of that party's delegation to Congress. Credit for the downfall of 'King Caucus' is generally given to Andrew Jackson who successfully fought for, and benefited from, a change to the ostensibly more democratic convention systen. 38 That system appears to have been firmly in effect in both major parties by 1840, and in substantially the same form that we are familiar with today.
35
From the start delegate votes at the convention were apportioned according to each State's electoral college vote. 39 Indeed it is somewhat ironic that the convention, the first major reform of the nominating process, brought with it an apportionment scheme that bore no relation at all to the relative strength of the parties in the various states, whereas the congressional caucus reflected that strength quite accurately. 40
36
There was recurrent criticism of electoral college-based apportionment, particularly in the Republican Party, where it gave inordinate control to delegates from southern States in which the Party had no hope of electoral success. Reform finally came in 1913, and in a way which presents a second irony for this case: the electoral college basis was in effect retained, but an extra vote was awarded to congressional districts which had voted Republican in past elections. 41 Party strength was thus reinstated as a basis for delegate apportionment through a bonus vote system such as the one to which plaintiffs so strenuously object. 42 The Party has employed some such mixture of electoral college-based and bonus votes ever since. 43
37
We mention these few historical facts not because we think that what has been true in the past must always remain so, but merely to put the matter in perspective. In requesting that we impose a one person, one vote rule on the Republican Party, plaintiffs are not asking us to correct a historical aberration contrived at the 1972 convention. They are inviting us to take into judicial hands a process of change and adaptation that still continues within the Party.
38
We have twice declined that invitation in the Georgia and Bode cases. It is particularly significant that in the latter case we expressly upheld the parties' long-standing practice of apportioning delegates according to electoral college strength. 44 The Democratic Party formula challenged in Bode allocated 54 percent of the delegates on that basis. Although it allocated the remaining 46 percent according to Democratic voting strength as measured in past elections, it was not for that reason, or even because of the analogy to the electoral college itself, that we sustained the formula. Electoral college apportionment was perceived to have an 'independent rationality for its use,' which was that it reflected 'a judgment exercised toward maintaining and enlarging party appeal on a national scale.' 452 F.2d at 1309 .
39
In thus upholding electoral college apportionment we have in effect already discarded the notion that national convention delegates must represent some constituency on a one person, one vote basis. 45 Electoral college apportionment obviously is not related to any set of Republican Party members or adherents. It bears some relation to total population, but only a very rough one. 46
40
There are any number of other party practices which are seemingly inconsistent with a strict one person, one vote requirement, and which either have survived judicial scrutiny or, we think, would surely do so if challenged. They at least demonstrate the size of the task that the courts would be undertaking were they to impose a one person, one vote rule on the presidential nominating process.
41
The Republican Party does much of its business through a National Committee, which is malapportioned to the extent of being comprised of two members from each state. 47 Moreover, one of the members must be a woman and one a man, a condition of dubious validity in respect of membership in, let us say, a state legislature. 48 A committee system of such malapportioned and predetermined membership has historically dominated both parties down to their grass roots. 49 They have been excused from equal representation requirements on the ground that they only administer the party's 'internal affairs,' 50 but the distinction is not a strong one. In addition to conducting the national convention 51 the National Committee dispenses patronage and party funds. 52 It makes numerous important political decisions during the periods between national conventions--whose policies are favored in party publications and pronouncements, whose local campaigns are aided by appearances of nationally prominent party members, and so on. The fortunes of presidential hopefuls rise and fall with such decisions.
42
Turning to the delegates themselves, a party might well wish to impose conditions on delegate selection which are inconsistent with an unconstrained, mathematically equal system of representation. The Democratic Party recently did so by establishing quotas for the membership in state delegations of minorities, women, and young people. 53 Could a national convention take the more drastic step of refusing for some reason perceived to be in the Party's best interests to seat a State's delegation at all? Apparently so. The Supreme Court stated in Cousins v. Wigoda that '(t)he Convention was under no obligation to seat the respondents (Whom the Illinois court ordered seated) but was free . . . to leave the Chicago seats vacant and thus defeat the objective.' 419 U.S. at 488, 95 S.Ct. at 548.
43
'Equal' apportionment of delegates among the states is presumably sought in order to insure 'equal' representation of the prople in those states. Yet the actual selection of delegates at the state level varies from the highly democratic to the opposite extreme. In a number of states the selection is made not in a primary election but through a series of local, county, and state caucuses and conventions. Often these are malapportioned, 54 and often voter participation is so slight as to make the selection process one virtually (or even officially) of appointment by party officials. 55 A practice that is more defensible perhaps, though scarcely more 'democratic,' is the granting of ex officio delegate status to party officials or public office holders, presumably because of their special wisdom and expertise. 56
44
There are a number of respects, then, in which the parties conduct their affairs other than by giving equal attention to the preferences of all voters, or even all party adherents. 57 Perhaps this is not surprising. A party is after all 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 control of the levers of government. 58 One party may think that the best way to do this is through a 'strictly democratic' majoritarianism. But another may think it can only be done (let us say) by giving the proven party professional a greater voice than the newcomer. Which of these approaches is the more efficacious we cannot say, but the latter certainly seems a more accurate description of how political parties operate in reality.
45
What is important for our purposes is that a party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution as much if not more than its condemnation. The express constitutional rights of speech and assembly are of slight value indeed if they do not carry with them a concomitant right of political association. Speeches and assemblies are after all not ends in themselves but means to effect change through the political process. If that is so, there must be a right not only to form political associations but to organize and direct them in the way that will make them most effective.
46
The Supreme Court has frequently stressed the close kinship of the freedoms of speech and of political association. See, e.g., Kusper v. Pontikes, 414 U.S. 51 , 56--57, 94 S.Ct. 303 , 38 L.Ed.2d 260 (1973); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958). It has declared that '(a)ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.' Sweezy v. New Hampshire, 354 U.S. 234, 250 , 77 S.Ct. 1203, 1212 , 1 L.Ed.2d 1311 (1957). It has invoked the First Amendment to strike down state restrictions on access to the general election ballot, stating that '(t)he right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes.' Williams v. Rhodes, 393 U.S. 23 , 30--31, 89 S.Ct. 5, 11 , 21 L.Ed.2d 24 (1968). 59
47
Last term the Court in Cousins v. Wigoda placed the internal workings of a political party squarely within the protection of the First Amendment. The delegates whom the Illinois courts had ordered seated in that case had been selected in accordance with Illinois law, but not the Democratic Party's Guidelines. Illinois claimed 'a compelling interest in protecting the integrity of its electoral process.' The Court held that this interest could not prevail against the 'constitutionally protected rights of association' which the Party exercised in seating the delegation of its choice. 419 U.S. at 489, 95 S.Ct. 541 . Nor can the case be explained as one in which the Court was preferring the delegates who were elected in the clearly more democratic way: those whom the Illinois courts ordered seated were elected in primaries; those who were seated by the Party were chosen in private caucuses. Id. at 478--80, 95 S.Ct. 541 . If First Amendment rights are exercised when a Party determines the make-up, or perhaps even the existence, of state delegations, we think the same is true when it determines their size.
48
The First Amendment is of course not our only concern. We are keenly aware that '(a)s a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made.' 60 If the right to vote is a right to true participation in the elective process, then it is heavily implicated in the nomination process. We do not deny this, but rest our judgment on the view that, as between that right and the right of free political association, the latter is more in need of protection in this case. As is further elaborated below, the right to organize a party in the way that will make it the most effective political organization seems clearly at stake here. The right of one person to one vote is of course preserved in the general election. Theoretically at least, persons dissatisfied with the choice facing them in that election may gain access to the ballot by means other than a major party nomination. They could, of course, form their own party. Of more practical importance is the fact that there are two major parties, which for the time being at least are in intense competition. Persons not heard in one party may be welcomed in the other, and if there are enough such defections, the offending party may lose the general election, as both parties must be well aware. 61
49
We conclude, therefore, that the Equal Protection Clause, assuming it is applicable, does not require the representation in presidential nominating conventions of some defined constituency on a one person, one vote basis. It is satisfied if the representational scheme and each of its elements rationally advance some legitimate interest of the party in winning elections or otherwise achieving its political goals. We turn, then, to the question of whether the challenged formula meets this test.
50
B. Justifications of the Challenged Formula.
51
By far the greatest number of delegates (72 percent) are allocated according to the electoral college vote of the States. We upheld this as a basis of representation in Bode; and we pursue the matter further only because the justification for electoral college apportionment carries within it much of the justification for this entire formula. A State's share of the electoral college vote only roughly approximates its share of the population. It precisely reflects the relative importance of the state to the party in terms of winning the presidential election. As we stated in Bode, 'the primary function of a national party convention . . . is to select among a field of available persons Presidential and Vice-Presidential candidates most competent to perform the duties of office, yet capable of attracting a sufficient number of popular votes to carry the requisite number of States in the election.' 452 F.2d at 1309 (emphasis added).
