Opposition — Wymbs v. Republican State Executive Committee of Florida

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FEB 24 3

No. 83-1225

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

Pe fificrnie Ts.

REPUBLICAN STATE EXt IVE COMMITTEE OF FLO

Re sponde vit

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

RESPONDENT'S BRIEF IN|: OPPOSITION

W \MeH GALLEN

Harris WEINSTEIN

Covington & Burling

120] Pennsylvania Avenue N.W.

|}? (). Box Tons

Washington, D.C. 20044

202) HHZ-HOO0

bt NTON L.. By KEI

1550 Madruga Avenue

Coral Gables, Florida 33146

BOD) 662-4090

Afforne iS for Respondent

February 19S4

‘Counsel of Record

QUESTION PRESENTED

A rule of the National Republican Party, which is reflected

at the state level in a rule of the Florida Republican Party,

provides for the selection of three delegates to the Republican

National Convention from each congressional district.

The question presented is whether a suit by members of the

Florida Republican Executive Committee, naming only that

state committee and not the Republican National Committee

as a defendant and asserting that the state party rule results in

a denial of the equal protection of the laws because the number

of registered Republicans varies from one Florida con-

gressional district to another, is justiciable.

il

TABLE OF CONTENTS

Page

QUESTION PMEDENTED «oes cnncisccs scents i

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CCID FRR ia onc dn vcs dcvkenckactuneeeee l

PRIUS oc hk cae rec ced xpdivogbontnaceeee l

‘Tae Pertinent Party Rules .......«.s«<cecccccccas 2

peberry OT Tie ERIE ois 5s 6 ckccondceeeeeee 4

REASONS FOR DENYING THE WRIT ..............-.--0- 6

CONGCELUMIN ( o.cks sv avcdttocdcccwsuecue a iim eagle eee 15

TABLE OF AUTHORITIES

CASES Page

Baker v. Carr, 369 U.S. 186 (1962) ........... 6, 8, 10, 11

Bode v. National Democratic Party, 452 F.2d 1302 (D.C.

CE. Cec ViUl is secede tsescdsiccserseses 12

Burns v. Richardson, 384 U.S. 73 (1966) ............ 10

Chicago & Southern Air Lines, Inc. v. Waterman S.S.

MEO ve scncsdecsvcceccones ll

Cousins v. Wigoda, 419 U.S. 477 (1975) ........ 7, 10, 11

Democratic Party of the United States v. Wisconsin ex

rel. La Follette, 450 U.S. 107 (1981) ..... 4, 6, 7, 9, 11

Gaffney v. Cummings, 412 U.S. 735 (1973) .......... 10

Georgia v. National Democratic Party, 447 F.2d 1271

D.C. Cir.), cert. denied, 404 U.S. 858 (1971) .... 12

Glidden v. Zdanok, 370 U.S. 5380 (1962) ............. ll

Gray v. Sanders, 372 U.S. 368 (1968) ...........05. 11-12

Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792) .......... lu

Trish vy. Democratic-Farmer-Labor Party, 399 F.2d 119

ee ie cS sikacassceecceses 12

Moore v. Ogilvie, 394 U.S. 814 (1969) .............0. ll

O’Brien v. Brown, 409 U.S. 1 (1972) ..........00000: 7, 11

Redfearn v. Delaware Republican State Committee, 524

F.2d 1403 (3d Cir. 1975), aff'g 393 F. Supp. 372 (D.

Del. 1975), cert. granted, 426 U.S. 919, vacated and

remanded, 429 U.S. 809 (1976), 547 F.2d 1163 (3d

Sey PUP MUEOUEIE) coc ccccccccccccccscncs 12-13

Redfearn v. Delaware Republican State Committee, 362

F. Supp. 65 (D. Del. 1973), rev'd, 502 F.2d 1123 (3d

CET eac ad topes snsieecesecsvecacs 12-13

Republican State Central Committee of Arizona v. Ripon

meow, emc., Soe U.S. 1222 (1072) ..... cc ccecces ll

Ripon Soc’y, Inc. v. National Republican Party, 525

F.2d 567 (D.C. Cir. 1975), cert. denied, 424 U.S. 933

PROC CTirdine Sebi shescaagesticvcccsces 12, 14

iv

Table of Authorities Continued

Page

United States v. Jones, 119 U.S. 477 (1886) .......... ll

Wymbs v. Republican State Executive Committee, 658 _

FE CS SUED o.vkcv ss evauniceredcckes 1, 4

W ye v. Re bepublican State Executive Committee, 719 _

Fe BOTS CREE Gs EOD owes ccesayevaaanees passim

CONSTITUTION

United States Constitution

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Rk aT VETTEL oO eee: 5, 10, 18

