Appendix — Georgia v. National Democratic Party

Supreme Court brief1971

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APPENDIX A

UNITED STATES DISTRICT COURT.

FOR THE DISTRICT OF COLUMBIA

| NO. 882-70

THE STATE OF GEORGIA, ET -AL., PLAINTIFFS -

THE NATIONAL DEMOCRATIC PARTY, ET AL.,

| __. DEFENDANTS

Decided November 24, 1970

MEMORANDUM AND ORDER’

Plaintiffs in.this action are seeking injunctive relief.

. and a declaration by this Court that the Fourteenth ;

Amendment requires that delegates to the national con-

ventions of the Republican and Democratic political

‘parties be -allocated among: the various states strictly on

‘ the basis of population.» 7

A political party is in its essence based upon the con-

stitutional rights of citizens embraced in the freedoms of

assembly, speech and press which assure that citizens be .

free to organize themselves to engage in political dis-

cussion and activity. See, 29 C.J.S. Elections § 84, Po- —

litical Parties. While it is recognized that, when necessary

to prevent unreasonable abuses, courts are competent

to evolve new doctrines in the realm of the “internal :

affairs” of voluntary associations, it appears that the Pro- .

' cedures adopted by the defendant political parties and

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DRIP eerste ee SSE ST oer ae rere meermene terri onnee ENTREE

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aftacked herein are responsive and reasonable under the

- prevailing circumstances. The allocation — formulae

adopted by the Republican and Democratic national con-

- ventions ate ¢mployed to further their legitimate pur-

poses and are neither arbitrary, capricious nor violative

of any right guaranteed under the Fourteenth Amend-

- ment,

In Powell ve McCormack, 295 U.S. 486 (1969), the

Court stated that justiciability encompasses two impor-

tant considerations: first, the courts must determine

whether the issue’ constitutes a political question and

second, the courts must find that the claim presented

and. the relief sought admit of judicial relief. This Court

finds that the claim in this action does not admit to

judiciad relief as there are no “judicially discoverable

and manageable standards” by which to frame appro-

priate rélief. Maxey et al vy. Washington State Democratic

Committee, et al. (No. 7838, D.C.W.D.Wash., . Octo-

ber 26, 1970), cited b¥ plaintiffs, turned, in material

respects, On a statutory commitment of the State of

Washington to the popular election of delegates to the

national conventions: No such state statute is involved

in the present case.

Accordingly, it is by the Court this 24th day of No-

vember 1970 a

‘ORDERED that plaingifts’ motion for preliminary: in-

junction and summary judgment be and it is hereby

denied, and it is’ further :

ORDERED that defendant Carl L. Shipley’s motion

for summary ‘judgement is treated ‘as a motion to dis-

“miss and it is hereby granted, and it is further

_ ORDERED that the motion of defendanis National

Democratic Party, National’ Democratic Committee,

Channing E. Phillips and Miss Flaxie Pinkett to dis-

miss be and it is hereby granted, and it is further

ORDERED that the motion of defendants Republican

National Committee and Mrs. J. Willard Marriott to dis-

miss be and it is hereby granted, and it is further

ORDERED that the motion of defendant National :

Republican Party to quash services of process be and

it is hereby granted.

/s/ Joun Lewis. SmitH, Ih.

United States District J udge

UNITED STATES COURT OF APPEALS

” NO. 71-1018

THE STATE OF GEORGIA, ET AL., APPELLANTS

a v.

THE NATIONAL DEMOCRATIC PARTY, ET AL.

Appeal from the United States District Court

for the District of Columbia

Decided July 23, 1971

Before McGowan; TAMM and Ross, Circuit Judges.

PER CurIAM: Appellants here urge that the constitu-

tional principles enunciated in the Supreme Court’s re- -

apportionment cases, beginning with Baker v. Carr, 369 .

U.S. 186 (1962) and extending through the cases de-

cided during the October, 1970 Term,’ should be pro

‘Abate v. Mundt, 39 US.L.W. 4663 (June P 1971); Whit-

comb v. Chavis, 39 U.S.L.W.. 4666 (June 7, 1971); Gordon v.

Lance, 39 U.S.L.W. 4719 (June 7, 1971).

~~,

jected by this court into the arena of national party

politics, It is argued that the Court's precedents over the

last decade compel the conclusion that the delegate-allo-

cation formulas, utilized by both of the major national

political parties to determine the quantum of representa-

tion of the various state parties at the 1972 Republican

and Democratic National Conventions, are incompatible

with the Equal Protection Clause of -the Fourteenth

Amendment, Thus it is said- that the, Republican and:

Democratic Conventions must be reapportioned so that -

each delegate will represent a segment of the national

population as nearly equal as is mathematically possible.