52
The 'requisite number of States' is the number with a majority of electoral college votes. The delegates from those states will presumably know best what kind of candidate is likely to carry them. It may be helpful, or even necessary, to have running mates who actually come from those states. If so, it may be wise, especially if it is thought that delegates from other states may ignore this fact in favor of their 'favorite sons,' to 'build in' for candidates from large states the advantage of large home-state delegations. Assuming, as we have, the constitutional validity of delegate allocation measures taken to improve the Party's chances for victory, this one is hardly irrational.
53
It could stand some improvement, of course. As between two states of equal electoral importance, a party could more profitably focus its attention on the one in which it has a chance of victory. This purpose we think it rationally served by the victory bonus system. A state which has gone Republican in the past may do so again. If electoral college apportionment weights the vote of the states according to the value of the prize, the victory bonus system does the same according to the likelihood of winning it.
54
The victory bonus system may help to keep a state in the Republican camp not only by orienting party policies to that state's interests, but also by providng a reward and incentive for the efforts of that state's party organization. Whether or not it is an effective incentive, it may be the only one that a national party has to offer. In any case, having accepted the legitimacy of such party-strengthening measures, we can hardly say that it is irrational.
55
It is most rational, perhaps, with respect to the 'proportionate' victory bonuses, since a likelihood of success is more important in a large state than a small one. Not surprisingly, then, it is the 'uniform' bonuses which have come in for the severest criticism from plaintiffs, not to mention the district judge. But these, too, seem to us to be rationally conceived. Success in a given state may have a certain value to the party quite out of proportion to the state's size. When the returns are counted, on a state-by-state basis, carrying Arkansas will in a sense give the party the same psychological boost as carrying Tennessee (more than twice its size). And carrying a state, Arkansas or Tennessee, may also mean electing two Senators and a Governor on the presidential coattails. Holding these offices undoubtedly has a certain 'uniform' importance to the party, in terms of the immediate power they represent and also because they are the springboards for future Presidential candidates. These considerations seem to us adequately to justify the uniform victory bonus of six votes for success in a Presidential election. If the bonus for success in state level elections requires a separate justification, we think it is present in the need, which plaintiffs so heavily stress, to measure party strength by success in more than one past election.
56
Objection is also made to the allocations to the District of Columbia (14) and to Guam and the Virgin Islands (4 each). The fourteen delegates from the District of Columbia clearly represent disproportionately few voters, but do they disproportionately represent the importance of this particular governmental unit to the party? No one who has lived in the District can deny the special importance of political ambiance in the city in which the Nation's business is done. As for the territories, their four votes each will hardly comprise a decisive bloc at the convention; and the party might well have concluded that a delegation of four is the smallest that it makes any sense to bring the considerable distance to the convention site.
57
There are other justifications for the various elements of this formula, as there are certainly countervailing objections to the ones we have mentioned. The uniform importance of the states might be thought adequately reflected in electoral college vote. Their importance in terms of party strength could perhaps be more accurately reflected by allocating delegates according to the size of the party vote in past elections. And the chances for success in future elections be maximized by paying more attention to 'swing' states than 'safe' ones. Yet it is the essence of the First Amendment rights, which the parties exercise, that they may make their own contrary (and rational) judgments without interference from the courts.
58
It is urged that this formula represents nothing more than an effort by party members from strongly Republican states to perpetuate their control. 62 But it seems to us that the First Amendment protects their power to do precisely that. The Party could have chosen a delegate allocation scheme calculated to broaden its base, by giving special influence to delegates from States where the party is weak. Instead it appears to have chosen to consolidate its gains in states where it has been strong. We are not about to hold that this is an irrational way to seek political success. As for those aspects of the formula which treat the states on a uniform basis and thus give disproportionate influence to the smaller states, how could we say that they do not rationally serve the important cause of cohesiveness among the various state parties, when it took precisely such a scheme to bring about the union of the states themselves? 63
59
We therefore hold that the formula does not violate the Equal Protection Clause. To the extent that voting rights are involved, warranting close judicial scrutiny, these rights are offset by the First Amendment rights exercised by the Party in choosing the formula it did. We must emphasize that this is only true because the formula rationally advances legitimate party interests in political effectiveness. The same might not always hold true. There are no racial or other invidious classifications here. 64 If there were, the Party's entitlement to constitutional protection would be as slight as those of the victims would be strong. Similarly, we have said that voting rights are not as heavily implicated in a nomination as in an election. It might be otherwise in a case 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. 65
60
These caveats have no significance in the present context other than to suggest that, although courts should be slow to interfere with the internal processes of political parties, circumstances can be conceived of wherein they may grant relief. Where such circumstances do not exist, Georgia, Bode, and this case should serve to discourage resort to this court for the resolution of intra-party differences. 66
61
The judgment of the District Court is reversed, and the case is remanded with directions to dismiss the complaint.
62
It is so ordered.
MacKINNON, Circuit Judge (concurring):
63
In my opinion, the Ripon Society has no standing to bring this suit, and I would therefore direct the dismissal of the complaint as to it. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 224 , 94 S.Ct. 2925 , 41 L.Ed.2d 706 (1974); Sierra Club v. Morton, 405 U.S. 727, 739 , 92 S.Ct. 1361, 1368 , 31 L.Ed.2d 636 (1972) ('(A) mere 'interest in a problem,' no matter how longstanding the interest and how qualified the organization is in evaluating the problem, is not sufficient by itself to (confer standing on the organization.)'). Of course, the presence of the individual plaintiffs, who do have standing, means that Ripon's lack of standing is not fatal to this action.
64
With the above exception, I concur in Judge McGowan's opinion.
65
DANAHER, Senior Circuit Judge (concurring in the result):
66
Perhaps the exercise of greater caution would forfend against my expressing any disagreement from what has been said by our respected colleague, Judge McGowan. He has written so well and has said so much with which I am in accord that, possibly, I should suppress comment. Were I convinced that properly we could here reach the merits, I would concur in his ultimate conclusions.
67
It is my judgment that we may not--and therefore that we should not--reach the merits. I am persuaded that jurisdiction is wanting in that: 1, the respective Ripon plaintiffs lacked standing to initiate this action; and 2, the issue submitted on this record is nonjusticiable. I thus join substantially 1 in the respective discussions tendered by my colleagues, Judges Tamm and Wilkey.
Introduction
68
Let me turn immediately to an important aspect of the business before us. Involved is the Republican Party's plan, embodied in its Rule 30, for the allocation to its 1976 Convention of delegates from the various States, the Territories and the District of Columbia. There is a real distinction between the Republican Party's allocation program and the 'state' problems involved in 'apportionment' cases treating of legislative reapportionment plans or dealing with Congressional redistricting issues and similar situations which, from time to time, have engaged the attention of the Court. 2
69
The Ripon plaintiffs, in their allegations of record here, repeatedly have spoken of the 'apportionment of delegates.' In their motion before the Supreme Court they had alleged in their paragraph 3:
70
The stay of the injunctive portion of the District Court's order is wholly inconsistent with the procedure approved by this Court for the granting of relief in reapportionment cases cited and followed by the District Court. See especially Reynolds v. Sims, 377 U.S. 533 , 584--586, 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964). (Ripon plaintiffs' motion, Supreme Court file, dated August 17, 1972). (Emphasis added).
71
Justice Rehnquist did not miss the point, however, for he specifically wrote in Republican Committee v. Ripon Society, supra note 1, 409 U.S. at 1225, 93 S.Ct. at 1477:
72
In the case at bar, of course, we deal with a delegate-allocation dispute that retains importance until 1976 rather than a credentials dispute such as was involved in O'Brien v. Brown ( 409 U.S. 1 , 92 S.Ct. 2718 , 34 L.Ed.2d 1 (1972)). (Emphasis added.) 3
73
* It must be remembered that nothing in the Constitution refers to national party conventions. Congress has passed no statute giving access to the courts in respect of the allocation of delegate strength to a national party convention, and Congress certainly knows how to do just that, were Congress so to decide. Contrast the instant situation with the provisions of the Federal Election Campaign Act, as amended, where the codified 2 U.S.C. § 437h(a) provides:
74
The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act . . .. 4
75
This court recently considered the import of this language in Buckley v. Valeo, 171 U.S.App.D.C. 172, 201 , 519 F.2d 821, 850 (1975) (en banc) where it was pointed out that the section
76
does not entitle the eligible plaintiffs to raise any conceivable constitutional issue with respect to the Act and the relevant criminal sections, no matter how remote or speculative. We perceive no congressional intent to waive article III's requirement that there be a present 'case or controversy.' The declaratory judgment, often seen as the outer limits of article III jurisdiction, nevertheless requires that there be an actual controversy. (Footnotes omitted.)