SS aay ee ae 1, 5, 18, 14

STATUTES AND RULES

Florida Statutes Annotated

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NE EE Sc ac cadehccvocetedasidavenesepiu 3

Federal Rules of Civil Procedure

ME ceux alea Gs aac a dah alia cee Mie reat eo 6, 8

I a Gath c cack reo Socal tore ewiedarn es 7

National Republican Party Rules

kOe Ae ee ane RA EE fbi Nat hr AS, | ae

MEL Ca ps ba-has cedierepavidiawceeeten 3

IS bis 6 vk cwicanu awh oedeansadeaeee erates 2

ULE sv sdennceby eed nias bskGit tera 3

PPE Audis science ndaceaee csMacceLin vane 7

Rules of Procedure, Republican Party of Florida

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MN SEAMED icci-cvcbaccet Keune eckaeebcanaeeeaee 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-1225

NORMAN E. Wymps, et al.,

Petitioners,

Vv.

REPUBLICAN STATE EXECUTIVE COMMITTEE OF FLORIDA,

Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION

OPINIONS BELOW

The original opinion of the district court and its opinion on

remand are not reported. The opinion on remand is reproduced

in the appendix to the petition, pages A15-A39. The first

opinion of the court of appeals is reported at 658 F.2d 524. The

court of appeals’ opinion accompanying the decision of which

review is requested (Pet. App. A40-A84) is reported at 719

F.2d 1072.

STATEMENT

This suit was instituted by three members of the Republican

State Executive Committee of Florida who assert that the

equal protection clause of the Fourteenth Amendment forbids

that committee to select three delegates to the quadrennial

Republican National Convention from each congressional dis-

2

trict in Florida. The Executive Committee is the only defend-

ant named in the complaint. '

The Pertinent Party Rules

Petitioners’ challenge is to Rule 11, § 4(b), of the Florida

Republican Party’s Rules of Procedure (Pet. App. Al0- All).

That state rule, however, merely implements one part of the

rules of the National Republican Party that allocate National

Convention delegates among and within the states and

territories.“ The pertinent rules of the National Republican

Party granted to Florida 51 delegates to the 1980 National

Convention and, because of reapportionment following the

1980 census and Florida's performance in the 1980 election,

grant Florida 82 delegates to the 1984 convention. Of the

respective totals, 45 were selected in 1980 and 57 will be

selected in 1984 under National Party Rule 30.A.2,' which calls

for “three ... district delegates from the district of each

' Petitioners’ complaint also challenged the composition of the Ex-

ecutive Committee itself as a denial of equal protection. They

asserted that, unless reconstituted, the committee could not con-

stitutionally exercise several of its functions, such as adopting rules

for selecting National Convention delegates and filling vacancies on

the ballot for state offices, because its membership consists of two

persons from each county in Florida ahd the counties have differing

numbers of registered Republicans. The court below rejected this

challenge (Pet. App. A71-A84), and the issue is not pressed in the

petition.

“State Party Rule 11 in terms speaks only to the selection of

delegates to the 1980 Republican National Convention. Since the

ruling below, the respondent Executive Committee has adopted a

rule for the 1984 National Convention consonant with the National

Party's rules and therefore in the same pattern as Rule 11.

‘ National Party Rule 30 traces back to a rule adopted at the 1972

Republican National Convention and reenacted at the 1976 and 1980

conventions.

3

Representative in the United States House of Representa-

tives.” (Pet. App. A85.)*

The rules of the National Republican Party allow the selec-

tion of National Convention delegates by primary election, by

district or state convention, or by the Republican state com-

mittee. By its rules, the Florida Republican State Executive

Committee has chosen to follow the results of the Florida

preference primary provided for by state law, Fla. Stat. Ann.

§ 103.101 (Pet. App. Al-A6), in selecting its National Conven-

tion delegates. Rule 11, $$ 1, 2 (Pet. App. A10). Only reg-

istered Republicans can vote on the Republican side of the

Florida primary, only registered Democrats on the Democrat-

ic side. Fla. Stat. Ann. § 101.021.