Such’ contentions raise, first, difficult: preliminary is-

sues of state action and justiciability bearing upon our

power to adjudicate the merits of the complaint; and,

second, questions respecting the range of legitimate con-

siderations open to political parties in determining the

make-up of their conventions to select Presidential and

Vice Presidential nominees, Resolution of the case be-

‘fore us is possible, however, short of definitive identi-

‘fication and Prescription of such considerations. The —

several reasons for our disposition of the single claim

presently pressed upon us are set out hereinafter. |

Appellants include the State of Georgia, its Secretary

of State, and State Election Board, as well as individual

Georgia residents claiming to represent all similarly

situated registered voters in that State. Appellees are

the National Democratic Party,.the Democratic National

Committee, the Democratic committeeman and commit-

teewoman for the District of Columbia, and the counter-

parts of these entities and individuals on the Republican

side? ;

On March 25, 1970, appellants filed a complaint in .

the District Court secking declaratory and injunctive re-

licf-on the ground that the National Conventions of both -

‘partics are “malapportioned,” and that only a delegate-

allocation formula premised solely on population differ-

ences between the states could be squared.with the Four- .

teenth Amendment. The case was heard on cross-motions

for summary judgment’ and motions to.dismiss filed by

several of the appellees. By Memorandum and Order

dated November-24;1970, the District Court ruled. in

appellees’ favor, holding both that the issue raised was

nonjusticiable and that, on the merits, the’ allocation for-

mulas did not work invidious discriminations contraven-

ing applicable constitutional standards..On appeal to this,

court, in view of the obvious necessity to resolve, as far

as possible, the challenge of the complaint in advance of

“One & the subsidiary issues in this‘case is whether the National

Republican Party was properly named and served as a defendant »

‘in the District Court. Other Republican defendants below filed

* a motion to quash service of process: or to dismiss the complaint

against the “Party” on-two grounds. First, they contend that there

simply is no unincorporated association known as the National

Republican Party, According to their representations, the Re-

publican aggregate ‘is’ composed only of. State Republican

Parties, which act’ in concert during the Convention to conduct

national party business. Between the quadrennial conventions the

national . affairs of the Republican National Convention are -

-handled by the Republican National Committee. Appellants, how-

ever, introduced substantial evidence to the contrary in the form

of the Party’s rules and by-laws, membership solicitation forms

taken from the Party’s magazine, a 1969 Party, Membership Card,

and, among other items, a cancelled check made payable. to. the

Republican Party. We find such evidence persuasive.

Second, the Republican appellees contend that, if the Party did

exist, service upon it was nonetheless improper. Rule 4(d)(3) of

‘delegate selections at the state level in preparation for

the impending 1972. Conventions, we established an ex-

pedited briefing and hearing schedule for the case.

Prior to oral argument, the plaintiffs in another action.

then currently being filed in the District Court, Bode,

et al. v. National Democratic Party, et al., No. 540-7t,

filed a motion to intervene or in the alternative to partici-.

pate as amici curiae. Although the motion to intervene

at this stage was denied, in view of the similarity of sev-

eral issues-taised in both cases we granted the request

~ to participate as amici curiae to the extent of filing a

‘brief. While Bode, like this case, represents a challenge

to an existing delegate-apportionment formula, it differs

in at least two important respects. First, the suit by the

Bode plaintiffs, who are Democratic Party members in

California, New York, Connecticut, and the District of

Columbia, attacks ‘only the constitution of their own .

Party's Convention. Second, the allocation principle

urged by the Bode plaintiffs—characterized throughout

as “one Democrat, one vote”—is substantially different

from appellants’ forniula founded solely upon population.

the Federal Rules of Civil Procedure states that service upon an

unincorporated association may be made by “delivering a copy

of the summons and of the complaint to an officer, or a manag-

ing or general agent” of the association. Service was made here

on an employee of the National Committee at its Washington,

D. C. office; and, while the Committee protests that the employee

was Mot one of its own “officers” or “managing or general agents,”

" it-does not challenge the sufficiency of service on itself. Nor do we

understand the Committee to argue that, if there is a National

Party, the Committee is not its managing or general agent. Based .

upon these two concessions we find both that service on the Party

was properly effected by the unquestioned service on the National

Committee in its agency capacity, and that the trial court erred -

‘m granting the motion to dismiss.. In view of the disposition we

make in this case, error in this respect does not necessitate re-

versal. .

Ja ae

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‘While the State of Georgia case was under submission

_in this court, plaintiffs in Bode obtained a favorable rul- -

ing in the Distri ton June 22, 1971. An appeal

from that decision has now been dockete =

cratic Party defendants, and that appeal is also receiving

expedited handling in this court. That case is not be-

fore us at the present time and we, of course; express

no view as: to its merits. |

ne et ‘s

We are confronted at the outset with the task of decid-

ing whether “state action” within the intendment of the

Fourteenth Amendment can be found in the delegate-

allocation SR challenged here. Such a findi

is a necessary prerequ\site to invoking the Equal Protéc-

tion Clause. While this limiting concept has been defined ©

with increasing liberality in recent years,” the issue is not

without difficulty where, as -here, the activity allegedly

violative of the Cdnstitution has been historically viewed

as a purely private political matter.

Initially, it may be helpful tdplace clearly in context

the level at which state action must be found in this case. . -

_ We are ‘not concerned here with the question of how con- |

vention delegates are chosen by the various states. Our

problem is one’ step. removed. It is: On what basis may

the national political parties determine how many dele- -

gates are to be allotted to each ‘state political. party?

In the Republican Party the delegates to the 1968 Con-

vention participated directly in the decision establishing

3See, e.g., Black, The Supreme Court—Foreword, 81 Harv.