77
It is not in any way to disparage the purposes of The Ripon Society, Inc. that we say, flatly, the corporation totally lacks standing to sue. Surely it is entitled to no relief on its own account; obviously it has no vote. The Supreme Court has told us in Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972),
78
a mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA. Id., at 739 , 92 S.Ct. at 1368.
79
And see United States v. Richardson, 418 U.S. 166 , 177--180, 94 S.Ct. 2940 , 41 L.Ed.2d 678 (1974).
80
The individual Ripon plaintiffs here stand on no higher plane. They allege no specific injury pertinent to themselves. No statute has authorized the institution of this action by them. There has been no denial of a right in any of the individual plaintiffs to a seat in the Republican Convention. Indeed a national party convention is under no obligation to receive any of these Ripon plaintiffs as a delegate, as Cousins v. Wigoda, 419 U.S. 477, 488 , 95 S.Ct. 541 , 42 L.Ed.2d 595 (1975) makes clear.
81
The alleged ground of aggrievement is a mere abstraction. 5 These individual Ripon plaintiffs have afforded no predicate for action by the courts. They are in no different position on any account than is any member of the public. 6 It would seem inevitable that their action should be barred. They lack standing within the test laid down in Schlesinger v. Reservists to Stop the War, 418 U.S. 208 , 220--221, 94 S.Ct. 2925, 2932 , 41 L.Ed.2d 706 (1974) where the Court said
82
Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. It adds the essential dimension of specificity to the dispute by requiring that the complaining party have suffered a particular injury caused by the action challenged as unlawful. This personal stake is what the Court has consistently held enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the specific set of facts undergirding his grievance. Such authoritative presentations are an integral part of the judicial process, for a court must rely on the parties' treatment of the facts and claims before it to develop its rules of law. Only concrete injury presents the factual context within which a court, aided by parties who argue within the context, is capable of making decisions. (Footnote omitted.)
II
83
Even were we to assume, contrary to what has been said in Part I, supra, that these Ripon plaintiffs have standing, we are nonetheless bound to order that their complaint be dismissed. The issue they have tendered, in my view, is simply nonjusticiable. 7
84
There is much more involved in a party's national convention than its merely nominating candidates for the presidency and vice presidency. That convention, (perhaps most importantly, at least on occasion), will be called upon to set forth the aims and political objectives of the political party and its adherents. 8
85
To succeed in an election, the presidential nominee in a nation as populous and with interests as diverse as ours must carry the states whose electoral votes cumulatively will provide the victory which he seeks and which the party adherents desire. But that is not all. That presidential nominee, in addition to promoting his own candidacy, will be expected by the party and its adherents to contribute to the election of United States Senators and members of the House who will be expected to assist in the accomplishment of the party's program. Long before the national convention, on the hustings, via televised appeals, in local debates, through published statements and otherwise, party candidates for national office as well as for both branches of the Congress and for gubernatorial recognition, will have sought to arouse the electorate and to recruit party adherents. The allocation of delegates will thus serve a twofold purpose.
86
Organization of public thought and the rallying of voters behind the presidential nominee and his program will become essential not only in an appeal to party members but to independent voters and even to members of an opposition party. 9 It is a fundamental truism that any party must seek to maximize voting support from its already registered voters. Appeal to local constituencies often enough can be marshalled through leadership already there recognized because of qualities long since made evident.
87
Recognition of such individuals in delegate allocation may not only add strength to the management of the convention, but additionally will tend to enhance the possibilities of garnering the electoral vote state by state, and cumulatively thus result in election of the presidential nominee. The candidate and the party adherents who can bring about that result will achieve the very purpose for which associational significance is recognized and protected. Not to be forgotten is the fact that the electoral vote of a particular state may turn upon a mere plurality, no matter how small, of that state's voters. Allocation of delegates to such states--and the selection and seating 10 of such delegates as can advance 'the cause'--will seldom be out of mind among party leaders of either major party. The ultimate popular will, of course, ascertained at the election itself, reflects the collective mind of the American voter, and success or repudiation of the candidate, or the party will follow. 11
88
Taking account of what a party may seek to do and what its adherents think it should do to accomplish the party's objectives, may we not wonder what steps are open to a court to manage the party's convention composition in delegate allocation or otherwise? Success is what the party seeks, of course. In light of what we have been saying, and having over a period of some three decades gained no more than a minority status, the Republican Party in 1972 had adopted rules and a program designed, it was thought, to improve its status and to achieve that success. 12 It is clear from the record before us, note 12 supra, that views largely shared by the Ripon plaintiffs were presented at length during the 1972 convention and finally were rejected by a vote of nine hundred ten to four hundred thirty-four. Losers at the convention, claiming a deinal of equal protection, the Ripon plaintiffs moved to the courts, and here we are. 13
89
Justiciability of state ordered and state regulated proceedings in this area afford us no guidance in the present context. Were Congress to have acted and to have regulated the composition of the national convention of a major political party, we would have before us a totally different problem. 14 It may be supposed that few jurists have been more perceptive than the late Mr. Justice Jackson who realized that the 'one man-one vote' approach involved scrapping the present electoral system and providing for direct election of the President. Dissenting in Ray v. Blair, 343 U.S. 214, 234 , 72 S.Ct. 654, 664 , 96 L.Ed. 894 (1952), he wrote:
90
The demise of the whole electoral system would not impress me as a disaster. At its best it is a mystifying and distorting factor in presidential elections which may resolve a popular defeat into an electoral victory. At its worst it is open to local corruption and manipulation, once so flagrant as to threaten the stability of the country. To abolish it and substitute direct election of the President, so that every vote wherever cast would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental processes.
91
After the order had been entered that this case be set for hearing en banc, we invited the Democratic National Committee as Amicus to submit a brief and to argue. We directed attention to certain specific points including those of standing and justiciability. Recognizing that there are issues involved in this litigation which bear upon the 'traditional' role of political parties and the 'traditional' nature of the political process, Amicus told us on brief 'the Democratic Party has a vital interest in the actions taken by this court and welcomes the opportunity to present its views.' 15
92
Amicus continues that the decision of the district court, in accepting jurisdiction and in holding the claim asserted by Appellants to be justiciable, represents a departure from the historical reluctance of courts to intrude in the political process, in the absence of racial discrimination or clear state action. It is the view of the Democratic National Committee that such a departure is both unwarranted and unwise. Because of the well-established First Amendment rights of political parties and their adherents, and the clear lack of judicially manageable standards involved in any question of delegate allocation, this court should adopt the view expressed in Irish v. Democratic-Farmer-Labor Party, 287 F.Supp. 797 (sic) (D.Minn.1968), aff'd, 399 F.2d 119 (8th Cir. 1968). The court in Irish refused to intervene in a delegate allocation matter, and expressed the view that the political process is best served by the compromise and consensus institutionalized in the political parties Amicus Brief at 2.
93
Asserting the position of the Democratic National Committee, Amicus cogently has argued that questions involving the allocation of delegates at a national convention will reflect policies which are subject to change and development, in part, at least, because of changes in a party's constituency. Associational prerogatives include retention of flexibility in a party's shaping its own organization.
94
One may conclude that one party may seek its strength in a certain area where dependence upon a liberal and urbanized appeal can be expected, especially in light of past performance, to yield the greater effectiveness. The party very properly may oppose judicial intervention in the political process where in addition to the business of nominating candidates, 'vital' rights of association guaranteed by the Constitution are also involved, Cousins v. Wigoda, supra, 419 U.S. at 487 , 95 S.Ct. 541 . 16 It would seem to follow that a party, be it Democratic or Republican, is clearly in position to limit access to the decision-making processes of the party in order best to promote the interests of the party's adherents. Just who they may be cannot accurately be determined even by the party itself, and it would seem, all the more clearly, that the problem is nonjusticiable because of the inability of the courts to define the party's constituency.
95
I have said enough to predicate my conclusion that the issue here is nonjusticiable. 17 On that ground, I would reverse the judgment of the District Court and order that the Ripon plaintiffs' complaint be dismissed. Even correctly to decide on the merits that the present Republican delegate-allocation formula is impervious to successful challenge will conclude only this case. I think, absent racial or other invidious discrimination of constitutional dimension, that we should dispose of the instant type of challenge, once and for all.