The state party’s rules award the at-large delegates to the

“Republican presidential candidate receiving the higher or

highest number of statewide votes” in the primary. Rule 11,

§ 2 (Pet. App. Al0). The delegates from each congressional

district are awarded to the presidential candidate receiving the

most primary votes in that district. /d. The people who serve

as delegates are selected after the primary, in part from lists

provided to by the presidential candidates’ organizations. /d.

§ 3 (Pet. App. Al0-A11). The at-large delegates are selected

by the full State Executive Committee, and the congressional

district delegates are “elected by a majority vote of the total

respective state committeemen, state committeewomen and

county chairmen representing any county in each con-

gressional district ... .” Jd. § 4(b) (Pet. App. All).

‘Florida had 15 congressional districts in 1980 and now has 19.

There were in addition in 1980 six at-large delegates under National

Party Rule 30.A.1 (Pet. App. A&5), and there are for the 1984 con-

vention those six and nineteen bonus delegates that result from the

success of the Republican ticket in Florida in the 1980 election,

National Party Rule 30.A.4 (id. at A&5-AS6).

4

History Of The Litigation

This case was instituted in January 1980. The theory of the

complaint was that, because the number of registered Republi-

cans varies from one congressional district to another, the

plaintiffs, residents of one of the districts with a larger than

average Republican registration, were denied the equal

protection of the laws in the selection of National Convention

delegates. No state official who administers the state election

law was named a defendant. Nor was the Republican National

Committee. The State Executive Committee was alleged to be

engaging in state action in promulgating Rule 11 and selecting

convention delegates according to the preferential primary

returns.

On July 1, 1980, the district court granted petitioners’ mo-

tion for summary judgment. The court held that the Four-

teenth Amendment imposes a “one-Republican, one-vote” rule

in allocating convention delegates within a state on the basis of

a presidential preference primary and therefore forbids the

state party to follow the national party rule by selecting three

delegates from each congressional district. The court sus-

pended the operation of its injunction until after the 1980

Republican National Convention. The Court of Appeals for the

Fifth Circuit vacated that judgment and remanded the case for

reconsideration in the light of this Court’s intervening ruling in

Democratic Party of the United States v. Wisconsin ex rel. La

Follette, 450 U.S. 107 (1981), that “{a] political party’s choice

among the various ways of determining the makeup of a state's

delegation to the party's national convention is protected by

the Constitution.” Wymbs v. Republican State Executive

Committee of Florida, 658 F .2d 324, 325 (5th Cir. 1981), quot-

ing from La Follette, 450 U.S. at 124.

On remand, the district court again held the Florida Repub-

lican Party rule unconstitutional. (Pet. App. Al5-A17, Al8-

A39.) On appeal, the United States Court of Appeals for the

Eleventh Circuit reversed and instructed the district court to

dismiss the complaint.

0

In the district court and on appeal the respondent Executive

Committee raised a number of defenses: that it was not the

state for purposes of the Fourteenth Amendment; indeed that,

as a private political association, it was entitled by the First

Amendment to order and manage its affairs without state or

other governmental interference; and that, in any event, there

could not possibly be any equal protection violation in the

selection of equal numbers of National Convention delegates

from districts required by Constitution and statute to be as

nearly equal in population as humanly possible.

The court of appeals found it unnecessary to consider these

contentions, except insofar as a politic’ party’s First Amend-

ment freedom from governmental interference entered into its

decision that there was no justiciable controversy. In a thor-

ough and thoughtful opinion the court ruled that plaintiffs were

debarred at the threshold. In presenting to the court an in-

ternal political party dispute, they had presented it with a case

that was not suitable for adjudication. For one thing, the

plaintiffs had not joined the Republican National Committee as

a party, which meant that the district court’s decree would not

“provide the plaintiffs effective relief.” (Pet. App. A58.) The

plaintiffs had attacked only the state rule providing for three

delegates from each congressional district, but, the court said,

“(t}hat rule does not control what Florida delegates are admit-

ted to the convention. . . .” (/d. at A71.) The court went on:

“The National Rules control this issue, but [plaintiffs]

failed to sue the Republican National Committee, thus

denying the court the power to afford (them) effective

relief. Besides this potentially fatal — problem, the

ear first amendment associational freedoms possessed

by political parties limited the district court's ability to tell

the Republican Party how to conduct its internal affairs

and whom it should represent. Finally, enforcement of a

one Republican, one vote rule would pose insurmountable

practical and legal problems for the district court.” (/d.)