L. REv. 69, 95-100 (1967); Silard, A Constitutional Forecast:

Demise of the “State Action” Limit on the Equal Protection \

Guarantee, 66 CoL_uM. L. REv. 855 (1966); Williams, The |

Twilight of State Action, 41 Texas L. Rev. 347 (1963).

——

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the allocation formula to be applied for the 1972 Conven-

tion, The plan was submitted to, and ‘approved by, the —

Convention. delegates during the Convention, In_ the -

Democratic Party, on the other hand, the responsibility

‘was delegated to the Party's National Committee, A spe-

cial Rules Commission—known as the “O'Hara Commis- _

sion”—was established at the 1968 Convention and di-

rected to study the methods and criteria used by the

Democratic Party in allocating delegates to the states’ —

and to suggest reforms. Upon the completion of its study

a report: was submitted to the National Committee. That

body, ‘after considering the Commission report as well

as the. recommendations of its own Executive Commit- _

tee announced the formula. to be employed in 1972.

With this brief sketch of the Parties’ procedural meth-

ods for creating their apportionment formulas in mind, a)

the thrust of appellants’ primary line of reasoning on the

State action question becomes apparent. The three-step

- analysis is developed in the following manner. First, it

is arguedg the Supreme Court has consistently found

state action in the ‘activities of state political parties in-

sofar as those activities touch upon the machinery where-

by candidates are nominated by the parties to seek elec-

tion to local or national office. This is the clear, force

of the Texas White Primary Cases;* and,:as those cases

and — demonstrate, it makes no difference for pur

‘Both allocation schemes give weight to such factors as’ each.

State’s Electoral C ollege strength, which is partially a-function

Of population, and to prior performance, i.e., the extent to which

any State Party has provided support for the Party’s candidates

in the general elections of the recent: past. Consideration of the

details of these apportionment formulas is not necessary in re- .

solving this preliminary i issue.

¢ 5Nixon v. Condon, 286 U.S. 73° (1932); Smith v.. Allwright, 321

U.S. 649 (1944); Terry v. Adams, 345 U.S. 461 (1953).

ae: » f

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poses: of finding state action that ‘the state party. acts

through a statewide’ party primary, a state party con-

vention, or a state party committee.® © K

_ Second, logic dictates that a state -party’s action in

selegting delegates to its national convention is also in-

vested wish state action since the ‘delegates’ primary

_ function is the nomination of candidates for the nation’s |

ighest offices. While the few courts that have passed

on the precise question—whether ‘the state's’ delegdte- -

selection processes are imbued with. the same quality of

state action found in candidate-nomination processes—

are divided,’ we find ourselves in substantial: agreement

with the conclusion of the District’ Court in Maxey v,

Washington State Democratic Comm., supra note 7, 319

F.Supp. at 678, that the analogy to the candidate-nom-

__ination cases is a close and compelling one:

Finally, if the action of the individual state parties in

sdlecting delegates to participate in the presidential-nom-

"See, €.g., United States v. Classic, 313 US. 299 (1941): (panty:

_ primary); Gray v. Sanders, 372 U.S. 368, 374-75 (1963) (party

‘ primary); Smith v. Allwright, 321 U.S. 649 ( 1944) (state con- -

vention); Nixon v. Condon, 286 U.S. 73 (1932) (state com-

mittee ).. ieee

‘Compare Maxey v. Washington State Democratic Comm., 319

F.Supp. 673 (W.D. Wash. 1970), appeal docketed, No. 71-1051

(9th Cir., Jan. 12, 1971) (state action found), .with Irish v.

Democratic-Farmer-Labor Party, 287 F.Supp. 794, 802-03 (D.

‘Minn.) (state action discussed but resolution found. unnecessary ),

aff'd, 399 F.2d 119 (8th Cir. 1968), and Lynch v. Torquato, 343

F.2d 370 (3d Cir.:1965) (no state action in Party's ‘internal

affairs; €andidate-nomination question left open), and Smith v.

State Exec. Comm., 288 F.Supp. 371, 374 (N.D. Ga. 1968).

(no’state action found). See generally Note, One Man, One Vote

and Selection of Delegates to National Nominating Coriventions,

371 U. Cut. L. Rev. 536, 538-45. (1970); Note, Constitutional

Safeguards in the Selection of Delegates to Presidential Nom-

inating Conventions, 78 YALE L.J. 1228, 1232-35 (1969).

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CANO LY ESPERO POSER PHRASE UUT ER TERT CNY 2

~ 10a

inating process constitutes state action, the collective

activity of all the states’ delegates at the national con-

vention can ‘be no less readily classified as state action.

Since the promulgation of each party's delegate-alloca-

tion formula for the next national convention is, as we

have indicated, cither the direct collective act of the state

parties (Republican procedure) or is the responsibility

of a body designated by the state parties (Democratic

procedure), the precise .national party decisions chal-

lenged in this case were, in reality, the decisions of the .

states acting in concert. Those acts are, therefore, not

immune from constitutional scrutiny."