96
TAMM, Circuit Judge, with whom Circuit Judge ROBB joins (concurring in the result):
97
I agree with the disposition the court reaches, but believe that we must directly confront preliminary issues which the majority passes over to reach the merits. Specifically, we should reassess the vitality of our previous holding of governmental action in this area and recognize the full impact of the justiciability problems.
98
* Eight individual registered Republicans and the Ripon Society, Inc. (collectively referred to as Ripon) challenge the delegate apportionment plan, Rule 30, adopted by the 1972 Republican National Convention for the 1976 Convention, as violative of the equal protection guarantee of the fifth and fourteenth amendments. In order to apply these constitutional restraints against the Republican National Party and Committee (Republicans), Ripon must establish the presence of state or governmental action. To do so, Ripon principally relies upon two cases in this circuit which found the activities of the major political parties to constitute governmental action, Georgia v. National Democratic Party, 145 U.S.App.D.C. 102 , 447 F.2d 1271 , cert. denied, 404 U.S. 858 , 92 S.Ct. 109 , 30 L.Ed.2d 101 (1971), and Bode v. National Democratic Party, 146 U.S.App.D.C. 373 , 452 F.2d 1302 (1971), cert. denied, 404 U.S. 1019 , 92 S.Ct. 684 , 30 L.Ed.2d 668 (1972). I was a member of the unanimous division in Georgia, where we stated that 'in the absence of further explication by the Supreme Court on this point, we incline to the conclusion that the National Conventions are not so divorced from the activities of the states in conducting presidential elections as to negate the existence of state action.' 447 F.2d at 1276 . I believe that further Supreme Court pronouncements in the area strongly indicate that this position is no longer tenable.
99
In Georgia, we reached our 'inclination' on two grounds. The first, involving a three-step analysis, began with the postulate, drawn from the Texas White Primary Cases, 1 that the activities of state political parties constitute state action 'insofar as those activities touch upon the machinery whereby candidates are nominated by the parties to seek election to local or national office.' 447 F.2d at 1275 . Our second premise was that 'a state party's action in selecting delegates to its national convention is also invested with state action since the delegates' primary function is the nomination of candidates for the nation's highest offices.' Id. This premise was grounded on the assumption that delegate-selection processes were imbued with the same quality of state action as candidate-nomination processes; while recognizing that courts had divided on the question, we found the analogy 'a close and compelling one.' Finally, we reasoned that if 'the action of the individual state parties in selecting delegates to participate in the presidential-nominating process constitutes state action, the collective activity of all the states' delegates at the national convention can be no less readily classified as state action.' Id.
100
Our second ground was derived from the states' responsibility to conduct elections, pursuant to article I, section 1, and the twelfth amendment. Since the 'electorate's choice in the general election is effectively restricted to the nominees of the two (major) parties,' the states, by placing the major parties' nominees' names on the ballot, have adopted this narrowing process as integrally related to their election procedures. Therefore, we opined, 'every step in the nominating process--especially the crucial determination of how many delegate votes each state party is to be allotted--is as much a product of state action as if the states themselves were collectively to conduct such preliminary conventions.' 2
101
In Bode, the division followed the Georgia state action holding. 425 F.2d at 1304--05. Notably, in neither case did we accord plaintiffs relief. However, the following year, this court intervened in an internal Democratic Party dispute over challenges to the California and Illinois delegations to the 1972 convention. Brown v. O'Brien, 152 U.S.App.D.C. 157 , 469 F.2d 563 (1972). The division had 'no difficulty concluding that defendants' action against these delegates was state action,' id. at 567, and found that the national parties' decisions to exclude certain delegates violated due process. Thereafter, the Supreme Court stayed our judgment. O'Brien v. Brown, 409 U.S. 1 , 92 S.Ct. 2718 , 34 L.Ed.2d 1 (1972). In strong language, the Court noted its 'grave doubts' as to the correctness of our action:
102
We must also consider the absence of authority supporting the action of the Court of Appeals in intervening in the internal determinations of a national political party, on the eve of its convention, regarding the seating of delegates. No case is cited to us in which any federal court has undertaken to interject itself into the deliberative processes of a national political convention; no holding of this Court up to now gives support for judicial intervention in the circumstances presented here, involving as they do relationships of great delicacy that are essentially political in nature. Judicial intervention in this area traditionally has been approached with great caution and restraint. It 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. Thus, these cases involve claims of the power of the federal judiciary to review actions heretofore thought to lie in the control of political parties. Highly important questions are presented concerning justiciability, whether the action of the Credentials Committee is state action, and, if so, the reach of the Due Process Clause in this unique context. Vital rights of association guaranteed by the Constitution are also involved. While the Court is unwilling to undertake final resolution of the important constitutional questions presented without full briefing and argument and adequate opportunity for deliberation, we entertain grave doubts as to the action taken by the Court of Appeals.
103
Id. at 4--5, 92 S.Ct. at 2720 (footnote and citations omitted). One month later, Justice Rehnquist stayed an earlier district court holding granting relief in the case sub judice, based in part on 'the probability of error in the result below,' citing the above quoted passage from O'Brien. Republican State Central Committee v. Ripon Society, Inc., 409 U.s. 1222, 1225--27, 93 S.Ct. 1475, 1477 (1972) (Rehnquist, Circuit Justice).
104
Thus, the Supreme Court has strongly suggested that if confronted with the issue, it would reverse our holding on state action. Ripon disputes this characterization and contends that the Court's criticism in O'Brien was aimed at the timing of our intervention and its focus on an internal party dispute, not the holding of state action. See Appellants' Memorandum pursuant to Order of March 19, 1975 at 14--15; Note, Presidential Nominating Conventions: Party Rules, State Law and the Constitution, 62 Geo.L.J. 1621, 1636--37 (1974). Compare Cousins v. Wigoda, 419 U.S. 477, 491 , 95 S.Ct. 541 , 42 L.Ed.2d 595 (1975) with id. at 494 , 95 S.Ct. 541 (Rehnquist, J., concurring). However, we need not dispositively settle on one of these differing interpretations, for even assuming that O'Brien does not preclude reaffirmance of our Georgia holding, other Supreme Court precedent and analysis have so eroded the analytical underpinnings of both alternative holdings that I believe we are no longer justified in adhering to them.
105
* The first basis for our Georgia holding was that state political parties' activities concerning nomination of candidates constituted state action; we invoked the White Primary Cases to support this proposition. However, in O'Brien, the Court characterized those cases as involving claims of 'invidious discrimination based on race in a primary contest within a single State.' 409 U.S. at 4 n. 1, 92 S.Ct. at 2720 (citations omitted). That is a dramatically different proposition than we drew from those cases. Moreover, we have been criticized, perhaps justifiably, for citing the White Primary Cases indiscriminately, without distinguishing between those which turned on fifteenth amendment rights and those which were based on equal protection. See Kester, Constitutional Restrictions on Political Parties, 60 Va.L.Rev. 735, 766 (1974). Upon further reflection, I think that the generalizations we culled from those cases rest on less than firm ground.
106
First, those cases all involved racial discrimination, a prime target of the fourteenth and fifteenth amendments, with the practical consequence that a lesser degree of involvement may trigger constitutional scrutiny. See, e.g., Greenya v. George Washington University, 167 U.S.App.D.C. 379 , 512 F.2d 556, 560 (1975); Jackson v. The Statler Foundation, 496 F.2d 623 , 628--29 (2d Cir. 1974), cert. denied, 420 U.S. 927 , 95 S.Ct. 1124 , 43 L.Ed.2d 397 (1975). No allegation of racial discrimination is at issue here. Second, the White Primary Cases all took place during a one-party era in Texas when nomination in reality was tantamount to election--the primary was the election. This is certainly not the situation at the national level.
107
Finally, the two Nixon cases involved state statutes which directly controlled the activity in question, 3 and Allwright and Terry were fifteenth amendment cases, involving the right to vote; because of the integral relation between the primary and election in the one-party state, the Court found a constitutional violation. 4 The appropriateness of invoking these cases in the case at bar becomes questionable as the importance of state authorizing statutes in the presidential nominating process appears tangential, 5 and as Rule 30 involves apportionment of delegates, not actual voting processes. Thus, the White Primary Cases are not strong authority for the general proposition we advanced in Georgia.