6

REASONS FOR DENYING THE WRIT

The decision below turns in substantial part on petitioners’

failure to sue the right people and attack the right rule. To that

extent it plainly presents no question of general importance.

So far as the court’s other reasons for finding petitioners’

complaint nonjusticiable are concerned, they are in full accord

with doctrines established by pertinent decisions of this Court.

The court’s decision does not conflict with any decision of any

other court of appeals.

The court of appeals routinely and correctly applied the

provisions of Rule 19 of the Federal Rules of Civil Procedure in

finding that the Republican National Committee was a neces-

sary party not joined. That “potentially fatal joinder problem”

combined with First Amendment associational freedoms of a

political party emphasized by this Court in Democratic Party

of the United States v. Wisconsin ex rel. La Follette, 450 U.S.

107 (1981), and the problems of fashioning an effective decree

to make plaintiffs’ case unfit for adjudication by ah Article III

court. There is nothing in the analysis of the justiciability issue

by the court below, applying standards this Court enunciated

in Baker v. Carr, 369 U.S. 186 (1962), to warrant further

review by this Court.

Moreover, the very great likelihood is that the justiciability

issue would not be reached by this Court or would not in any

event be determinative of the ultimate outcome of the lawsuit,

because respondent’s contentions on the merits of petitioners’

equal protection claim would be accepted either here as alter-

native grounds for sustaining the court of appeals’ judgment or

on remand by that court.

1. Petitioners’ position in this Court is premised, as it was

below, on the mistaken view that “Florida law authorizes the

[Florida] Republican State Executive Committee to adopt

rules” governing the selection of delegates to the Republican

Nationa! Convention. (Pet. 2.) The State of Florida neither

authorizes Florida Republicans to send delegates to the

quadrennial convention of the National Republican Party nor

establishes the number of delegates Florida Republicans may

send or how those delegates are to be selected. These matters

are governed by the rules of the National Republican Party, as

adopted by the 1980 National Republican Convention, specifi-

cally Rules,30 and 31. (Pet. App. A&85-A89.) These rules re-

quire that there be three delegates “from” each congressiona!

district throughout the United States. (See id. at A52-A54.)

Florida Republicans may send delegates to the Republican

National Convention only to the extent that the mules for the

convention authorize them to do so and may select their dele-

gates only in accordance with those rules. That point is settled

by decisions of this Court, three of them, all handed down

within the last 12 years: Democratic Party of the United States

v. Wisconsin er rel. La Follette, 450 U.S. 107 (1981): Cousins

v. Wigoda, 419 U.S. 477 (1975); and O'Brien v. Brown, 409

U.S. 1 (1972). The authority for the Florida Republican Party

rules is National Rules 30 and 31, not any provision of Florida

law.

2. Because the Republican National Convention is the

arbiter of compliance with its rules, no court could grant effec-

tive relief in this case, even if petitioners had a right to the

constitutional ruling they seek. The respondent State Execu-

tive Committee is the only defendant in this case, and no effort

was ever made to name another. Because the Republican Na-

' tional Committee is the sole representative of the national

party between conventions, only an order directed against the

national committee could affect the determination of who is

authorized to be seated as a convention delegate. For this

reason the court of appeals was incontestably correct in ruling

that the district “court's injunction will have no effect on the

National Convention.” (Pet. App. A58.) Rule 1%a) of the

Federal Rules of Civil Procedure requires the presence as a

party of any person in whose “absence complete relief cannot

be accorded among those already parties... .” It accordingly

follows, as the court of appeals ruled, that petitioners’ failure

to sue the Republican National Committee denies the federal

courts the power to “provide. . . effective relief” in this case.

(Pet. App. A58.)

8

The petition scarcely acknowledges the role that this pro-

cedural defect in petitioners’ case played in the decision below.

Petitioners indicate that they would be content with a judg-

ment affecting only the Florida delegate selection process

without regard to whether the delegates selected were seated

at the convention. (Pet. 8-9.) But the court of appeals was

clearly right that such a judgment “would be, at best, of trifling

effect.” (Pet. App. A69.) It would not relieve petitioners’ “real

complaint.” (/d.) Petitioners’ professed willingness to accept

an empty judgment does not cure the Rule 19 problem or the

related Article III problem of the inability of a court in this case

to enter a binding judgment (pp. 10-11, infra).

