Petition — Ripon Society, Inc. v. National Republican Party

ea

Supreme Court, U. % ..

SEU ED |

DEC 22 185

IN THE

Supreme Court of the United ROOK, I,

OCTOBER TERM, 1975

No. —257- 884

THE RIPON SOCIETY, INC., ET AL.,

Petitioners,

Vv.

NATIONAL REPUBLICAN PARTY AND

| REPUBLICAN NATIONAL. COMMITTEE,

) Respondents

UNITED STATES COURT OF APPEALS FOR

PETITION FOR A WRIT OF CERTIORARI TO THE

THE DISTRICT OF COLUMBIA CIRCUIT

:

ROBERT M. PENNOYER

THOMAS THACHER

PATTERSON, BELKNAP & WEBB

30 Rockefeller Plaza

New York, New York 10020

Counsel for Petitioners

Of Counsel:

GEORGE M. COBURN

1700 K Street, N.W.

Washington, D.C. 20006

WILLIAM J. MULLER

30 Rockefeller Plaza

New York, New York 10020

ae Sa a —S

WILSON - EPES PRINTING Co., INC. - RE 7-6002 - WASHINGTON. D. C. 20001

teat 1 ee

Opinions below

Jurisdiction

Questions presented

Statement of the case ...

INDEX

The Party’s formula for apportioning delegates to

the 1976 Republican National Convention ...............

The disparities that will result from the use of the

1976 Formula at the 1976 Convention

Maximum disparities in representation at the

1976 Convention

Maximum disparity in the Electoral College...

Deviations from mean in the representation

awarded different states and the District of

Columbia at the 1976 Convention and in the

Electoral College.........

The disparities that would result from the use of

the 1976 Formula following an election in which

the Republican ticket does not carry a number of

states

Reasons for Allowance of Writ.............---.-------.eeeceeeeeee eee

I. The decision below rules on constitutional issues

Il.

Il.

expressly reserved by this Court in Cousins V.

Wigoda, and leaves the law on delegate appor-

tionment in utter confusion ....

By sanctioning the Republican Party’s victory

bonus system the decision below has eviscerated

the proportionality mandated by Article II, Sec-

tion 1 of the Constitution ........

The rulings made or reserved by the court below

with respect to the threshold questions and the

merits clearly conflict in principle with the reap-

portionment decisions of this Court

ow wn G

10

12

12

15

18

Il

INDEX—Continued

A. State action

Ne

D. The merits

IV. Even if the timing forecloses relief for the 1976

Convention, the continuing controversy makes

declaratory and injunctive relief essential

Conclusion ....

Il

CITATIONS

Cases: Page

Baker v. Carr, 369 U.S. 186 (1962) ......................... 20, 23

Barthelmes v. Morris, 342 F. Supp. 153 (D. Md.

ITED - dceseiaistincdeheasdecislesdedeteeneatteatatdiehas 13

Bode V. National Democratic Party, 452 F.2d 1302

(D.C. Cir. 1971), cert. denied, 404 U.S. 1019

IS eihtkk atid caste cahlkaechiiceincalabaialeaia ....5, 14, 16, 18

Buckley v. Valeo, —— F.2d —— (D.C. Cir. 1975)

appeal docketed, 44 U.S.L.W. 3162 (U.S. Sept.

19, 1975) (Nos. 75-486, 75-437) ........................ 14

Cousins V. Wigoda, 419 U.S. 477 (1975) _............ 12, 18, 19

Doty v. Montana State Democratic Central Com-

mittee, 333 F. Supp. 49 (D. Mont. 1971) -............ 13

Gaffney V. Cummings, 412 U.S. 735 (1973).............. 17

Georgia Vv. National Democratic Party, 447 F.2d

1271 (D.C. Cir.), cert. denied, 404 U.S. 858

SE catctiadieaiiaiaancialiathaecienieiiadairhidahiaienbsdeinbeeaiienal 5, 14,18

Gray V. Sanders, 372 U.S. 368 (1968) -................ 16, 18, 22

Irish Vv. Democratic-Farmer-Labor Party of Min-

nesota, 399 F.2d 119 (8th Cir.), aff’g 287 F.

Supp. 794 (D. Minn. 1968)_....... 13

Jackson Vv. Metropolitan Edison Co., 419 U.S. 345

ik 18, 19

Kramer V. Union Free School District, 395 U.S. 621

(1969) ......... a llth ideialidaaiaditits atts 23

Lucas V. Colorado General Assembly, 377 U.S. 713

=a ieee hiatiaiaiiateeiiae aids 23

Mazey V. Washington State Democratic Committee,

319 F. Supp. 673 (W.D. Wash. 1970) ................... 13

McPherson V. Blacker, 146 U.S. 1 (1892) —.......... 19, 20, 21

Moore V. Ogilvie, 394 U.S. 814 (1969)... 22

Moose Lodge No. 107 V. Irvis, 407 U.S. 163 (1972) .. 18

Nixon v. Condon, 286 U.S. 73 (1932) ..................... 18, 19

O’Brien Vv. Brown, 409 U.S. 1 (1972) ..................... 19

Ray Vv. Blair, 343 U.S. 214 (1952)........................... 20

Redfearn Vv. Delaware Republican State Committee,

502 F.2d 1128 (8rd Cir. 1974) .............................. 13

Republican State Central Committee of Arizona

v. Ripon Society, 409 U.S. 1222 (1972) -.............. 5

lv Vv

CITATIONS—Continued Miscellaneous: Page

Page Developments in the Law—Elections, 88 Harv. L.

Reynolds v. Sims, 377 U.S. 5383 (1964) ......... 16, 21, 22, 23 Ee 20

Ripon Society, Inc. v. Nat.onal Republican Party, Nomination and Election of the President and Vice

343 F. Supp. 168 (D.D.C. 1972) .....0002202. 4 President of the United States (Government

Ripon Society, Inc. v. National Republican Party, TTT TT 24

369 F. Supp. 368 (D.D.C. 1974).......000220. 2,5, 6,7

Ripon Society, Inc. v. National Republican Party,

—— F.2d —— (D.C. Cir.), Civil Nos. 74-1337

and 74-1358 (March 5, 1975) (slip op.) -............ 2,5, 12

Seergy V. Kings County Republican County Com-

mittee, 459 F.2d 308 (2nd Cir. 1972)..............-.. 14, 26

Smith v. Allwright, 321 U.S. 649 (1944) _....... 18

Smith v. State Executive Committee, 288 F. Supp.