108
I also cannot extract a general rule from the other, arguably relevant, Supreme Court cases not directly relied upon in Georgia--United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941), and Gray v. Sanders, 372 U.S. 368 , 83 S.Ct. 801 , 9 L.Ed.2d 821 (1963). Classic reversed the dismissal of an indictment against a state election official for falsely counting primary ballots on the basis that primaries were such an 'integral part' of the election process that the constitutional right to vote extended to them. However, the Classic holding was firmly grounded in the article I protection of the right to vote in congressional elections, which also extends to private interferences, and thus cannot stand for the proposition that all nominating procedures closely related to general elections constitute state action. 313 U.S. at 314 --15, 61 S.Ct. 1031 , see Developments in the Law--Elections, 88 Harv.L.Rev. 1111, 1158--59 (1975). In Gray, the device attacked on equal protection grounds, the unit-voting system, was directly imposed on the Democratic Party by statute if it chose to hold a primary. The finding that this proximate regulation of the challenged device constituted state action is unsurprising, but is also doctrinally different than the question presented by Rule 30. 372 U.S. at 374 --75, 83 S.Ct. 801 ; see Kester, supra, 60 Va.L.Rev. at 763; Developments, supra, 88 Harv.L.Rev. at 1158 n.41.
109
Moreover, as the Supreme Court has recently made clear, the mere fact that the state regulates some aspects of an organization does not make its activities state action. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 , 95 S.Ct. 449 , 42 L.Ed.2d 447 (1974); Moose Lodge No. 107 v. Irvis, 407 U.s. 163, 92 S.Ct. 1965 , 32 L.Ed.2d 627 (1972). There must be a sufficient nexus between the challenged action and the state regulation. Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 351 , 95 S.Ct. 449 . Clearly no such nexus exists between any state statute and the allocation of delegates to the Republican Convention. This conclusion is underscored by Cousins v. Wigoda, supra, where the Court found that the 'states themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to National Political Party Conventions were left to state law '. . . each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result." 6
110
In sum, I must conclude that the first step that led to our conclusion that the decisions of national conventions were state action was an unjustified simplification inconsistent with present authority. 7 Without this syllogistic prerequisite, our first state action holding must fall.
B
111
Our alternative state action holding was based on the electoral process itself. The linchpin in that argument is that the states, by adopting as a necessary adjunct of their election procedures the narrowing process performed by the parties through placing the party nominees' names on the ballot, have made the parties' activities their own. Since the Georgia decision, the Supreme Court has held that the states have a compelling interest in enforcing this narrowing process. See American Party of Texas v. White, 415 U.S. 767 , 780--81, 94 S.Ct. 1296 , 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 736 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974). All of those cases, however, dealt with actions taken by the states themselves and were unaccompanied by any state action question. 8 In fact, the only relevant recent Supreme Court decisions point in a direction opposite to our Georgia conclusion.
112
In Jackson v. Metropolitan Edison Co., supra, petitioner challenged a utility's termination of a customer's service on due process grounds, alleging, inter alia, that state action was present because the termination had been performed pursuant to a tariff accepted by the state. The Court, rejecting this suggestion, found that '(a)pproval by (the state) . . . where (it had) not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the (state) into 'state action." 419 U.S. at 357, 95 S.Ct. at 457. The Court held that where the initiative comes from the private party no state action is present.
113
Similarly, every action taken by any individual which aids the state in its narrowing function cannot be deemed state action; the connection between the public and private entities must be more specific and direct. That connection is not present here. The nominating function is not one traditionally performed by the states, nor are they particularly interested in the mechanics of the narrowing process, so long as by the general election, the size and complexity of the ballot is within reason. Thus, it is impossible to conclude that the national conventions are performing a delegated governmental function. In fact, by adopting a platform and promulgating rules to govern their party and by choosing a standard bearer who best represents the party's ideologies and preferences, delegates are engaged in activities with which the first amendment bars most governmental interference. When this analysis is coupled with the Cousins holding that the state cannot enforce its supposed interests against the national party, I must conclude that the necessary integral relationship between Rule 30 and the states is lacking. 9
114
The fact that neither of the Georgia holdings are now tenable does not end the state action analysis, since there is another possible source of governmental involvement in this area--the federal government. Recent years have seen the increasing regulatory and financial involvement by the federal government in the electoral process, culminating in the Federal Election Campaign Act Amendments of 1974, P.L. 93--443, 88 Stat. 1263 .
115
Under the present version of federal regulations, 10 the major parties' conventions, starting in 1976, will probably be totally funded by federal funds. See id. at 1294, as codified, Int.Rev.Code of 1954 § 9008. While the argument could be made that this grant of federal money makes the actions of the convention subject to constitutional scrutiny, the circuit courts have held time and again that, absent a finding of racial discrimination, the mere receipt of government funds is not enough to dictate that finding. See, e.g., Greenya v. George Washington University, supra; Junior Chamber of Commerce v. Missouri State Junior Chamber of Commerce, 508 F.2d 1031 , 1033--34 (8th Cir. 1975); Wahba v. New York University, 492 F.2d 96 (2d Cir. 1974). There must be a sufficient nexus before the government can be considered a joint participant in the challenged activity. See Moose Lodge No. 107 v. Irvis, supra; Burton v. Wilmington Parking Authority, 365 U.S. 715 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961). The funding of the conventions does not supply that joint participation in the case sub judice, since the funding is authorized regardless of the procedures the convention adopts.
116
Similarly, the federal regulatory presence is not sufficient to trigger a governmental action finding. The regulation, presently constituted, has no connection with the activities in question 11 and does not meet the level the Court in Jackson indicated is necessary for a finding of governmental action. Further, the regulation is not sufficiently detailed, nor are the benefits the federal government derives from the conventions' activities significant enough, so that we could find the existence of a symbiotic relationship or constitutionally recognizable 'entanglement' between the entities. Compare Howard University v. National Collegiate Athletic Ass'n, 166 U.S.App.D.C. 260 , 510 F.2d 213 (1975).
117
In summary, I must conclude that Ripon cannot demonstrate the presence of governmental action in the adoption of Rule 30. Therefore, I must concede that our holding in Georgia was in error. The problem of 'state action' has always been doctrinally a difficult and unsatisfying one; a commentator has called state action 'a conceptual disaster area.' 12 Recent Supreme Court decisions have, however, clarified the standards we must apply in this area, and those standards dictate the conclusion that I believe we must reach here.
118
By this conclusion I do not foreclose all possibility that an action taken by a major political party or its national convention will be judged to be subject to constitutional restraints; I endorse the evolving doctrine that in racial discrimination situations, a lesser quantum of governmental involvement will trigger constitutional scrutiny. In this situation, however, I would vote to reverse the judgment of the district court for lack of jurisdiction. Since the majority of this court avoids confronting this difficult question by assuming jurisdiction, I am compelled to turn now to another issue which requires scrutiny before consideration of the merits, and which the majority also glosses over--justiciability.
II
119
'Justiciability it itself a concept of uncertain meaning and scope.' Flast v. Cohen, 392 U.S. 83, 95 , 88 S.Ct. 1942, 1950 , 20 L.Ed.2d 947 (1968). It is 'not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . ..' Poe v. Ullman, 367 U.S. 497, 508 , 81 S.Ct. 1752, 1759 , 6 L.Ed.2d 989 (1961). While its applicability to the so-called 'political question doctrine' has been eroded, see, e.g., Powell v. McCormick, 395 U.S. 486 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962), there is no reason to assume its demise. See Gilligan v. Morgan, 413 U.S. 1, 11 , 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973).
120
Confronting the question of justiciability in Georgia of a claim similar to the one sub judice, we found judicial review appropriate because:
121
courts are competent to scrutinize the allocation schemes promulgated by the national parties in order to determine whether, given the context of political partisanship out of which such formulas necessarily arise, substantial deviations from equality of voting power at the Conventions are supported by legitimate justifications.
122
447 F.2d at 1278 (footnote omitted). The passage of the Supreme Court's opinion in O'Brien, set out on page 4 supra, cited with approval by Mr. Justice Rehnquist in his Ripon opinion, casts doubt upon our justiciability holding. Upon reconsideration, I conclude that we have failed to face the import of the justiciability problems in this area.
123
In Baker v. Carr, supra, 369 U.S. at 217 , 82 S.Ct. 691 , the Court listed factors which would make a claim a non-justiciable political question; two of those factors expose directly the inherent difficulty in a court's reviewing a delegate allocation formula for national political conventions--the lack of judicially discoverable and manageable standards and the impossibility of reaching a decision without an initial policy determination of a kind clearly for non-judicial discretion.
124
A. Lack of Judicially Discoverable and Manageable Standards
125
In Georgia, we opined that we could determine 'substantial deviations from equality of voting power' (emphasis added); since we rejected plaintiff's claim in that case, we were never forced to define the test precisely. In fact, I am afraid that our Georgia test is more promise than reality and could never be applied accurately to a challenge to any delegate allocation formula.
126
First, it is impossible to define the constituency whose equality of voting power we are attempting to protect. None of the obvious possibilities is satisfying. The most obvious is the class of registered members of the particular party; however, at the national level, both parties to succeed must reach beyond these mostly dependable adherents to gain the temporary allegiance of the so-called independent vote. In fact, to force the Republican Party to define its constituency as its registered members would consign the party to minority status.
