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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 933

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1474%3A1. Public record. Not legal advice.