8) 8 FS ne ” 13

Storer v. Brown, 415 U.S. 724 (1974) ..................... 26

Terry V. Adams, 345 U.S. 461 (1953) —................... 19, 22

United States v. Classic, 313 U.S. 299 (1941) ......... 18, 21

Williams v. Rhodes, 393 U.S. 23 (1968).................. 20

Wesberry Vv. Sanders, 376 U.S. 1 (1964).................. 15, 25

Constitutional Provisions:

SOD ae 15

Article II, Section 1 ...................... 3, 4, 15, 16, 17, 18, 19, 20

PSS a 6

DO 3,4

GIES TEE ccnntentciainetiee ... 16, 25

Amendment XIV, Section 1 ... 3, 4, 6, 15, 17, 21

Statutory Provisions:

SD WE BCE cccvtccttne 2

SB UBC. 9 TGR) Ge Ce cence 4, 20

42 U.S.C. § 1988 ............... 4

42 U.S.C. § 1985(2) and (3). emennncnstenuseaiaaaaaa 4

GB TE. BB ceccccnsvinesicstadsmiaaninn 4

The Federa! Election Campaign Act Amendments

fe 14

IN THE

Supreme Court cf the United States

OCTOBER TERM, 1975

No.

THE RIPON Society, INC., ET AL.,

Petitioners,

Vv.

NATIONAL REPUBLICAN PARTY AND

REPUBLICAN NATIONAL COMMITTEE,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The petitioners, The Ripon Society, Inc., David L.

Allison, Robert D. Behn, Howard F. Gillette, Jr., Michael

J. Halliwell, Katherine E. Sasseville, Tanya M. Silver-

man, Robert W. Sweet, George A. Vradenburg and

Quincy White, respectfully pray that a writ of. certiorari

issue to review the en banc judgment and opinion of

the United States Court of Appeals for the District of

Columbia Circuit entered in this proceeding on Septem-

ber 30, 1975.

OPINIONS BELOW

Copies of the following opinions and judgments en-

tered in this proceeding are included in the appendix

hereto, cited as “App. ——.”

2

1. The opinion and order of the United States District

Court for the District of Columbia, Judge William B.

Jones, entered on January 11, 1974. 369 F. Supp. 368.

App. 1, 17.

2. The opinion and judgment of a division of the

Court of Appeals entered and vacated on March 5, 1975,

including the opinion for the court by Chief Judge Baze-

len and a dissent by Senior Circuit Judge Danaher. ——

F.2d —— (D.C. Cir.), Civil Nos. 74-1337 and 74-1358

(March 5, 1975) (slip op.). App. 19, 59, 66, 67.

3. The en bane opinion and judgment of the Court

of Appeals, not yet reported, entered on September 30,

1975 (App. 68, 171), including the opinion for the court by

Circuit Judge McGowan (App. 69); concurring opinions

by Circiut Judges MacKinnon, Tamm and Wilkey (App.

108, 109, 127); a dissent by Senior Circuit Judge Dana-

her (App. 159); and a dissent by Chief Judge Bazelon,

which alone adheres to the position taken by a division

of the court in the opinion and judgment entered and

vacated on March 5, 1975. App. 148.

JURISDICTION

The judgment of the Court of Appeals was entered on

September 30, 1975. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the decisions of the National Republican

Party as to the apportionment of delegates to its national

convention constitute state or governmental action and,

if so, whether or to what extent principles of the political

question doctrine counsel against judicial intervention.

2. Whether the allocation of delegates from the states

and the District of Columbia to the national convention

of the Republican Party is subject to the principles of

eo ee ee ++

3

the reapportionment decisions and, if so, whether the

system of awarding bonus delegates to states producing

Republican victories in specified elections, included in the

formula for apportionment of delegates to the 1976 Re-

publican National Convention, violates the Equal Protec-

tion Clause of the Fourteenth Amendment, the Fifth

Amendment and Article II, Section 1 of the Constitution.

3. Whether, although this case is not likely to be adju-

dicated in time to permit the Republican Party to adopt

a new apportionment formula for the 1976 Republican

National Convention, the continuing nature of the con-

troversy requires declaratory and injunctive relief with

respect to the use of the victory bonus system before the

1976 Republican National Convention adopts the delegate

apportionment formula for the 1980 Republican Nationai

Convention.

4. Whether The Ripon Society, Inc., in addition to its

nine members whose standing as plaintiffs was affirmed

by the Court below, has standing to bring this action.

STATEMENT OF THE CASE

This petition is part of a continuing challenge, now

entering its fifth year, to the victory bonus system used

by the Republican Party in the allocation of delegates to

the 1976 Republican National Convention.

The petitioners, plaintiffs below, referred to herein

collectively as “Ripon,” are The Ripon Society, a Repub-

lican research and policy organization, and nine members

of the Society who are qualified Republican voters in

California, Illinois, Indiana, Massachusetts,’ Minnesota,

New Jersey, New York, or the District of Columbia.

The respondents are the National Republican Party

and the Republican National Committee which has “the

: After judgment of the District Court plaintiff Behn changed his

residence from Massachusetts to North Carolina. App. 74 n.8.

4

general management of the affairs of the Republican

Party in the United States and its territories subject to

direction from time to time of the National Convention.” *

The action was commenced in December 1971. The

complaint alleged that the Republican Party’s system of

apportioning bonus delegates to its national convention

to states producing Republican victories results in in-

vidious discrimination against Republicans of different

states and regions in violation of the Equal Protection

Clause of the Fourteenth Amendment, the Fifth Amend-

ment and Article II, Section 1 of the Constitution of the

United States. It sought declaratory and injunctive re-

lief with respect to the victory bonus system and the

standards to be used in the apportionment of delegates

to the 1976 Republican National Convention. Jurisdic-

tion was invoked under 28 U.S.C. § 1843(3) and (4)

and the civil rights statutes, 42 U.S.C. §§ 1983, 1985(2)

and (3), and 1988. Joint Appendix 58a, 70a.