‘Supreme Court cases also suggest a second, related but

more. generalized, basis for finding state action. The

states are responsible for conducting the general elec-

tions which determine both the selection of State Elec-

tors and, with rare’ exceptions, how. they will vote in the

Electoral College. U.S. Const... art. I, § 2; aprend. XII. °

As is the case with regard to the election of members of

Congress, the major parties’ nomination procedures play —

such an important role ‘in the presidential selection pro-

cess that they can fairly be said to be “integrally related” —

to the subsequent general elections.’ The electorate’s

. choice in the general election is effectively restricted to

.. the nominees of the two parties. By placing the nom-

inees’ names on the ballot, the states, in effect, have

adopted this narrowing process as a necessary adjunct -

of their election procedures. Therefore, every step in the

nominating process—especially the crucial determina-

SFor a discussion of this state action rationale see, Note, Regula-

tion of Political Parties: Vote Dilution in the Presidential Nom-

_ ination Procedure, 54 lowa L. REv. 471, 476-77 (1968).

"See, e.g., United States v. Classic, 313 U.S. 299, 314 (1941);

Terry v. Adams, 345 U.S. 461, 469 (1953); Gray v. Sanders,

372 U.S. 368, 380 (1963).

lla .-. \

tion of how many delegate votes each state party is to

be allotted—is as much a product of state action as if

the states themselves were collectively to conduct such

preliminary conventions.” fe

The Supreme Court decisions:c Sn which this theory

relies, finding state action’ ia Ahe conduct of state pri-

- maries because of the integrat ‘Telationship between pri-

mary and general elections (see note 9 supra, arose in

one-party states where nomination was indeed tanta- -

' mount to election. We are unable to perceive, however, .

how that difference alone gan‘ be said to dilute the per-

tinency of those cases to the situation we now confront.

National Convention. nominating ‘procedures ¢ffectively

restrict the electorate to two choices gather than one.

Mr. Justice Pitney’s commentary on the realities of the |

American political process in his frequently quoted con-

currence in Newberry v. United States, 256 U.S. 232,

285-86 (1921), has lost none of its relevancy over the

last half decade:

. “[I]t seems to me, too ia for discussion that pri-

mary elections and the nominating conventions are

. Closely related to the final elections ... . So

strong with the great majority of. voters are ‘party

_ associations, so potent the party slogan, so effective

the party organization, that the likelihood of a can-

didate succeeding in an election without a party.

nomination is practically negligible: As a result,

every voter comes to the polls.on the day of tHe

general election confined in his choice to those few

candidates who have received party nominations

occ ec AS & practical matter, the ultimate choice of

‘the mass of voters is predetermined when the n nom-

inations have been made.” . ‘

The “integral relation” rationale is ‘discussed in Note, 37 U.

Cut. L. Rev. at 542-44, supra, note 7. re eae > 7s

~ \

12a .

The state action question is not an easy one in view of

the widespread assumption that party delegate-alloca-

tion decisions are matters entirely within the private

domain, Nonetheless, in- the absence of further explica-

tion by the Supreme Court on this point, we incline to

is the conclusion that the National Conventions are not so

divorced from the activities of. the states in conducting ©

: presidential elections as to negate the existence of State

action. ;

Ms ae ocak , |

. Of course, state action is not in itself a sufficient basis

on which to premise the gtant of affirmative relief sought

by appellants. We must stay our hand, as did.the, District ©

Court, unless we are able to conclude that the issues

raised, in addition to satisfying state action require-

ments, are justiciable. Justiciability, in the Context of

this casé,. raises the troublesome question whether judicial

scrutiny of the National Democratic and Republican

Parties’ internal decisionmaking processes—processes -

through which delegate seats to their respective Conven-

tions are apportioned among the state parties—reqitifes

the courts to “enter upon policy determi nations for which -

judicially. manageable standards ate lacking. ” Baker v.

- Carr; 369 U.S. 186, 226 (1962).

- Appellees. urge that no such standards exist: They

claim that judicial ‘intervention in this sensitive area |

would. not only bar the national parties ftom balancing

what they consider to be the multiple legitimate factors

in formulating an appropriate delegate-allocation scheme,

but would also place them in a strait jacket regarding

A ietiaaes

~~ 11We deal here. only with the standards aspect of the justiciability

doctrine since, we apprehend no serious questions .with ‘respect a

> to the political question-separation of powers elements. See Powell

v. McCormack, 395 US. 486, 518-49 (1969).

oS 3 ahs

13a

party representation—a, consequence which would be .

severely inimical to their future vitality. These fears, as

we understand them, read too much into the justiciability

doctrine. Appellees appear to treat as one and the same

the finding that judicially manageable standards do exist,

on the one-hand, and the conclusion, on the other, that

mathematical equality is the sole permissible criterion in

distributing Convention seats among the states. Such is

neither the clear teaching of Baker v. Carr nor the con-

sequence of applying the Equal Protection Clause as

developed in the other reapportionment cases.

Baker v. Carr, on this score, held only that

“[jJudicial standards under the Equal Protection

Clause are well developed and familiar, and it has

been open to the courts since the enactment of the

Fourteenth ‘Amendment to determine, if on the par-

ticular facts they must, that a discrimination re-

- flects no policy, but simply arbitrary and capricious

GOR oe: opie.