127
Using voting results is equally unsatisfying. As we recognized in Bode: 'Elusive too is the utilization of past voting patterns--transitory political phenomena--to ascertain the current population to be represented at a national convention.' 452 F.2d at 1307 (footnote omitted). The final possibility is to define the relevant constituency as all voters, but to impose that criterion on a party would be to deny it any ideological choice, a choice which lies at the heart of the party's first amendment associational freedoms. Thus, although the Bode division did not recognize the full implication of its analysis, its comments are apt: 'the individual to be represented (is not) identifiable except in a loose, conceptual sense. . . . To identify and count potential Democrats is impossible, requiring desirable but unavailable clairvoyance.' 452 F.2d at 1306 --07.
128
The second undefinable standard is the determination of the basis against which a party's delegate allocation plan is to be tested, even assuming the relative constituency could be ascertained. 'One man, one vote' principles, as our brethren concede, do not apply. The Court has held that those stringent standards bear only on bodies which exercise general governmental powers. See, e.g., Salyer v. Tulare Lake Basin Water Storage District, 410 U.S. 1719 , 93 S.Ct. 1224 , 35 L.Ed.2d 659 (1973); Hadley v. Junior College District, 397 U.S. 50 , 90 S.Ct. 791 , 25 L.Ed.2d 45 (1970).
129
Without belaboring the point, nominating conventions do not meet this criterion. Neither the writing of platforms nor the nomination of candidates is a governmental function. A convention is not a representative body. 13 Delegates need not be elected. Once at the convention, subject to certain state statutes, instead of representing any constituency, they are 'free agents,' able to coalesce around any candidate or issue of their choosing. Finally, any representative role they may have can be completely undercut if the convention exercises its right not to seat them. Cousins v. Wigoda, supra; cf. Zimmer v. McKeithen, 485 F.2d 1297 , 1304 n.15 (5th Cir. 1973) (en See also Education/Instruction, Inc. v. Moore, 503 F.2d 1187 (2d Cir. 1974), cert. denied, 419 U.S. 1109 , 95 S.Ct. 783 , 42 L.Ed.2d 806 (1975); Davis v. American Telephone and Telegraph Co., 478 F.2d 1375 (2d Cir. 1973).
130
Hence, what this boils down to is: If the proper constituency could be determined, which it cannot satisfactorily, and if the basis for equality could be settled upon, which would not include one-man, one-vote principles, then perhaps the court could scrutinize 'deviations' to ensure they are based upon 'legitimate justification.' However, even this inquiry is infeasible, since it involves the court in political policy determinations.
131
B. Policy Determinations Requiring Non-Judicial Discredit
132
Political parties are formed for two major purposes--(1) to associate with people of like ideological persuasion and (2) to attempt to implement their ideological goals by electing candidates who share that objective. Both functions are protected under the first amendment. Their effectuation depends on a series of political choices made by its members.
133
In fact, it could fairly be said that a party's twin objectives of ideological purity and electoral success are often incompatible and that a party must strike a compromise between both goals or opt for one at the expense of the other. For example, the results of the 1972 Democratic and 1964 Republican Presidential campaigns may be partially explained by the parties' decision to seek ideological purity at the expense of electoral attractiveness.
134
Judge McGowan's opinion advances some of the justification and political choices which underlie the bonus systems attacked by the plaintiffs in this case. The crucial point is that all these potential decisions--whether to reward the ideological faithful, farmer or urban dweller or whether to encourage electoral success by rewarding those local parties which actually carry the ticket--are essentially political accommodations. As such, they are a fundamental exercise of first amendment rights; second-guessing of their accuracy by the judiciary is both impossible and an unwarranted deviation from our constitutional scheme.
135
Moreover, there already exists a correcting mechanism in the system--the ballot box. So long as political parties exist to elect candidates and effectuate programs, they will never be overly exclusionary too long. The judiciary need not and should not paternalistically interfere with this process. 14
136
This posture of non-interference has been followed by courts hearing claims involving party affairs. The Eighth Circuit, declining to reapportion the Minnesota delegates to the Democratic National Convention, found the case to be a non-justiciable political question. Irish v. Democratic-Farmer-Labor Party, 399 F.2d 119, 121 (8th Cir. 1968). Similarly, the district court in Smith v. State Executive Committee, 288 F.Supp. 371, 376 (N.D.Ga.1968) denied relief, inter alia, on the basis that 'there is no known case to the effect that any jurisdiction exists over the internal rules or management of a political party.' Finally, the Third Circuit, in recently reversing a district court decree enjoining a state party's delegate allocation to its party convention, stated:
137
If a given party chooses to organize by districts, but to allocate delegate strength to a district in which it has fewer numbers but a greater opportunity to achieve the practical advancement of the political ideas for the pursuit of which the association was formed, state action which frustrates that choice is highly suspect.
138
Redfearn v. Delaware Republican State Comm., 502 F.2d 1123 , 1127--28 (3d Cir. 1974). See also Lynch v. Torquato, 343 F.2d 370 (3d Cir. 1965).
139
I would concur in those assessments and conclude that the question plaintiffs present is non-justiciable. 15
III
140
I have no quarrel with the majority opinion on the merits. Were I to reach them, I would find Judge McGowan's opinion both attractive and persuasive. However, despite the best attempts to deter further litigation, I fear that by 'reserving' the questions of state action and justiciability, the majority make such litigation inevitable. For my part, since I find the requisite state action necessary for plaintiff's jurisdiction lacking, I would rest our decision on that, more conclusively final, ground. I, therefore, concur in the result of reversing the district court with directions to dismiss the complaint.
141
WILKEY, Circuit Judge, with whom joined Senior Circuit Judge DANAHER (concurring in the result only.)
142
Although we are in agreement that the judgment of the District Court must be reversed insofar as it grants appellants relief, we would reach that result on the threshold issues of 'state action' and 'justiciability' and not on the merits of appellants' claims. We recognize that this court in 1971 held in Georgia v. National Democratic Party 1 that the allocation of delegates by a national political convention was 'state action' within the meaning of the Fourteenth Amendment and represented a justiciable controversy, and that those holdings were reaffirmed shortly thereafter in Bode v. National Democratic Party. 2
143
In the interim since, however, the Supreme Court in O'Brien v. Brown 3 expressed 'grave doubts' about our disposition of an analogous case dealing with seating of delegates at the 1972 Democratic National Convention. A stay, issued by Mr. Justice Rehnquist in his capacity as Circuit Justice, dealing with the allocation plan presently before us, also called into question our opinions in Georgia and Bode. 4 As a result, a reassessment of our prior opinions is definitely in order.
144
Aside from concern as to the substantive correctness of our previous views, we find the majority's refusal to consider and resolve in this en banc proceeding the state action and justiciability issues posed by this case to be unwise judicial policy. By failing to resolve these issues in a case brought sufficiently in advance of the 1976 national conventions to permit adequate deliberation, we doubtless will face the unenviable task of resolving these questions on the eve of a national convention under time constraints and other pressures that would make reasoned deliberation difficult, if not impossible.
I. State Action
145
The initial threshold question posed by this challenge is whether there was sufficient governmental involvement in the allocation of delegates to the 1976 Republican National Convention to trigger application of the equal protection guarantees of the Fifth and Fourteenth Amendments.
146
In our opinion in Georgia v. National Democratic Party we relied on two rationales for our conclusion that the allocation of delegates by a national political party constituted 'state action.' The first rationale involved a three-part syllogism. 5 First, we noted that 'state action' inheres in the participation of state parties in candidate nomination by statewide primary election. In support of this proposition reliance was placed upon the Texas White Primary line of cases 6 and the more recent Supreme Court opinion in Gray v. Sanders. 7 Given the premise, we said secondly that the state party's action in selecting delegates to its national convention is also invested with 'state action,' since the delegates' primary function is to nominate candidates for the two national offices. Finally, if the activity of individual state parties in selecting delegates to participate in the nomination process is 'state action,' the collective decisions made by all these delegates once assembled must constitute 'state action.'
147
Our second basis in Georgia for finding 'state action' was derived from the fact that most, if not all, states utilize the national political conventions in order to limit the electorate's choice in the general election, 8 i.e., the narrowing process. The party nominating process was thus thought to be state action either (1) because the parties by engaging in the narrowing process are undertaking a governmental task akin to conducting a primary election, or (2) because the states ratify the result of the convention through the automatic placement of its nominees on the general election ballot.