Prior to the 1972 Republican National Convention the

District Court granted plaintiffs partial relief, declaring

that. the allocation of a uniform number of bonus dele-

gates to states qualifying for them, in the context of a

formula which allocates the remaining delegates in pro-

portion to each state’s share of the Electoral College vote,

violates the Equal Protection Clause, but that a bonus

system which rewards states producing Republican vic-

tories by allocating a number of delegates reasonably

proportionate to the Electoral College vote or the number

of Republican votes which produced the victory would

have a constitutionally rational basis. 343 F. Supp. 168,

177-78 (D.D.C. 1972). The court also enjoined the Re-

publican Party from adopting a formula for the 1976

Convention which included the proscribed uniform vic-

tory bonuses. Jd. at 178.

2 Rule 19 of the Rules adopted at the 1972 Republican National

Convention. See Page 15la of the Joint Appendix filed below, cited

herein as “Joint Appendix ——.”

Three days before the 1972 Republican National Con-

vention convened Justice Rehnquist stayed the District

Court order. Republican State Central Committee of Ari-

zona V. Ripon Society, 409 U.S. 1222 (1972).

By a vote of 910 to 434, the 1972 Convention, follow-

ing the recommendation of the Republican National Com-

mittee and the Rules Committee of the Convention,

adopted a formula for the apportionment of delegates to

the 1976 Convention (“the 1976 Formula”) which in-

cludes both uniform and proportional victory bonuses.

Thereafter Ripon amended its complaint to challenge

the victory bonus system included in the 1976 Formula.

The District Court denied a motion to intervene as plain-

tiff by the Republican State Committee of Pennsylvania

on the ground that its interests were adequately repre-

sented by Ripon, and again enjoined the use of uniform

victory bonuses but upheld the formula in other respects.

369 F. Supp. 368, 376 (D.D.C. 1974), App. 17-18. Both

sides appealed. On July 31, 1974, after all briefs had

been filed, Ripon moved to advance the argument because

of the need to secure timely adjudication. The Republi-

can Party did not join in this motion.

On March 5, 1975, Chief Judge Bazelon writing for a

majority of a division of the Court of Appeals reaffirmed

the court’s earlier holdings in Georgia v. National Demo-

cratic Party, 447 F.2d 1271 (D.C. Cir.), cert. denied,

404 U.S. 858 (1971),and Bode v. National Democratic

Party, 452 F.2d 1302 (D.C. Cir. 1971), cert denied,

404 U.S. 1019 (1972), that the court has jurisdiction

and that the case involves state action and is justiciable.

App. 19, 25-34. He also ruled uniform and proportional

victory bonuses unconstitutional in toto and would have

enjoined their use for the 1976 Convention. App. 23,

34-55. The division judgment was vacated and the case

set for reargument before the court en banc. App. 67.

On September 30, 1975, following reargument the Court

of Appeals entered its en bane opinion and judgment

6

reversing the judgment of the District Court and re

manding with directions to dismiss the complaint. App.

68, 107, 171. Without deciding the threshold questions of

jurisdiction, state action and justiciability, the en banc

opinion by Judge McGowan concludes that the Republi-

can Party’s right of association under the First Amend-

ment deserves greater protection than the rights of voters

in the Presidential nominating process, and that the

Equal Protection Clause, assuming it is applicable, “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.” App. 101-02. As summarized be-

low, the result sanctions disparities in convention rep-

resentation which far exceed the disparities reflected in

the Electoral College apportionment.

The Party’s formula for apportioning delegates

to the 1976 Republican National Convention

The text of the rule containing the 1976 Formula

is reproduced in the District Court opinion. 369 F. Supp.

at 370-71, App. 4-5 n.3.

Based on the 1972 election results the 1976 Conven-

tion will include a total of 2,242 delegates from the states,

the District of Columbia and the territories. Exhibit

A, App. 177-80.

1,605 delegates, or 72%, are apportioned to the states

on the basis of three delegates for each member of the

Electoral College. This gives a basic delegation of nine

to each of the smallest states which has three members

in the Electoral College, and a basic delegation of 135

to the largest, California, with 45 Electoral College

members.

295 delegates, or 13%, are apportioned to the states

on the basis of uniform victory bonuses which award

up to nine additional delegates to each state regardless

7

of size: 4.5 delegates (rounded to 5) to each of the 49

states which cast its Electoral College vote for the 1972

Republican nominee, and one additional delegate (but

no more than 4) to each state which in 1972 or there-

after elected a Republican Senator, Governor or a ma-

jority of the state’s Representatives in the House.

312 delegates, or 14%, are apportioned to the states

on the basis of a proportionate victory bonus equal to

60% of the Electoral College vote of each of the 49

states carried by the Republican nominee in 1972.

Of the remaining 1%, 14 delegates are allocated to

the District of Columbia, 8 to Puerto Rico and 4 each

to Guam and the Virgin Islands.

The disparities that will result from the use

of the 1976 Formula at the 1976 Convention

Statistics in the record confirm that the victory bonuses

cause disparities in representation which, measured by

population and party vote, vastly exceed the disparities

reflected in the Electoral College apportionment.’ The

District Court having decided the case on cross motions

for summary judgment, these statistics are undisputed.

The uniform victory bonuses which could give each

state, regardless of size, up to 9 additional delegates

would provide a 100% increase in the basic delegation

of each of the six least populous states, but only a 6.7%

increase for California’s basic delegation of 135 and a

7.3% inerease in New York’s basic delegation of 123.

The proportionate victory bonus, equal to 60% of the

Electoral College vote of each state qualifying for the

bonus, will increase the basic delegation of every state

’ The record below shows the disparities that will occur at the

1976 Republican National Convention on the basis of the 1972

election results. It does not reflect the results of elections since

1972, which could give up to three additional bonus delegates to any

state electing a Republican Governor, Senator or Republican ma-

jority to its seats in the House since 1972.