Id.’ at 226 (emphasis supplied). The ‘persistent theme

that runs throughout the Supreme Court’s pronounce-

ments is that justiciability is not to be equated with in-.

validation. It is, rather, the absence of ‘constitutionally

permissible justifications for deviations from precise

‘equality that ‘renders. apportionment formulas arbitrary ~

and capricious, and thus offensive to the Fourteenth

Amendment. It is the lack of a rational basis for ‘draw-

ing distinctions between groups of citizens which leads

to judicial imputation of the one man, one vote require-

ment.” :

See e.g., Avery v. Midland County, 390 U.S. 474; 484 (1968)

(“The Equal Protection Clause ‘does not,’ of course, require that

the State never distinguish between citizens, ‘but only that the —

distinctions that are made not be arbitrary or invidious.”); Burns

v. Richardson, 384 U.S. 73 (1966); Gordon v. Lance, 39

U.S.L.W. 4719 (June 7, 1971). .~ |

FARM MP TE GES SS LIME GMT St arte Ae ernment &

l4a

In Gray v. Sanders,.372 U.S. 368. (1963), for in-

stance, it was the absence of any valid relationship be-

tween the unit system as employed in the Electoral Col-

‘lege and the similar utilization of a unit system in county

primaries which compelled the conclusion that the re-

sulting discrimination could only be arbitrary and in-

vidious. Similarly, in Reynolds v. Sims, 377 U.S. 533,

571-77 (1964), the Court found that in developing

standards for state legislative apportionment the analogy

to federal Congressional apportionment was inapposite.

The Court there further concluded that the two alternate

‘schemes proposed to the three-judge District Court by

the Alabama Legislature were “completely lacking in

rationality.” Jd. at 568.

The lesson of these cases was. restated in Swann v.

Adams, 385 U.S. 440, 444 (1967). It was there again

held that deviations from equality of voting power may

be permissible, but only if they reflect legitimate consid-

erations incident to the- effectuation.of some rational —

Boe: This principle was most recently applied in Abate

, Mundt, 39 U.S.L.W. 4663 (June 7, 1971), where a

deviation, from the mathematical norm, .of twelve per-

cent in the plan for election of county supervisors was

approved. The plan found its légitimation in the locality’s

interest. in preserving the integrity of its political sub-

divisions and in the need for “close cooperation betwéen

the county and its constituent towns.” Jd. at 4665.

The principle which renders the questions raised in this

litigation justiciable is that courts are competent to scruti-

nize the allocation schemes promulgated by’ the national

parties in order to determine whether, given the context

of political partisanship out of which such formulas nec-

essarily arise, substantial deviations from equality of

15a

voting power at the Conventions are supported by legiti- -

mate justifications.” We do not underestimate the dif-

ficulty of the task. Neither do we think, however, that in

light of conventional Fourteenth Amiendment analysis,

‘coupled with a full awareness of the important roles

played by voluntary political parties in our system of self-

government, the courts will be left to face that task in a

standardless vacuum.

ee:

Appellants contend that the crucial starting point for

this court in its evaluation of the apportionment schemes |

is to determine whether those schemes are compatible

‘with a population-based one man, one vote test. More

precisely, appellants postulate that, insofar as practicable,

each delegate to his party’s National Convention must

be representative of an equal segment of the national

population and that any deviation from that test must

be fully justified.”

For example, according to their theory, ‘aise the States

of Arizona and West Virginia are of approximately equal

population,"* they must be allowed to send equal numbers -

of voting delegates.to the National Conventions. Under

appellants’ formula each of those two States would send

| 3Consistent with the courts’ long tradition of dite in “scru-

tinizing schemes allegedly conceived or pperated as purposeful de-

vices to further racial discrimination,” any delegate-allocation

such factors as/race, religion, sex, or economic status would de

formula on a constitute invidious discrimination in terms of .

subject to judicial invalidation. See e.g., Whitcomb v. Chavis, ie

39 U.S.L.W. 4666, 4673 (June 7, 1971).

“According to 1970 Census figures ‘submitted ‘by appellants,

Arizona has a population - 1 iis ,482 and West —_— has

1,744,237. |

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16a

26 delegates to the National Democratic Convention.

Each State would also send an undetermined but equal

number of delegates to the Republican Convention. Every —

state would, therefore, have proportionally the same

delegate strength at cach Party's Convention, Long-

standing local disparities in party strength would no

longer be relevant in determining a state party's voice in

its national party: .

Appellants’ thesis is unacceptable, Even assuming a

complete absence of recognizable justifications in the

parties’ present pilécation formulas for deviations from

a rule of equal represehtation—an assumption we make

_ only for purposes of the instant discussion and without

intimating any view whatsoever as to whether such justi-

fications ‘have or have not been shown—the imposition

of a population-based criferion would constitute. a de-

parture, from the equal representation standard under-

lying the reapportionment cases. While population may ~

be an appropriate measuring rod when public, officials

are to be elected and held responsible to the entire citi-

- zenry,"* population alone is an inappropriate test of rep-

resentation in the framework of national politics where.

parties compete for membership.. Although both major

parties are constantly strivinggto garner a greater share of

the voting population’s support, neither has yet been so

‘Successful as to permit it to claim representation of the

entire population. The constituency of each party is sig-

nificantly smaller than the whole of the eligible electorate, -

and varies dramatically from state to state and from -

3See, e.g., Burns v. Richardson, 384 U.S. 73 (1966); Calderon

v. City of Los Angeles, 481 P.2d 489, 93.Cal. Rptr. 361 (

Ct. 1971). | ne sei

ei) 17a

_ election to election, For this reason it has never hereto-

fore been thought that (with rare exceptions in one- ©

party states) any delegate to a National Convention

could fairly claim to speak for all the voters from his

jurisdiction. Quite to the contrary, his constituency, if

he may be said to represent a constituency,’ is com-

, posed only of the voters within his state who are of like -

political persuasion. Indeed, responsible representation |

may réquire that a delegate vote for a candidate as his

party’s nominee whose views are diametrically opposed

to the political persuasion of large segments of the pop-

ulation within the delegate’s home state.