148
The opinion in Bode merely reasserted the conclusions reached in Georgia that any 'decision made by the Democratic Party at the national level . . . is tantamount to a decision of the States acting in concert . . ..' 9
149
In view of the Supreme Court's recent pronouncements, we are now of the view that the rationales articulated in Georgia and followed in Bode were incorrect, and that the actions of the national political conventions per se are not sufficiently infused with state involvement to trigger constitutional protections except in the context of racial or other invidious discrimination. 10
150
Our primary difficulty with the first ground of the Georgia opinion focuses upon the jump between premise two and the conclusion. Even if it be conceded arguendo that 'the state's delegate-selection processes are imbued with the same quality of state action found in candidate-nomination processes . . .,' 11 it does not follow that the actions of delegates selected at such elections are 'state action' merely because they were chosen at a primary which is subject to constitutional constraints.
151
Party participation in the electoral process is subject to constitutional safeguards because that process is permeated by state regulation. In Gray v. Sanders, for example, the Court held the Georgia Democratic primary election to be subject to an equal protection attack because Georgia 'collaborates in the conduct of the primary, and puts its power behind the rules of the party.' 12
152
The actions of a national political convention or committee are distinguishable because they are not similarly permeated by governmental involvement or regulation. There is no law, state or federal, requiring a national party political convention. Neither the Federal Government nor any of the States seek to dictate the manner in which a national political convention adopts its platform or its nominees. 13 Similarly, there is no governmental involvement at all with the delegate allocation process. The formula here under review was purely the product of party deliberations and actions and was neither compelled, restricted, modified, devised, or encouraged by any state statute or ordinance. The national party decision being challenged in this case is thus not 'in reality, the decisions of the states acting in concert.' 14 It is rather private action by party delegates and officials. They may have been selected by a process that was sufficiently regulated by a state government to call into play constitutional restrictions at the selection stage. However, this connection alone is simply too tenuous to trigger the Equal Protection Clause.
153
Turning to the second ground advanced in the Georgia opinion, we question both the premise and conclusion. There can be no doubt that as a historical matter the nominees of the Republican and Democratic parties have had a monopoly on national office since 1852. Whether their monopoly will continue into the future has been questioned by some 15 and is not particularly material for present purposes, because if that monopoly continues it will not be the result of governmental action. The recent Ballot Access Cases of the Supreme Court have recognized compelling state interests in limiting party and candidate access to the ballot. 16 However, they have also recognized that the states are not permitted to freeze in the two major parties nor set down requirements that so burden access by independent candidates and new parties that they would not be permitted ballot access despite significant public support. 17 We are thus led to conclude that if the Republicans and Democrats continue to dominate Presidential politics it will be because the vast majority of the voters will continue to feel that the nominees of those parties deserve their support and their votes, and not because state election laws maintain them in power.
154
Each major (or minor) party is free to adopt whatever scheme it desires--convention, national primary, or lottery--in the selection of its candidates for national office. That the states utilize the national party convention choices as the party nominees to go on the ballot, instead of requiring a petition or other device, does not retroactively transmute the national convention nominating process into state action. In Jackson v. Metropolitan Edison Co., 18 where the state had accepted a tariff filing by the utility containing a proviso for termination of service without a hearing, the court concluded that approval by the state of the regulated utility's privately selected termination procedure did not 'transmute a practice initiated by the utility and approved by the Commission into 'state action." 19
155
Neither state nor federal government has ordered any political party to hold a national convention, nor prescribed the method of selection or allocation of delegates to be employed in 1976. The Republican National Committee's chosen method of allocation is a purely private choice. '(E)xercise of the choice allowed by state law where the initiative comes from it and not the State, does not make its action in doing so 'state action' for the purposes of the Fourteenth Amendment,' 20 so held the Jackson Court.
156
Whatever the states' interest in narrowing the field of Presidential candidates, it by no means logically follows that the narrowing process thus becomes a state function. The function is performed by private parties on their own initiative, and for their own purposes. The constitutional right of association protects the parties and persons involved in so doing. While not deciding specifically the issue of delegate allocation, the Supreme Court in Cousins v. Wigoda 21 made it abundantly clear that the individual states are powerless to impose their will on a national party nominating convention in any manner that would interfere with the almost unfettered discretion of the parties in naming candidates.
157
Feeble indeed is the 'state function' which no state has the power to control. Thus would seem to perish the claim that the Republican National Convention's allocation of delegates is in any way a 'state function.'
158
We would reject--had it been offered--any claim that the recent amendment to the Internal Revenue Code 22 as to federal financing of national political conventions has imported an element of governmental involvement. Rather, considering the financing scheme alone, we deem our recent opinion in Greenya v. George Washington University 23 to be controlling. After reviewing the cases discussing this issue and the relevant arguments, the court concluded that '(w)ith the possible exception of racial discrimination by recipients of government funding, . . . mere financial support for particular projects also represents insufficient government involvement (to entail application of First or Fifth Amendment guarantees).' 24
159
Considering the financing scheme cumulatively along with the other elements of government involvement previously discussed does not require a different result. Those other possible aspects of government involvement all emanate from the states and therefore cannot simply be added to federal financing to change the private character of the conventions. The Congress has sought to exercise no control over the conventions' governance or deliberations, hence there is no nexus between the complaint of plaintiffs, malapportionment of delegates, and the financing arrangement. The Congress would be quite surprised to learn that federal financial support had the effect of changing the conventions into governmental entities.
160
In addition, there are countervailing associational rights that must be considered in drawing the 'state action' threshold. 'The right of members of a political party to gather in a national political convention in order to formulate proposed programs and nominate candidates for political office is at the very heart of the freedom of assembly and association which has been established in earlier cases decided by the Court.' 25 As a result, courts should be reluctant to subject the conventions to constitutional restraints. Such a reluctance reinforces our conclusion that there is no 'state action' involved when the political parties apportion their convention delegates.
II. Justiciability
161
The second threshold issue posed by this case is whether a challenge to the formula by which a national political convention allocates its delegates among the various states presents a nonjusticiable 'political question.' As with a finding of insufficient 'state action,' a finding of nonjusticiability here obviates the necessity--indeed, the propriety--of deciding the merits of plaintiff's claims.
162
In an earlier phase of this case Ripon Society obtained in the District Court an injunction against the use by the Republican Party of the 'bonus' formula for allocation of delegates to the party's 1972 convention. 26 That injunction was stayed by Mr. Justice Rehnquist on the ground of, inter alia, 'the probability of error in the result below.' 27 He based his reasoning on the following passage from O'Brien v. Brown: 28
163
No case is cited to us in which any federal court has undertaken to interject itself into the deliberative process of a national political convention; no holding of this Court up to now gives support for judicial intervention in the circumstances presented here, involving as they do, relationships of great delicacy that are essentially political in nature. (Citation omitted) Judicial intervention in this area traditionally has been approached with great caution and restraint. (Citations omitted) It 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. Thus, these cases involve claims of the power of the federal judiciary to review actions heretofore thought to lie in the control of political parties. Highly important questions are presented concerning justiciability, whether the action of the Credentials Committee is state action, and if so the reach of the Due Process Clause in this context. Vital rights of association guaranteed by the Constitution are also involved. . . . (W)e entertain grave doubts as to the action taken by the Court of Appeals. 29 (Emphasis added.)
164
O'Brien did not involve the question of the overall apportionment of delegates to a party convention; rather, the issue was which of two rival slates of delegates from one state should be seated. Nevertheless, in Republican State Central Committee of Arizona v. Ripon Society, Inc., 30 Justice Rehnquist was undoubtedly correct in his perception that there is little practical or legal difference between judicial interference with a party's seating of delegates at the time of the convention and its apportionment of delegates prior to the convention. Both are highly political questions, and their answers lie at the core of how the party perceives itself now and how it would like to present itself in the future.
165
Any doubt as to the importance the Supreme Court attaches to the freedom of a party convention to determine its own composition was put to rest recently in Cousins v. Wigoda. 31 Relying heavily on the freedom of association of individuals in the political decisionmaking process, the Court held that a state had no power to dictate to a party which delegates it should take from that state--regardless of the fact that the slate chosen by the convention had not been sanctioned in accordance with state law. Central to the Court's decision was the recognition that a party's choice of its associates in large measure molds its political beliefs and ideas. 32 This is particularly true of the party's quadrennial convention. What the convention decides--not only as to Presidential and Vice-Presidential nominees, but also as to party organization and ideology for the next four years--is primarily determined by who is permitted by the party to come to it.