8

except Massachusetts by 20% to 22%. (E.g., a state

with three Electoral College votes and a basic delega-

tion of nine will be entitled to a bonus of 1.8 delegates

which, when rounded up to 2, will equal a 22% increase. )

This victory bonus system will result in the following

disparities in representation at the 1976 Convention:

50% of the delegates will be apportioned to states

which have 45.9% of the Electoral College vote and

38.9% of the population, and cast 38.6% of the Re-

publican Presidential vote in 1972. Exhibit E, App. 187-

88. The eight most populous states‘ will be alloted

39.1% of the delegates to the 1976 Convention although

they have 42.4% of the Electoral College vote and 48.7%

of the population, and cast 48.6% of the Republican

vote in 1972. Exhibit F, App. 189.

A glance at the statistical tables reproduced from the

record in the appendix hereto* confirms that the dis-

parities in the population and 1972 party vote represented

by delegates at the 1976 Convention will vastly exceed

the disparity in population represented by members of

the Electoral College.

‘California, New York, Pennsylvania, Texas, Illinois, Ohio,

Michigan and New Jersey.

° As noted in the vacated division opinion (App. 24, 36 n.26) the

record in the District Court did not include schedules comparing

the deviations from mean population and party vote represented by

delegates from each state and the District of Columbia, or the devia-

tions from mean population in their Electoral College representa-

tion. Based on undisputed statistics in the record schedules listing

such deviations were prepared and filed below prior to reargu-

ment before the Court of Appeals sitting en banc, and are included

as exhibits in the appendix hereto. Judge Bazelon’s dissent com-

ments on the significance of such data. App. 148 n.2.

Each exhibit listing deviations from mean lists the states in

the same order—in the order of their deviations from mean popula-

tion in the Electoral College.

9

Maximum disparities in representation

at the 1976 Convention, Exhibits B and C, App. 181, 183

1972 vote per delegate

District of Columbia 2,515

Florida 28,148

Ratio 11.19 tol

Population per delegate

Alaska 17,775

Massachusetts 132,306

Ratio 7.44 tol

Maximum disparity in the Electoral College,

Exhibit D, App. 185

Population per E.C. member

Alaska 100,724

New York 443,677

Ratio 44tol

Deviations from mean in the representation

awarded different states and the District of

Columbia at the 1976 Convention and in the

Electoral College, Exhibits G and H, App. 190, 192

In the

Electoral At the 1976 Convention:

College:

Population Party Vote Population

Average deviation +22.2% + 29.3% + 29.3%

Largest over-

representation 73.3% 88.1% 80.5%

Largest under-

representation —17.5% — 33.2% — 45.0%

Maximum deviation 90.8% 121.3% - 125.5%

Massachusetts, which cast 45% of its vote for the

Republican nominee in the 1972 election, was the only

state which did not qualify for the Presidential bonuses.

Its representation at the 1976 Convention will deviate by

—45.0% from mean population and —22.4% from mean

party vote, compared to the —7.6% deviation from mean

population in its Electoral College representation. Ez-

hibits G and H, App. 190, 192.

10

The disparities that would result from the use of the

1976 Formula following an election in which the Republi-

can ticket does not carry a number of states.

To show the effect of the victory bonus system where

a number of states do not qualify for the Presidential

bonuses, Ripon filed undisputed statistics confirming the

disparities that would have resulted had the 1976 For-

mula been used for the 1972 Convention where the

apportionment would have depended on the results of

elections from 1968 to 1971, including the 1968 Presi-

dential election in which the Republican nominee carried

only 32 states. Exhibit I, App. 194-97.

The disparities in population and 1968 party vote

represented by delegates at the 1972 Convention would

have vastly exceeded the disparities in population rep-

resented by members of the Electoral College (Exhibits

H, J and K, App. 192, 198, 200):

In the

Electoral At the 1972 Convention:

College :

Population Party Vote Population

Average deviation +22.2% + 36.7% + 32.3%

Largest over-

representation 73.3% 86.6% 83.2%

Largest under-

representation —17.5% — 61.0% — 45.5%

Maximum deviation 90.8% 147.6% 128.7%

There would have been horrendous disparities between

states with similar representation in the Electoral

College.

California has 45 Electoral College votes, or some

10% more than New York’s 41. This results in almost

identical deviations from mean population of —17.4%

and —17.5%, respectively. Exhibit H, App. 192. In

1968 California and New York cast 47.8% and 44.3%

of their votes for the Republican Presidential nominee.*

* For the 1968 election results, see Joint Appendix 170a.

11

The Republican ticket carried only California. Use of

the 1976 Formula would have caused the following dis-

parities in representation between California and New

York (Exhibits I, J and K, App. 194, 198, 200):

California New York Difference

Number of delegates 168 125 30%

Deviation from mean

population —18.8% — 45.5% 26.7%

Deviation from mean

party vote — 32.0% — 53.8% 21.8%

The Electoral College apportionment of 10 votes to

Minnesota and 12 votes to Virginia results in deviations

from mean population of —0.8% and —2.6%, respec-

tively. Exhibit H, App. 192. In 1968 Minnesota and

Virginia cast 41.5% and 43.4% of their votes for the

Republican ticket, which carried Virginia. Based on the

1976 Formula there would have been the following dis-

parities in representation between Virginia and Minne-

sota (Exhibits I, J and K, App. 194, 198, 200):

Virginia Minnesota Difference

Number of delegates 50 31 61%

Deviation from mean

population 7% —22.8% 29.8%

Deviation from mean

party vote 24.5% —35.8% 60.3%

Even if the uniform victory bonuses had been elimi-

nated from the 1976 Formula, leaving only the pro-

portional victory bonus of 60% of the Electoral College

vote for each state which carried for the Republican

ticket in 1968, the representation accorded New York

would have deviated from the mean by —32.1% in

population, a disparity of more than 22 percentage points

from the —10.0% population deviation for California,

and by —39.6% in party vote, a disparity of more than

17 percentage points from the —22.2% party vote de-

12

viation for California; and the representation accorded

Minnesota would have deviated from the mean by

—13.3% in terms of population, a disparity of 18.9%

percentage points from the +5.6% population deviation

for Virginia, and by —25.4% in terms of party vote, a .

disparity of 48.8 percentage points from the +23.4%

party vote deviation for Virginia. Exhibits L and M,

App. 202, 204.