‘The fallacy in appellants’ position lies in their mis-

placed reliance on cases ‘in which local, state, or national

officials were elected to perform governmental functions

on behalf of the entire electorate in a particular locale.”

In the political party context, however, the primary func-

tion performed by: a delegate to a National Convention

. ds to participate in a process leading to the designation ;

‘of a candidate for national: office—a prerogative he ex-

ercises on behalf of only a portion of the total local

population. Appellants’ argument is reminiscent of Mr.

16See Reynolds v. Sims; 377 US. 533, 563 (1964) (legisla.

tive districting scheme which ‘ ‘gives the same. number of rep-

resentatives to unequal numbers of constituents’ offends standards .

of Equal Protection) (emphasis supplied). ,

17]t would seem that Mr. Justice Black’s caveat in Hadley v

Junior College District, 397 U.S. .50,.56 sen bears directly

on this problem:

“It is of course odasible that there might “7 some case in.

_which a State elects certain functionaries whose duties .

SO ee nately affect different groups that a popular

election . ight not be. —— ” (Emphasis supplied).

’

ae E

18a

Chief Justice Warren's dialogue in Reynolds v. Sims,

377 U.S. $33, 562-63 (1964), emphasizing by way of

parody that “[L]egislators represent people, not trees

or acres,” and that overrepresentation and underrepre-

sentation are the products of. a failure to assure that

equal numbers of constituents select equal nunggers of

representatives, It should be too plain to admit of ¥ious

doubt that a population index imposed as the sonPeri-

terion on Democratic Party delegate selections would

lead, on the one hand, to overrepresentation of Demo-

crats residing in states in which. the voters’ are of a

heavily Republican persuasion, Likewise it would lead,

on the other hand, to underrepresentation of Democrats

in the predominantly Democratic states. Such results are

the inescapable consequence of using state population

statistics as the sole basis for allocating Convention seats

among the state parties."

In light of this fatal flaw in appellants’ atiack, and be-

cause of the disproportionate emphasis it has placed on

issues other than whether the, parties’ apportionment

schemes are fair and rational, we deem this case an inap-

" propriate vehicle for further scrutiny of those formulas.

Other suits presently pending” or yet to be brought may

prov ide the occasion -for resolving these matters we find

‘unnecessary to our decision in this case. We do not now

anticipate the results properly to be reached on such

*SSee Goldstein, One. Man, One Vote and the Political Conven-

tion, 40 U. Cin. L. Rev. 1, 29-30 (1971). Insofar as dictum in

- Maxey v. Washington State Democratic Comm., supra note 7,

"intimates that “total population” alone could be consistent with a

requirement of equal representation to a state party convention

in a two-party state, we disagree.

**See text at pages 4, 5, 6 supra. [Pages 6, 7,8 herein} ,

19a.

occasions, since we deal here only with the precise claim

advanced by appellants. By the same token, we do not .

now assert that population may never be an appropriate

factor in party convention delegate-allocation.. We hold ,

‘only that, in addition to our conclusions as to state action a

and justiciability; population alone cannot be the touch-

stone of the one man, one vote rule as that rule i is 8 sought

to be applied in the: case before us. |

The judgment of the District Court is

‘ ; Affirmed.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 71-1018

THE STATE OF GEORGIA, ET AL., >)

APPELLANTS

. _ SEPTEMBER

v. ce _. Term, 1970

: mA ; Civit 882-70.

PARTY, ET AL. :

Appeal from the United States District Court for

Before: McGOWAN, TAMM and ROBB, Circuit

Judges. ; "me

; JUDGMENT

“This cause came on to be heard on the record on

» appeal from the. United States District Court for the

District of Columbia, and was argued by counsel.

20a.

On consideration thereof it is : ordered and adjudged

by this Court that the judgment... |

of the District Court appealed from. in this cause is

hereby affirmed. ie |

Per Curiam

For the: Court: ae

| /s/ NATHAN J . PAULSON

NATHAN SB PAULSON

Clerk

“Dated: July 23, 1971. .

Opinion per curiam. .

Tae

1968 DEMOCRATIC PARTY

APPORTIONMENT FORMULA

Resolved That the distribution of votes, delegates and

alternates from the various States and territories to the .

Democratic National Convention to be held in Chicago

on the twenty-sixth day of August, 1968, be as follows:

(1) Each State shall have three (3) Convention

votes for each of the Electors from that State in the

‘Electoral College. 5 ) ‘

(2) Each State shall. have a popular vote bonne

equal to one Convention vote for each 100,000 popular

votes, or major fraction thereof, cast in that’ State in

- 1964 for Electors who ¢jther voted for the nominees of

' not elected but ran on the ticket of voting for said nom-

inees: Provided, That (i) there shall bea mininfum of

one such bonus vote for each State.