The routine application of Rule 19 by the court of appeals

obviously presents no issue worthy of review by this Court.

3. To be sure, the court below did not pursue the “poten-

tially fatal joinder problem” (Pet. App. A71) to its ultimate

resolution because other factors combined with it to make

petitioners’ case unfit for judicial disposition. (/d. at A58, A71.)

Those other factors are solidly grounded in decisions of this

Court and fit within the criteria set forth in Baker v. Carr, 369

U.S. 186, 217 (1962), that the court invoked in its treatment of

justiciability: it found that petitioners sought “an initial policy

determination of a kind clearly for nonjudicial discretion,” and

that there were no “judicially discoverable and manageable

standards for resolving” their complaint. (Pet. App. A61-A62.)

Because the analysis by the court below is so solidly

grounded in this Court’s decisions, there is no warrant for

further review by this Court even apart from the presence of

the plainly noncertworthy joinder issue.

a. The court concluded from its analysis that “to provide

the relief (plaintiffs have] requésted would require this Court

to engage in political party policy making beyond its role in

society and beyond our ken as article III judges” (Pet. App.

A62), and that the controversy that the dissident Florida Re-

publican plaintiffs took to court and away from their party’s

own open forums “is a disagreement over a pure question of

9

internal Republican Party policy” (id. at A63-A64). The court

noted in support of its conclusion the words uttered by this

Court concerning a similar controversy over the manner of

choosing National Convention delegates just a few terms ago.

The Court said then that “it is not for the courts to mediate the

merits of this dispute. . . . [A] court may not constitutionally

substitute its own judgment for that of the Party.” Democratic

Party of the United States v. Wisconsin ex rel. La Follette, 450

U.S. 107, 123-24 (1981).

Clearly petitioners do ask for the substitution of a court’s

judgment for a judgment made by their party on a matter of

great political moment—how the party’s constituency is to be

defined. The resolution of that question requires a policy

determination that is solely for party members and not for

judges: how best can the Republican Party further its goals

and protect its interests. Those goals and interests are many in

number, sometimes contradictory, and all politically sensitive.

Although petitioners assert that delegates to the Republican

National Convention “represent no constituency other than

registered Republicans” (Pet. 8), their party has made a differ-

ent judgment. The Republican Party, a minority party within

the country and in Florida, has determined that it can best

select a presidential nominee by having at its national conven-

tions a solid core of delegates whose homes are spread evenly

throughout the national population, three to each con-

gressional district. This, the national party has concluded, is

one of the means of enlarging the chance that the candidate the

delegates nominate will win in a vote of a national population

among whom Republicans are in the mi: rity. Even if this

policy had not succeeded, as it has in five of the last eight

presidential elections, it would not be for the courts to second-

guess it.

Furthermore, the court of appeals said, even if it had the

general competence to “define the constituency of the Florida

Republican Party and decide how that constituency could best

be represented at the National Convention, we would be con-

strained by the Party’s countervailing First Amendment

rights of free speech and association.” (Pet. App. A67.)

10

The La Follette decision, quoted just above, sustained the

freedom of the Democratic Party under the First Amendment

to reject a slate of delegates chosen in accordance with a state’s

primary election law. The “strong and time honored rights of

free speech and association” (Pet. App. A67) of politica! parties

are as proof against judicial interference as they are against

the legislative interference threatened in La Follette. In

Cousins v. Wigoda, 419 U.S. 477, 487 (1975), this Court said

that a political party and its members “enjoy a constitutionally

protected right of political association,” and that “ ‘any in-

terference with the freedom of a party is simultaneously an

interference with the freedom of its adherents.’ ”

b. Petitioners’ case also lacks the “judicially discoverable

and manageable standards to resolve the controversy pre-

sented” that Baker v. Carr demands. Even if a court could

authoritatively define the constituency of a Republican Na-

tional Convention delegate and did so in accordance with peti-

tioners’ proposal—“all registered Republicans”—there would

still be a “lack of judicially discoverable and manageable stand-

ards for” deciding how to ensure representation of that con-

stituency. This Court has found that apportionment based

even on total voter registration is suspect, in part because of

the possibility of fortuitous fluctuations in the number of reg-

istered voters. Burns v. Richardson, 384 U.S. 73, 93 (1966):

see also Gaffney v. Cummings, 412 U.S. 735, 746-48 (1973).