Chief Judge Bazelon summarized the disparities docu-

mented by the record and concluded that the deviations

resulting from the 1976 Formula “are far in excess of

the deviations permitted” in reapportionment decisions

of this Court. App. 28-25, 35, 148 n.2. The en bane

opinion makes no reference to these disparities other

than to state that “[pJ]laintiffs have repeatedly stressed

that particular states and regions are favored under the

formula.” App. 105 n.64.

REASONS FOR ALLOWANCE OF WRIT

I, The decision below rules on constitutional issues ex-

pressly reserved by this Court in Cousins v. Wigoda,

and leaves the law on delegate apportionment in utter

confusion.

This case raises questions on which this Court intimated

no view in Cousins v. Wigoda, 419 U.S. 477 (1975):

“(1) whether the decisions of a National Political

Party in the area of delegate selection constitute

state or governmental action, and, if so, whether

or to what extent principles of the political ques-

tion doctrine counsel against judicial intervention... .

““(2) whether national political parties are sub-

ject to the principles of the reapportionment de-

cisions, or other constitutional restraints, in their

methods of delegate selection and allocation. . . .”

419 U.S. at 483-84 n.4.

The highly important questions reserved in Cousins

and raised by this case are ripe for decision by this

13

Court. The decision below leaves the law on the appli-

cability of the principles of the reapportionment decisions

to delegate apportionment in utter confusion.

In 1968 the Eighth Circuit held that a state political

party may select national convention delegates through

a malapportioned state convention system. Jrish v. Demo-

cratic-Farmer-Labor Party of Minnesota, 399 F.2d 119

(8th Cir.), aff'g 287 F. Supp. 794 (D. Minn. 1968) ; and

the District Court for the Northern District of Georgia

declined to declare a major party’s procedures for select-

ing delegates to a national convention invalid but “ad-

monished” the Democratic State Committee to consider

prospective changes which would afford equal protection.

Smith v. State Executive Committee, 288 F. Supp. 371,

377 (N.D. Ga. 1968). The result in both cases was

affected by the imminence of the national convention and

the inability to grant prospective relief for that conven-

tion. In Jrish the District Court also noted that it was

presented with a “. . . challenge to the middle echelon

of ...” the presidential election process and that “[w]hat-

ever might be done by this court could have little effect

on the entire process ...” because the “. . . court has no

control over the National Democratic party. .. .” 287

F. Supp. at 803.

Since 1968, except for the decision below, Federal

courts have consistently held that the one man, one vote

principles of the reapportionment decisions apply to dele-

gate apportionment to state and national conventions.

Maxey v. Washington State Democratic Committee, 319

F. Supp. 673 (W.D. Wash. 1970); Doty v. Montana

State Democratic Central Committee, 333 F. Supp. 49

(D. Mont. 1971); Barthelmes v. Morris, 342 F. Supp.

153 (D. Md. 1972) (declining relief because of laches).

In Redfearn v. Delaware Republican State Committee,

502 F.2d 1123 (3rd Cir. 1974), although one Third Cir-

cuit judge ruled that malapportionment by a political

party to achieve its objectives would be permissible, on

14

remand the District Court declared that the one man,

one vote principle is applicable to state delegate appor-

tionment. 393 F. Supp. 372 (D. Del. 1975). In two 1971

decisions the court below held the one man, one vote

principle applicable to national convention apportion-

ment. Georgia Vv. National Democratic Party and Bode

v. National Democratic Party, supra. The Second Cir-

cuit also held a political committee’s nominating pro-

cedures for party candidates subject to the one man,

one vote principle, affirming the distinction between “in-

ternal” party affairs and party nominations. Seergy

v. Kings County Republican County Committee, 459 F.

2d 308 (2nd Cir. 1972).

In applying the principles of the reapportionment de-

cisions to this case the vacated opinion of the division

below was therefore consistent with every reported de-

cision by a Federal court since 1968 bearing on delegate

apportionment. Adjudication by this Court as to the

application of reapportionment principles to a major

party’s national convention is thus essential to ensure

consistency among circuits in decisions involving delegate

apportionment.

The only pending case which the court suggests might

bear on the resolution of the issues in this case is Buckley

v. Valeo, F.2d —— (D.C. Cir. 1975) appeal dock-

eted, 44 U.S.L.W. 3162 (U.S. Sept. 19, 1975) (Nos.

75-436, 75-437), challenging provisions of the Federal

Election Campaign Act Amendments of 1974. See App.

80-81, and cf. the comment in Chief Judge Bazelon’s

dissent, App. 158 n.18. It is clear, however, that the

issues raised by this case are of such overriding national

importance as to require resolution by this Court ir-

respective of the disposition of that case.

The voluminous opinions of the lower courts, as well

as the complete record and extensive briefing below, give

assurance that this case is unusually well prepared for

review by this Court.

15

II. By sanctioning the Republican Party’s victory bonus

system the decision below has eviscerated the pro-

portionality mandated by Article II, Section 1 of the

Constitution.

The major fallacy in the decisions below, which per-

meates the result reached and every step in the court’s

analysis, stems from a common defect—the failure to

grasp and apply the modified proportionality mandated

for the Presidential election by Article II, Section 1 of

the United States Constitution, which provides that “Each

State shall appoint, in such Manner as the Legislature

may direct, a number of Electors, equal to the whole

Number of Senators and Representatives. . . .”

It is the thesis of Ripon’s case and the thrust of the

vacated division opinion (App. 45 and id. at n.46) that,

although the Republican Party may legitimately employ

standards which reflect relative differences in the party

strength of each state and the District of Columbia, the

use of a victory bonus system or other delegate ap-

portionment standards which are completely at odds with

the proportionality mandated for the Electoral College

deprives the citizens of this nation of political rights

secured by Article II, Section 1 and the Equal Protec-

tion Clause, and that federal courts may intrude in the

party’s apportionment decisions to the limited extent re-

quired to foreclose the use of such standards.