(3) There shall be a victory bonus of ten (10)" Con-

vention votes for each State which cast its Electoral

~ votes for the nominees of the 1964 Democratic National

Convention.

(4) Each member of the Democratic National Com- -

mittee elected by the 1964 Democratic National Con- °

vention or subsequent thereto by the Democratic Na- .

__ tional Committee shall have. one Convention vote, ‘said

vote to be personal and to be — of exercise by any —

alternate. -

(5) Canal Zone, Guam, Puerto Rico. ii the Virgin

— Islands shall have twenty-three (23) Gonvention votes,

inclusive of the votes of members of ‘the Democratic _

_ National Committee, distributed as follows:

NN I cai aie = =

RESIN RAEI NE ema 5.

Puerto Rico -:... pie.

- Virgin. Islands dus Aasdusibuaninmnlaclociaices 5

1968 REPUBLICAN. PARTY 29

APPORTIONMENT FORMULA :

_RULE NO. 30

The membership of the next ——— Colpiibiiads |

shall consist of:

A. Delegates at Large

1. Four Delegates at Large-from each State.

2. Two additional Delegates at Large for each Rep-: -

resentative at Large in Congress from each State.

3. Nine Delegates at Large for the District of Colum-

bia and three additional Delegates at Large for the Dis-

trict of Columbia if it-casts its electoral vote, or a ma-

jority thereof, for the Republican Nominee for Presi-

dent in the last preceding Presidential election.

22a

4. Six additional Delegates at Large from each State

casting its electoral vote, or a majority thereof, for the

Republican Nominee for President in the last preceding

Presidential election, If any State does not cast its elec-

toral vote, or a majority thereof, for the Republican

Nominee in the last preceding Presidential election, but »

at that election or at a subsequent election held prior to

-the next Republican National Convention elects a-Re- —

publican United States Senator or a- Republican Gover-

~ nor then in-such event such State shall be entitled to such

‘additional Delegates at Large.

5. Five Delegates at Large for Puerto Rico and three

Delegates at Large for the Virgin Islands.

B. District Delegates

‘1. One District Delegate from ‘each Congressional

District casting two thousand (2,000) votes or more for

the Republican Nominee for President or for any elector

* pledged to vote for the Republican Nominee for Presi-

ent in the last preceding Presidential election, or for the

Republican Nominee for. Congress in the last preceding

Congressional election.

2. One additional District alee for each Con-

. gressional District casting ten thousand (10,000) votes

or more for the Republican Nominee for President or for —

any elector pledged ‘to vote for the Republican Nominee

> or for the Republican Nominee for Congress in the last

, ‘Preceding Congressional election.

1972 DEMOCRATIC PARTY — -

APPORTIONMENT FORMULA :

BE IT RESOLVED by the Democratic National —

mittee that the distribution of votes, delegates and alter-

TO FR ARTO PUL” Fe hs dt wo tw ve

Pp:

_ natesto. the 1972- Democratic National Convention shall

_ be in accordance with the following:

(1) The total’ number of Conveption votes for the |

delegates to the Convention shall be 3016 as set forth -

in the-compilation included in this resolution and de-

termined as provided in paragraphs (2),°(3) and (5)

(2) Each State and the District of Columbia shall

receive three Convention votes foreach of the Electors

from. that State or the District of Columbia ‘in the Elec- |

toral College. | :

(3) Each State and the District of Columbia shall

receive such additional Convention votes as are de-

" terminéd by distributing 1386 Convention-vetes among

the States and the District-of Columbia based upon the .

relationship between (i) in the case of each State other

. than Alabama, one-third of the numberof votes cast in

“such State in favor of the Presidential and Vice Presi-

“dential nominees of the- Democratic Party in the 1960,

- 1964 and 1968 elections and, in the case of Alabama,

* one-half of the number of such votes cast in the 1960

and 1968 elections, and, in the case of the District of |

Columbia, one-half of the number of such votes cast in

the 1964 and 1968 elections and (ii) one-third of the |

total number of votes cast in all States other than Ala-

bama in favor of the Presidential and Vice Presidential

nominees of the Democratic Party in the 1960, 1964. and

1968 elections plus one and one-half times the total num-

ber of such votes cast in Alabama in the 1960 and 1968

elections and in the District of Columbia’ in the. 1964

and 1968 elections, nia oie

{4) Each State or the District of Columbia that Te-

“24a.

ceives less than 20 Convention votes pursuant to para-. .

graphs’ (2) and (3): héreof may select 20 voting dele-

_ ~-gates to the Convention to cast the total Convention .

- votes réceived by the State pursuant to paragraphs (2) '

and (3) hereof. - | a :

' Islands, shall have 16 Convention votes, distributed as

_ +. follows: eee ! ty

ie Canal Zone «_-:...__L..

. Guam were

Puerto Rico

- Virgin, Islands ,

Canal Zone, Guam and Virgin Islands each may select -

6 voting delegates, and Puerto Rico may select 14 vot-

ing ‘delegates, to:cast the total Convention votes received

by each pursuant to this paragraph (5).

(6) Each State, the District of Columbia, Canal

-. Zone, Guam, Puerto Rico and Virgin Islands, in-accord- .

ance with procedures consistent with the “full, meaning-

. .. ful and timely opportunity” mandate of the 1968 Demo- .

cratic National Convention, shall select during the cal-

endar year 1972 a nomiinee to serve-as national commit-

‘teeman and a nominee to serve as national committee-

woman beginning upon their e6nfirmation by the 1972 .