Party registration, accurately described by the Court below as

“very fluid” (Pet. App. A70, n.36), provides an even less secure

base for apportionment. Moreover, its use would pose practical

problems of constructing districts that would, in the court's

considered view, prevent a court from giving effect to petition-

ers’ “delegate selection scheme.” (Pet. App. A70.)

In addition, the court below held, under the rubric of the

judicial standards criterion of Baker v. Carr, that there is no

way for an Article III court “to resolve the controversy” that

petitioners tried to present, i.e., no means of fashioning “an

effective remedy.” (Pet. App. A68.) The Republican National

Convention, not the authorities of Florida (and not a federal

1]

court), decides what delegates from Florida are to be seated by

the Convention. Therefore, any judgment entered on petition-

ers’ complaint would not bind the parties sought to. be affected

and would amount to an advisory opinion, in derogation of “the

firm and unvarying practice of Constitutional Courts to render

no judgments not binding and conclusive on the parties,” Chi-

cago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333

U.S. 103, 113-14 (1948). (Pet. App. A68-69.)

4. There is no inconsistency between the decision below,

applying as we have just seen the recognized criteria of Baker

v. Carr, and any other decision of this Court. The Court has

consistently expressed its doubts that internal party disputes

such as this one are justiciable. O’Brien v. Brown, 409 U.S. 1, 4

(1972); Cousins v. Wigoda, 419 U.S. 477, 483 n.4 (1975); see

also Republican State Central Committee of Arizona v. Ripon

Soc’y, Inc., 409 U.S. 1222 (1972) (Rehnquist, J., in chambers).

Most recently, in La Follette, the Court while deciding the case

on First Amendment grounds used language of justiciability in

sustaining a political party’s freedom from legislative or judi-

cial interference. (P. 9, supra.)

Of course, this Court sits to adjudicate the claims of political

parties and their adherents that they have been denied access

to the ballot, as in Moore v. Ogilvie, 394 U.S. 814 (1969), with

which petitioners erroneously suggest an inconsistency (Pet.

6), and claims of disfranchisement or dilution or distortion of

votes in the election of public officials, as in Gray v. Sanders,

372 U.S. 368 (1968), on which petitioners rely heavily. There is

no such denial of access to the ballot or disfranchisement or its

equivalent here. Of Gray v. Sanders—invalidating the use by

Georgia of the infamous county unit system to determine the

winner in a statewide Democratic primary that at that time

was conclusive of the general election—it is enough to say that

* See also Glidden Co. v. Zdanok, 370 U.S. 530, 569 (1962): United

States v. Jones, 119 U.S. 477, 478 (1886); Hayburn’s Case, 2 U.S. (2

Dall.) 408 (1792).

12

the Court disclaimed reaching “the questions that would be

presented” if a state nominating convention rather than a

primary election were being used to select candidates for

Statewide office. 372 U.S. at 378, n.10.

Similarly, there is no conflict between the decision below and

the decision of any other court of appeals. Indeed, the decision

below comports precisely with the ruling of the Court of

Appeals for the Eighth Circuit in Jrish v. Democratic-Farmer-

Labor Party, 399 F.2d 119, 121 (8th Cir. 1968), that an action

complaining of malapportionment in the selection of delegates

to the Democratic National Convention was nonjusticiable.

Panels of the Court of Appeals for the District of Columbia

Circuit some years ago entertained national party delegate

disputes as justiciable,” but when such a dispute later came

before the court en bane, it expressly reserved the question of

justiciability thought to be resolved by the earlier panel deci-

sions. The court said that the question was “of obvious difficul-

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

967, 577 (D.C. Cir. 1975), cert. denied, 424 U.S. 933 (1976).

Several judges expressed the view that the case was not jus-

ticiable. Jd. at 592-95 (Danaher, J.): 602-04 (Tamm, J.); 609-12

(Wilkey, J.).

As for Redfearn v. Delaware Republican State Comm ittee,

524 F.2d 1403 (3d Cir. 1975), with which petitioners claim a

conflict (Pet. 6-7), the cited decision is a notation of affirmance

without opinion of the judgment of a district court that did

entertain and decide a delegate apportionment dispute.* The

"Bode v. National Democratic Party, 452 F.2d 1302 (D.C. Cir.