Wesberry v. Sanders, 376 U.S. 1 (1964) held that

the requirement of Article I, Section 2 of the Constitu-

tion that representatives be chosen “by the People of the

several States” mandates that “as nearly as is prac-

ticable one man’s vote in a Congressional election is to

be worth as much as another’s.” 376 U.S. at 8-9. Anal-

ogous reasoning supports the conclusion that the use of

apportionment standards for a national nominating con-

vention which defy the modified proportionality reflected

in the Electoral College would deprive the citizens of the

several states of political rights secured to the people

16

of this nation by Article II, Section 1, and defeat another

principle solemnly embodied in the Great Compromise

upon which our government was founded.

It is an accident of history that the fundamental

principles of the reapportionment decisions were de-

veloped in cases involving elections within a single state.

In several of these cases the proponents of malapportion-

ment tried to use the federal analogy to justify terri-

torial discrimination. Reynolds v. Sims rejected the

“fajttempted reliance on the federal analogy .. . [as]

little more than an after-the-fact rationalization offered

in defense of maladjusted state apportionment arrange-

ments.” 377 U.S. 538, 573 (1964). Gray v. Sanders

rejected an attempt to use the Electoral College analogy

to justify weighted voting in a party primary within

a single state. 372 U.S. 368, 378 (1963).

Now that we have a federal case the Republican Party

wants to disregard Article II, Section 1, contending

below that the standard for determining whether a

delegate apportionment formula meets constitutional re-

quirements is found in the Twelfth Amendment which,

in the event of a deadlock in the Electoral College, leaves

the election of the President to the House where each

state casts one vote. The decision below reaches the

same result by sanctioning the use of a victory bonus

system which is completely at odds with the proportion-

ality mandated for the Presidential election by Article

II, Section 1.

It is important to emphasize that mathematical equality

cannot be the objective of delegate apportionment to a

national convention. Ripon has never contended other-

wise. The Electoral College justifies a limited and meas-

urable disparity in favor of each of the smaller states.

The Democratic Party’s use of a delegate apportionment

formula combining elements of party vote and the

Electoral College apportionment was upheld by the court

below in Bode. 452 F.2d at 1307-10. The Republican

17

Party clearly has wide discretion to use apportionment

standards which have a rational relationship to the pos-

sible constituency in each state and the District of Co-

lumbia and reflect variations in party strength so long

as such standards are not wholly incompatible with the

modified proportionality reflected in Article II, Section 1.

In state districting this Court has recognized that ap-

portionment is essentially a political process, and that

judicial interest should be at its lowest ebb where a

state, within the limits of the population equality stand-

ards of the Equal Protection Clause, purports “fairly to

allocate political power to the parties in accordance with

their voting strength... .” Gaffney v. Cummings, 412

U.S. 735, 754 (1973). The same principles apply with

even greater force to national convention apportionment

where the constituency to be represented cannot be ju-

dicially defined by any one standard. Permitting the

party wide discretion as to the choice of elections by

which to measure party strength, and as to the weight

to be assigned to each element of the formula, will not

satisfy any single one man, one vote standard, but will

preserve the proportionality mandated by Article II, Sec-

tion 1 and result in deviations which, when measured

by both party vote and population, are no greater than

those reflected in the Electoral College apportionment.

The Republican Party asserted below that no “formula

is possible which will not produce such inequities” which

result from the victory bonus system. Joint Appendix

228a, 231a. To demonstrate the fallacy of such a claim,

Ripon introduced two sample formulas combining ele-

ments of Electoral College apportionment and party vote

in recent elections. Both samples result in deviations

which, when measured by both population and party vote,

do not exceed the deviations reflected in the Electoral

College apportionment. Joint Appendix 303a-316a, and

Ripon’s Memorandum pursuant to Order of March 19,

1975, Schedules 5 and 6.

18

The point was not to require the Party to use either

formula but to show that the Party would have no dif-

ficulty structuring a formula which allows for varia-

tions in party strength without destroying the propor-

tionality mandated by Article II, Section 1.

III. The rulings made or reserved by the court below with

respect to the threshold questions and the merits

clearly conflict in principle with the reapportionment

decisions of this Court.

A. State Action.

The court below reserves decision on the question

whether a major party’s decision with respect to the ap-

portionment of delegates to a national convention in-

volves state action (App. 77-81), withdrawing from its

holdings in Bode and Georgia, where the court had cited

decisions of this Court demonstrating that “it makes no

difference for purposes of finding state action that the

state party acts through a statewide primary, a state

party convention, or a state party committee.” 447

F.2d at 1275 and id. at n.6, citing United States v.

Classic, 313 U.S. 299 (1941) (party primary); Gray

v. Sanders, 372 U.S. 368, 374-75 (1963) (party pri-

mary); Smith v. Allwright, 321 U.S. 649 (1944) (state

convention) ; Nixon v. Condon, 286 U.S. 73 (1932) (state

committee).

As the basis for its uncertainty the opinion below

cites the intervening decisions of this Court in Moose

Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) and Jack-

son V. Metropolitan Edison Co., 419 U.S. 345 (1974)

and its concern that the “nexus” between the states and

the delegate allocation formula is open to question, par-

ticularly in light of Cousins, where this Court held that

an individual state is without power to interfere with

the delegate selection procedures of a national conven-

tion. App. 78.

In relying on Moose and Jackson the court below

failed to note, as Judge Bazelon’s dissent points out

19

(App. 150-51), that this Court explicitly distinguished

cases where it had “found state action present in the

exercise by a private entity of powers traditionally ex-

clusively reserved to the State. See, e.g., Nizon v. Con-

don, 286 U.S. 73 (1932) (election); Terry v. Adams,

345 U.S. 461 (1953) (election). ...” Jackson v. Metro-

politan Edison Co., 419 U.S. at 352. Nixon v. Condon

and Terry v. Adams, both involved racial discrimination

in party primaries. Terry found state action in a party’s

primary even where the primary was not mandated by

the state’s election laws. 345 U.S. at 469

The court’s reliance on Cousins, where this Court ex-

pressly reserved the question of state action, is misplaced.