Democratic National Convention, which nominees shall

serve as voting delegates to the 1972 Democratic Na-

tional Convention and whose votes or fractions thereof

. Shall be counted-as a part of the total number of Conven-

tion votes received pursuant to paragraphs (2), (3) and

. (5) hereof by such State, the District of Columbia,

Canal Zone, Guam, Puerto Rico or Virgin Islands.

eens (7). Bach; State, the District of Columbia, Canal

Wn WwW Ww

Ws fal

Gis ee CNL WS ee ee

25a’

Zone, Guam, Puerto Rico, and Virgin Islands may. se-

' lect a number of alternates equivalent to- the sum of (i)”

one alternate for each of the first 20 Convention votes’ -

received by it pursuant to paragraphs (2), (3) and (5)

hereof, (ii) one alternate for.each two Convention votes

in excess of 20 but less than 101 Convention votes re-

.. ceived by it pursuant to paragraphs (2), (3) and (5)

’ hereof, and (iii) one alternate for each three Conven- -

tion votes in excess of 100 Convention ‘votes received

by it pursuant to paragraphs (2), (3) and (5) hereof.

(8) Any person serving as national committeemap

or national committeewoman of the Democratic Na-

tional Committee as of the time the Convention con-

' venes in 1972, who ‘iis not otherwise serving as a voting

delegate to thé Convention, shall be entitled to serve as

a delegate to the Convention, with full rights and priv-

- lleges of a delegate on matters panmng before the Con-

_ vention,

“

_ 1972 a PARTY

APPORTIONMENT FORMULA

RULE NO. 30

The membership of the next National Convention ,

shall consist of::

A. DELEGATES AT LARGE

1. Four (4) Delegates at Large. —_ each of the

fifty (50) States. ’

2. Two (2) additional pinned at an for each

Representative at Large in Congress from each State:

“3. Nine (9) Delegates at Large for the District of

Columbia and three. (3) additional Delegates at Large a

i. ee a a a ae

26a

for the District of Columbia if it casts its electoral, vote,

or a majority thereof; for the Republican Nominee for __

President in the last preceding Presidentiatf election.

4. Six (6) additional Delegates at Large from each

- State casting its electoral vote, or a majority thereof,

for the Republican nominee for President in the last

preceding Presidential election. If any State does not

Cast its electoral vote or a majority thereof for the Re-

publican nominee in the last-preceding Presidential elec-

tion, but at that election or at a subsequent election held

prior to the next Republican National Convention elects

a Republican United States Senator or a Republican’

Governor or a Republican majerity of the State’s mem-

bership in the United States House of Representatives

- then in such event such State shall be entitled to such

additional Delegates at Large.

5. Five (5) Delegates at Large for Puerto Rico, and

three (3) Delegates at Large for the Virgin Islands, and

three (3) ee at we for Guam.

B. DISTRICT DELEGATES |

‘1. One (1) District Delegate from each Congres-

sional District casting four thousand (4,000) votes or

more for the. Republican — nominee for President or for

any elector pledged to vote for the.Republican nominee

for President in the last preceding Presidential election,

or for the Republican nominee for Congress in the last

preceding Congressional election.

2. One (1) additional District Delegate for each

‘Congressional District casting twelve thousapd five hun-

dred (12,500) votes ar more for the Republican nom-

27a |

inee for President or for any elector pledged to vote for

the Republican nominee for President in the last pre-

ceding Presidential election, or for the Republican nom-

inee for Congress in the last preceding Congressional

election. .

C. ALTERNATE DELEGATES

One (1) Alternate Delegate to each Delegate to the

National Convention. |

ra)

CERTIFICATE OF SERVICE

I,-Harold N. Hill, Jr., Executive Assistant Attorney

General of the State of Georgia, attorney for Petitioners

herein, and a member of the Bar. of the Supreme Court °

day GETS: price? ,'1971, I served the within °

and foregoing Petition foi a Writ of Certiorari. to the

United States Court of Appeals for the District of Colum-

bia Circuit upon the Respondents, by mailing true cop-

ies thereof in duly addressed envelopes with first class

postage prepaid to their counsel of record, as follows:

Joseph A. Califano, Jr., Esquire, Williams, Connolly

& Califano, 839 17th Street, N.W., Washington, D..C.

20006, attorney for the National Democratic Party, the

Democratic National Committee, Channing E. Phillips

and Miss Flaxie Pinkett;

Fred C. Scribner, Jr., Esquire, Pierce, Atwood, Scrib- |

ner, Allen & McKusick, 465 Congress Street, Portland,

Maine 04111, attorney for the National RepuUlican

Party, the’ Republican National Committee, and Mrs.

J. Willard Marriott; a

_ Shipley, Akerman, Pickett, Stein & Kaps, 1108 Na-.

“ tional Press Building, Washington, D.C. 20004, attor-, ;

neys for Carl L. Shipley, Esquire.

I further certify that all parties required to be served

‘have been served, with the required number of:-copies.

’ . HAROLD N. HILL, Jr.

Executive Assistant

Attorney General

Of Counsel for Petitioners

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