1971), cert. denied, 404 U.S. 1019 (1972): Georgia v. National Demo-

cratic Party, 447 F.2d 1271 (D.C. Cir.), cert. denied. 404 U.S. 588

(1971).

*The district-court judgment affirmed at 524 F.2d 1403 is not

Redfearn v. Delaware State Republican Committee, 362 F. Supp. 65

(D. Del. 1973), as indicated in the petition (p. 6, n.18), but Redfearn

v. Delaware State Republican State Committee. 393 F. Supp. 372

(D. Del. 1975), a decision on remand following reversal, 502 F.2d 1123

(3d Cir. 1974), of the first-reported district-court decision.

13

court of appeals’ decision was vacated by this Court, after

certiorari had been granted, 426 U.S. 919, for further consider-

ation in the light of intervening legislation. 429 U.S. 809

(1976).°

5. Ifthe issue of the justiciability of internal political party

disputes over convention delegates, their selection and seating

has not been squarely decided by this Court, it is only because

in every case the decision on the merits has been in favor of the

freedom of the party from judicial interference. And so it

would be here if the issues on the merits were presented to this

Court on certiorari as alternative reasons for affirmance or to

the court of appeals on remand.

a. Petitioners, who neglected to sue any state electoral

official or agency, cast the Florida Republican Party in the

unlikely role of the State of Florida, subject to constitutional

restraints applicable only to the states and other governmental

entities. The casting is unlikely because under the Constitu-

tion, as this Court has construed the First Amendment, the

State of Florida must stay at arm’s length or even farther from

the affairs of the Republican Party; and because the Florida

Republican Party is not responsible for running Florida's pri-

mary election or making the rules for it. The party has simply

chosen to use the results of the election, governed by state law,

as the basis for its selection of convention delegates.

b. If the Florida Republican Party were treated as the

state and if the equal protection clause were applied in its full

rigor to the party’s selection of convention delegates, there

would be no doubt that the use of equally populated con-

gressional districts as the basis for delegate selection satisfies

all the demands of equal protection. Some of the reasons why

*The final entry in the log of the case is the court of appeals’

vacation, without opinion, of the district court’s judgment and re-

mand to that court in accordance with this Court's direction. 547 F.2d

1163 (3d Cir. 1976).

l4

overall population and not party registration might rationally

be chosen as the criterion for allocating and selectirg delegates

have been mentioned in the discussion of justiciability. (Pp.

. supra.) They and others were discussed in the thoughtful

opinion of Judge McGowan for the en bane court in Ripon

Soe’y, LIne. v. National Republican Party, 525 F.2d 567 (D.C.

Cir. 1975), cert. denied, 424 U.S. 933 (1976). In the Ripon case,

the predecessor to the National Rule 30 that governs here was

sustained against an assertion that, to comply with the equal

protection clause, the Republican Party must allocate its dele-

gates nationwide either on the basis of total population or on

the basis of Republican strength. In rejecting the equal protec-

tion challenge, the court said that “a party's choice, as among

various ways of governing itself, of the one which seems best

calculated to strengthen the party and advance its interests,

deserves the protection of the Constitution as much if not more

than its condemnation.” /d. at 585 (emphasis in original). Some

of the relevant considerations that demonstrated the rational-

ity of the party’s choice not to adhere rigidly to either popula-

tion or manifested Republican strength were summarized by

the court below (Pet. App. A.64, n.28):

“In addition to promoting the party's ideology and

nominating successful candidates, a party's goals may in-

clude ‘rallying of voters . . . not only in an appeal to party

members but to independent voters and even to members

of an opposition party,’ Ripon, 525 F.2d at 593; encourag-

ing the participation of minorities, women and young peo-

ple, id. at 583-84; and according greater weight in party

decision making to ‘professionals,’ id. at 585, or to geo-

graphic segments of the party’s constituency whose per-

formance suggests likely success or, conversely, a need

for retrenchment.”

15

CONCLUSION

No issue is presented that.warrants of review by this Court.

The petition for a writ of certiorari should be denied.

February 1984

Respectfully submitted,

Wituiam HS ALLEN

HARRIS WEINSTEIN

Covington & Burling

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

BENTON L. BECKER

1550 Madruga Avenue

Coral Gables, Florida 33146

(305) 662-4099

Attorneys for Respondent