The same national interest in the effectiveness of the

party’s national convention which secures the party’s

process for resolving delegate seating contests from in-

terference by a single state (Cousins) or by a federal

court (O’Brien v. Brown, 409 U.S. 1 (1972)) makes

essential limited intervention in the party’s decision with

respect to delegate apportionment to prevent the use

of apportionment standards completely at odds with

Article II, Section 1 of the Constitution.

The court below refuses to recognize that Article II,

Section 1 is the source of the state action in a party’s

decision with respect to delegate apportionment, stating

only that if Article II, Section 1 has “any force at all

beyond its specific commands, it also is confined to the

federal government.” App. 77 n.16. This conflicts with

decisions of this Court which make clear that “the ap-

pointment and mode of appointment of electors belong

exclusively to the states . . .”, McPherson v. Blacker,

146 U.S. 1, 35 (1892); that there “can be no question

but that... [Article II, Section 1] does grant extensive

power to the States to pass laws regulating the selection

of [Presidential] electors’ and that “tnese granted

powers are always subject to the limitation that they

may not be exercised in a way that violates other specific

20

provisions of the Constitution”, Williams v. Rhodes,

393 U.S. 23, 29 (1968); and that a party’s adoption of

rules governing the selection of its Presidential candi-

dates, at least to the extent of requiring a loyalty oath

of its candidates for Presidential elector, “is an exercise

of the state’s right {under Article II, Section 1] to ap-

point electors in such manner, subject to possible con-

stitutional limitations, as it may choose.” Ray v. Blair,

343 U.S. 214, 227 (1952).

B. Jurisdiction.

The court below reserved decision on the question of

jurisdiction over the subject matter. App. 81-82 n.26.

There can be no question as to the court’s jurisdiction

in view of the formulation in Baker v. Carr, 369 US.

186 (1962), which made clear that under 28 U.S.C.

§ 1343(3), one of the jurisdictional statutes relied on

by Ripon, Congress has assigned jurisdiction over equal

protection claims by voters to the District Courts, citing

an “unbroken line of our precedents” which sustain “the

federal courts’ jurisdiction of the subject matter of fed-

eral constitutional claims of this nature.” 369 U.S. at

201.

This case also involves voting rights. The individual

plaintiffs include qualified voters from the District of

Columbia and seven states, all but one of which (Minne-

sota) require or permit a party primary in connection

with its Presidential selection process in 1976. Every

state has chosen to select its Presidential electors by

popular election. See, McPherson v. Blacker, supra. Eigh-

teen states and the District of Columbia mandate pri-

mary elections for the selection of delegates to national

conventions. Twenty states provide the major parties

with the option of choosing either a primary or con-

vention to select their delegates." The right to vote in

* Developments in the Law—Elections, 88 Harv. L. Rev. 1111,

1153-54 (1975).

21

a direct primary “is protected just as is the right to

vote at the election. . . .” United States v. Classic, 313

U.S. at 318. Participation by voters in the Presidential

election process will be rendered meaningless if the party

is permitted to apportion delegates to its national con-

vention on the basis of standards bearing absolutely no

relationship to the Electoral College apportionment which

determines the weight of their vote in the general

election.

C. Justiciability.

The contradiction between the decision below and the

principles of the reapportionment cases is nowhere more

apparent than in the court’s conclusion with respect to

the justiciability of the issues presented by this case, and

its conclusion that the party’s apportionment of a na-

tional convention will meet the requirements of the Equal

Protection Clause 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.” App. 101-02.

By sanctioning the victory bonus system the decision

below permits unrestrained territorial discrimination

vastly in excess of the disparities reflected in the Elec-

toral College apportionment. As such it is completely

at odds with the theme of equality in this Court’s re-

apportionment decisions, which hold that restrictions on

the right to vote “strike at the heart of representative

government,” and that “the right of sufferage can be

denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting

the free exercise of the franchise.” Reynolds v. Sims,

377 U.S. at 555. This Court has consistently applied the

theme of equality to the selection of Presidential electors

within a single state, holding that there is no invidious

discrimination if the electors “are elected in districts

where each citizen has an equal right to vote... .”

(McPherson v. Blacker, 146 U.S. at 40) and that a state

22

may not structure its nominating petition requirements

for independent candidates for Presidential elector so as

to discriminate against more populous regions of the

state. Moore v. Ogilvie, 394 U.S. 814, 819 (1969). The

vacated division opinion’s analysis is fully consistent with

this root principle of the reapportionment cases. App.

41-55.

The decision below concedes that Gray v. Sanders, is

“clearly the Supreme Court case most closely in point,”

and that there is “no persuasive distinction” between a

primary and nominating convention, at least where the

“convention delegates are bound by primary votes,” or

between “nominations at the state rather than the na-

tional level.” App. 106 n.65. Nevertheless, it purports

to distinguish Gray on the basis that the primary in

Gray involved an election in a one party state and

was mandated by a state statute. Jd. No authority is

cited for these distinctions, and they are inconsistent

with the principles applied by this Court. Even where

the two major parties field candidates, nominating pe-

tition requirements for independent candidates for Presi-

dential elector which discriminate against more populous

regions of a state will be struck down, Moore v. Ogilvie,

and a political party may not engage in racial dis-

crimination in its primary even where the primary

system is not mandated by state statute. Terry v. Adams,

345 U.S. 461 (1953).

Applying a dual standard to raciai and territorial

discrimination (App. 105) results in a clear conflict with

decisions of this Court which have held that territorial

discrimination is no less invidious than racial. Reynolds

v. Sims, 377 U.S. at 566; and see Gray v. Sanders, 372

U.S. at 380. And by making the party’s associational

rights paramount to those of the electorate, the court

below has given the party a license to engage in terri-

torial discrimination which this Court has denied to a

state legislature and even to the majority of a state’s

23

electorate. Reynolds v. Sims, 377 U.S. at 561-63; Lucas

v. Colorado General Assembly, 377 U.S. 713, 736 (1964);

Kramer v. Union Free School District, 395 U.S. 621,

627 (1969).

The decision below seems to equate the “manageable

standard” test of justiciability with the need to impose

strict equality on some one man, one vote standard.