166
Political parties are formed for the purpose of advancing certain commonly held ideas of individuals. These individuals have always enjoyed the right to structure the party in such a way as to seek to insure that those ideas should be perpetuated. A critical factor in this structuring process is the determination of which elements of the electorate as a whole are or could be most receptive to the party's viewpoint and programs. If the party, for example, were to decide that only individuals in rural areas can sympathize with its platform and determines to accept delegates only from such regions, clearly the party cannot be forced to accept delegates from urban areas as well without suffering a gross infringement of its right of free expression and association. As a matter of political influence--indeed, of political survival--it might well be suicidal for the party to shut out urban opinion from its deliberations on candidates and platform; but certainly no decision is more personal to the party and less appropriate for judicial interference than its choice of maintaining ideological purity at the possible cost of minimizing political effectiveness.
167
The direction--the nominees and the platform--the party takes at a convention is in large measure a function of whom it allows as delegates. From a constitutional perspective, the judiciary can no more prescribe the composition of the convention than it can dictate the make-up of the party, its political beliefs as stated in the platform, or its nominees.
168
At the same time, it is important to note that, at least in this country, most political parties are not content simply to profess a particular ideological bent. They want to win elections as well. If the political decisions they make--as to candidates, platforms, and delegate apportionment--are not vindicated at the polls, they are likely to amend their posture in an endeavor to achieve more satisfactory electoral results. To the extent that a party fails to represent the 'people's choice,' therefore, the party itself can be expected to remedy the situation. If it does not, other parties will be quick to capitalize on its error. In short, the electoral process makes the parties largely self-regulatory; their errors as to the will of the majority are largely self-corrective.
169
This does not mean, of course, that every political party will, or should, attempt to represent every interest in American society, or even every interest within the party itself. It may well be that in its zeal to appeal to a large cross-section of the populace the party will lose the support of that segment which in the past has given it its most loyal backing. Also, its ideological position may become so homogenized that the public loses confidence in the party's political integrity. If the party tries to stand for everything, it may wind up standing for nothing in the public mind. The questions of how far the party can afford to spread its ideology and of where its best support lies in the populace are archetypally political in nature. The courts have absolutely no standards--even assuming they have the right--to make such decisions. 33
170
At least two of the formulations of the 'political question' doctrine laid down by the Supreme Court in Baker v. Carr 34 are directly pertinent to this case. One bars entertainment of a suit if the court finds 'a lack of judicially discoverable and manageable standards for resolving (the controversy).' 35 The other, closely related, formulation requires the court to stay its hand when faced with 'the impossibility of deciding (the controversy) without an initial policy determination of a kind clearly for nonjudicial discretion.' 36 Although troubled by the problem, this court in Georgia found a 'manageable standard' for review of the Democratic Party's delegate allocation formula in the 'one man, one vote' requirement of the reapportionment decisions. 37 We concluded:
171
The principle which renders the questions raised in this litigation justiciable is that courts are competent to scrutinize the allocation schemes promulgated by the national parties in order to determine whether, given the context of political partisanship out of which such formulas necessarily arise, substantial deviations from equality of voting power at the Conventions are supported by legitimate justifications. 38
172
This conclusion was cited and found determinative of the justiciability issue in Bode as well. 39
173
Our decisions in Georgia and Bode were not reached without considerable pondering of the Supreme Court's then current development of the 'one man, one vote' doctrine. In the interim since the Court has illuminated in those cases discussed above 40 issues which are much closer and therefore much more determinative of the issues we face here. Reflecting on these most recent Supreme Court pronouncements, it is apparent that our analysis in Georgia and Bode is inconsistent therewith.
174
The errors of our previous position would seem to be two. First, that the 'one man, one vote' principle developed in reapportionment cases can have no application to a body which is neither elective nor representative, and which does not exercise general governmental powers. Second, even assuming a possible analogy between a legislature and a political party's nominating convention, it is impossible meaningfully to define and identify the constituency each delegate purportedly represents. These twin logical failings of the Georgia rationale should not, we submit, be allowed to resist analysis in yet another of this Circuit's delegate apportionment decisions. They are dealt with in turn below.A. The Non-Governmental, Non-Representative Nature of a Political Party Convention
175
The Supreme Court has repeatedly emphasized, in one reapportionment case after another, that the principle of 'one man, one vote' applies only to units of government which are representative in nature and exercise general governmental powers. 41 If the government unit has a very limited function and its members are not accountable to particular constituencies for their decisions, the 'malapportionment' of the members does no offense to the Constitution. 42
176
Political party nominating conventions meet neither of the criteria for application of the 'one man, one vote' principle. In the first place, not only do they not exercise general governmental powers, but, as discussed in Part I above, they are not a unit of government at all. It may well be that the convention serves an important societal interest in winnowing out some candidates and thereby reducing the number who appear on the ballot at the general election; but the incidental performance of a public benefit by a private association does not render its activity 'state action.' Even assuming the possibility of ascribing a governmental function to a political convention, the analogy would be much closer to a special purpose unit which does not exercise normal governmental powers over the citizenry (and whose acts have disproportionate effects on different segments of the community) than to a legislature or other body with more generalized governmental authority. 43
177
Second, and equally important, a political convention is not a representative body. Delegates need not be, and usually are not, elected to their positions. 44 They are not bound to vote for any candidate and do exercise their own discretion, based partially on occurrences subsequent to their selection and often on happenings at the convention itself. Even in the minority of states where delegates are elected or selected as the by-product of a Presidential primary, the delegate is only morally bound on a limited number of ballots to stick by a particular candidate. Furthermore, as Cousins v. Wigoda made clear, the convention is free to reject any individual delegate or slate of delegates--regardless of the method by which they were selected or elected--which does not meet with the convention's approval.
178
Thus, the delegate to a convention is not comparable to a representative in a legislature. A representative has a right to compel the legislature to seat him. 45 If he is not seated, the citizens of his state or district are effectively disenfranchised. In contrast, these same citizens enjoy no legal right to be represented at a political convention. They have no right, therefore, to insist on particular delegates, or to demand that those delegates vote in accordance with their wishes. To force a national convention involuntarily to accept delegates of a particular state's choosing would be in direct contravention of each delegate's and the party's right of free association.
179
To be sure, the major parties at present accept delegations from every state to their national conventions. Moreover, the delegates can be expected to make known to the convention the political views of actual and potential party adherents in their respective states. Indeed, the course of reform within the Democratic Party in recent years evidences the party's decision to become 'more open,' to encourage greater 'grass roots' participation, and to make its conventions theoretically more representative of the will of its 'constituency.' 46 This decision by the Democrats, however, was a political choice, borne of what the convention perceived was in the party's political self-interest. If that decision, in the view of succeeding conventions, is determined to have injected too much divisiveness and factionalism within the party, the party is free to rescind it.
180
So, in the case at bar, if the Republican Party has made the political choice to invite larger delegations from the western and southern states, or from states which have traditionally voted Republican, it may be because the party believes that is the way to keep its organization in those states strong, or because it feels an obligation to reward those states for past allegiance, or because it feels delegates from those states are more likely to be of the proper ideological bent. Regardless of its reasoning, or of its sagacity, that decision is for the Republican National Convention alone to make--not for one faction within the party which was unable to persuade the convention of the merit of its position, and not for the courts.
181
The judiciary has neither standards by which to make the decision nor the right to make the kinds of sensitive policy determinations which are required.
182
B. The Unidentifiable Nature of a Political Party's 'Constituency'
183
Even assuming the possibility of drawing an analogy between the apportionment of representatives in a legislature and the allocation of delegates to a convention, the 'one man, one vote' standard is well nigh impossible to apply in this situation. That standard depends on identifying the 'man' whose 'vote' is to be given equal weight with that of some other man. The reapportionment decisions use population as their criterion, and, not surprisingly, in Georgia the delegate apportionment plan was challenged on the ground that it failed strictly to conform to the relative population of the states. We correctly rejected that argument, noting that a convention delegate, unlike an elected official, does not represent the population as a whole, but a constituency which is '. . . significantly smaller than the whole of the electorate, and varies dramatically from state to state and from election to election.' 47
184
Inevitably, in Bode we were faced with the argument that the only acceptable criterion for allocating delegates was that of party strength in a state--as demonstrated by the average of the number of votes cast for the Democratic Presidential nominee in the three immediately preceding Presidential elections. We correctly rejected that argument as well, with the following analysis:
185
Nor is the individual to be represented identifiable except in a loose, conceptual sense. Appellees would define such individual as one who cast an anonymous vote for the Democratic Presidential candidate in an earlier year. It seems to us that the constituency represented at a national convention does not comprise solely 'Democrats,' so defined. To the extent that a voter, whether he be a registered Democrat or a Republican, third party adherent or independent, is given alternative slates by the two major parties, he has a stake in the outcome of the nominating process of both parties. Accordingly, the constituency for a national convention comprises to a certain degree the entire electorate. By viewing the constituency of the Democratic National Conv

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/331104. Public record. Not legal advice.