App. 83-84. It is obvious that the rigor of the rules

established for congressional and state districting is

wholly inappropriate here, where the fairness of an ap-

portionment cannot be tested by adherence to any single

standard. It is equally obvious that, subject to the ad-

dition of two votes for each state’s Senators, the Elec-

toral College assures the electorate of each state a pro-

portionate voice in the general election; that the greater

importance of the smaller states is measurable; and that

a court would have no difficulty in making the determina-

tion that the victory bonus system, or other standards

which are completely at odds with the modified propor-

tionality reflected in the Electoral College, results, follow-

ing this Court’s formulation on justiciability in Baker v.

Carr, in “a discrimination [that] reflects no policy, but

simply arbitrary and capricious action.” 369 U.S. at

226.

D. The Merits.

Having in effect relieved itself from the need to apply

any standard, the court below merely considered whether

the victory bonus system “rationally advance[s] some

legitimate interest of the party in winning elections or

otherwise achieving its political goals.” App. 101-02.

The justifications given for finding such rationality are

contradicted by both reason and history.

The court below states that the victory bonus system

“has the effect of making delegate apportionment more

reflective of party strength than it would be if based on

electoral college vote alone.” App. 92 n.42. The District

Court had no difficulty ruling, and did so twice, that

24

uniform victory bonuses which increase the basic delega-

tion of any of the least populous states by 100%, but

increase California’s delegation by only 6.7%, are not a

rational means of promoting party strength. App. 12.

Nor is the proportional victory bonus, which increases the

basic delegation of qualifying states by 20%, reflective

of party strength because there is no correlation between

the bonus and the percentage vote by which party can-

didates win or lose, and no correlation between victory

in one election and the next. The most superficial ex-

amination of recent elections will reveal that there is

simply no substance to the statement that “[a] state

which has gone Republican in the past may do so again.”

App. 103.

Of the 26 states carried by the Republican nominee

in 1960, only one was carried in 1964.° Of the 6 states

carried by the Republican nominee in 1964, only 2 were

carried in 1968. Of the 44 states which were not carried

by the Republican nominee in 1964, only 14 were not

carried in 1968. Of the states which carried for the

Republican nominee in 1968, all did so again in 1972,

but so did all but one of the 18 states which did not

carry for the Republican nominee in 1968.

The court below ignores history when it states that

it is unable to conclude that treating states on a uni-

form basis does not rationally serve the cause of cohesive-

ness among the state parties because “it took precisely

such a scheme to bring about the union of the states

themselves.” App. 105. As this Court has made clear,

the issue between the proponents of proportional repre-

sentation and the proponents of uniform treatment of

the states percipitated the most bitter controversy of the

Constitutional Convention, and was resolved only by the

* For the Electoral College vote cast in elections from 1960 to

1968, see NOMINATION AND ELECTION OF THE PRESIDENT AND VICE

PRESIDENT OF THE UNITED STATES 7 (Government Printing Office

1972).

25

Great Compromise which assured representation in pro-

portion to population except in the Senate and the Elec-

toral College, where limited deviations in favor of smaller

states resulted in limited variations from strict propor-

tionality. Wesberry v. Sanders, 376 US. at 10. It is

inconceivable that such limited variations from strict

proportionality can be equated with uniform treatment

of the states. Nor is it relevant that the Twelfth Amend-

ment awards each state an equal vote, because its pro-

cedures come into play only in the event of a deadlock

in the Electoral College.

The enormity of the error in sanctioning any appor-

tionment purporting to serve the Party’s interests is

apparent in the disproportionate allocation of delegates

to the District of Columbia. By failing to address the

reasons set forth in the record for that allocation, the

court below has given tacit sanction to the justifications

advanced by the Party for the disproportionate allocation,

which include the “special burdens imposed by virtue of

being a protest site...” and “large financial contribu-

tions to the Party.” Joint Appendix 292a. If such rea-

sons justify malapportionment for one jurisdiction, noth-

ing would prevent their use by the Party for the nation

at large, with consequences which would be destructive

of liberty and order in this nation.

IV. Even if the timing forecloses relief for the 1976 Con-

vention, the continuing controversy makes declaratory

and injunctive relief essential.

From the inception of this case in 1971 Ripon has

sought declaratory and injunctive relief with respect

to the use of the victory bonus system in the 1976

Formula. If that formula had been finally adjudicated

unconstitutional before October 31, 1975, the Republican

National Committee would have had authority, under

the rules adopted by the 1972 Convention, to effect its

revision. Rule 30, Section A.8, App. 4-5 n.8. Once the

26

call to the 1976 Convention is issued, now scheduled for

year-end 1975, it will not be possible to alter the num-

ber of delegates from each state. Relief for the 1976

Convention will be foreclosed unless, following remand,

the District Court were disposed to impose a system

of weighted voting, as the Second Circuit did in Seergy

v. Kings County Republican County Committee, supra.

There is, nevertheless, an urgent need for declaratory

and injunctive relief with respect to the party’s victory

bonus system. This case represents a continuing con-

troversy which is “ ‘capable of repetition, yet evading

review.’” Storer v. Brown, 415 U.S. 724, 737 n.8 (1974)

(and cases cited). For more than 40 years each Re

publican National Convention has adopted a delegate

apportionment formula for the next convention which

included a victory bonus system. The 1976 Convention

is likely to do so for 1980. Since the primary responsi-

bility for reapportionment lies with the malapportioned

body, declaratory and injunctive relief with respect to

the victory bonus system during the current Term is

necessary to ensure that the 1976 Convention will have

an opportunity to adopt a formula for the 1980 Con-

ver.tion which is consistent with the decision of th‘s

Court.

27

CONCLUSION

The decision below rejects the root principles of the

reapportionment cases and leaves the law on delegate

apportionment in utter confusion. The result makes a

mockery of representative government.

For the reasons stated in the vacated division opinion

by Chief Judge Bazelon and summarized here, Ripon

respectfully requests that the Court grant this petition

for certiorari.

Respectfully submitted,

ROBERT M. PENNOYER

THOMAS THACHER

PATTERSON, BELKNAP & WEBB

30 Rockefeller Plaza

New York, New York 10020

Counsel for Petitioners

Of Counsel:

GEORGE M. COBURN

WILLIAM J. MULLER