Ripon Society v. National Republican Party

• Decision Date: 05 March 1975
• Docket Number: 74--1358,Nos. 74--1337,s. 74--1337
• Citation: 525 F.2d 548,173 U.S.App.D.C. 331
• Parties: The RIPON SOCIETY, INC., et al., Appellants, v. NATIONAL REPUBLICAN PARTY et al. The RIPON SOCIETY, INC., et al. v. NATIONAL REPUBLICAN PARTY et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 548

525 F.2d 548

173 U.S.App.D.C. 331

The RIPON SOCIETY, INC., et al., Appellants, v. NATIONAL REPUBLICAN PARTY et al.

The RIPON SOCIETY, INC., et al. v. NATIONAL REPUBLICAN PARTY et al., Appellants.

Nos. 74--1337, 74--1358.

United States Court of Appeals District of Columbia Circuit.

Decided March 5, 1975.

As Amended April 28, 1975.

Robert M. Pennoyer, New York City, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court with whom George M. Coburn, Washington, D.C., was on the brief, for appellants, in No. 74--1337 and appellees in No. 74--1358.

William C. Cramer and Benton L. Becker, Washington, D.C., with whom Harry S. Dent, Washington, D.C., was on the brief for appellants in No. 74--1358 and appellees in No. 74--1337.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and WILLIAM WAYNE JUSTICE, ^* United States District Judge for the Eastern District of Texas.

Opinion for the Court filed by Chief Judge BAZELON.

Dissenting opinion filed by Senior Circuit Judge DANAHER.

BAZELON, Chief Judge:

The Ripon Society is a research and policy organization composed of young business, professional, and academic people who are associated with the National Republican Party. The Ripon Society and nine individual plaintiffs who are registered Republican voters in seven states and the District of Columbia challenge the formula for apportionment of delegates to the 1976 Republican National Convention. This challenge is directed against the National Republican Party and the Republican National Committee. This action was originally filed prior to the 1972 convention and resulted in an order of the District Court granting relief in part to plaintiffs and denying relief in part. The plaintiffs and defendants both appealed with defendants requesting a stay of the District Court order until after the 1972 Republican Convention. This Court denied a stay but Justice Rehnquist granted that relief. After the election, both parties moved to dismiss the appeal and it was so ordered. The plaintiffs then filed a second complaint challenging the formula for apportionment of delegates to the 1976 convention. The District Court again granted relief in part and denied relief in part. Both parties now appeal from that order. ¹

The challenged apportionment formula is set out in Rule 30 adopted by the 1972 Republican National Convention. The District Court summary of this formula is reproduced in the margin. ² The focus of plaintiffs' concern are the 607 delegates, representing 27% of the total of approximately 2,242 delegates to the 1976 Convention, ³ which are apportioned on the basis of a Republican victory in the 1972 presidential election and on the basis of Republican victories in 1972 and 1974 senatorial, gubernatorial and congressional elections. ⁴ These so-called 'victory bonus' delegates are apportioned in part on a uniform basis of 4.5 delegates for each state that voted Republican in 1972 (hereinafter referred to as a 'uniform' victory bonus) and apportioned in part on a proportional basis in which each state that voted Republican in 1972 is given additional delegates totalling 60% of the electoral college vote of that state (hereinafter referred to as a 'proportional' victory bonus). These two kinds of 'victory bonus' delegates, plaintiffs allege, create an invidious discrimination against certain regions and certain states and are thus apportioned in violation of Article II, Section 1 of the Constitution and either the Fifth Amendment or the Fourteenth Amendment. The District Court in its second consideration of the matter upheld the use of the 'victory bonus' concept but forbade further use of 'uniform' victory bonuses in which each state received an equal number of additional delegates in return for victory regardless of the population of the state. We find, for reasons expressed below, that the 'victory bonus' concept is unconstitutional in toto and, therefore, reverse the order of the District Court in part, affirm it in part and remand the cause with instructions.

I. THE EFFECT OF THE VICTORY BONUS

Plaintiffs have presented a rather detailed, but in part incomplete, statistical showing of the effect of the victory bonus concept. The heart of this showing is that the concept produces very significant deviations among the states as to (1) the number of 1972 Republican votes for President represented by delegates from each state; (2) the number of 1968--71 Republican votes for President and various state-wide offices represented by delegates from each state; and (3) the amount of total population represented by delegates from each state. According to this presentation, which was not challenged before the District Court, the maximum deviation in category (1) is 11.19 to 1. That is, each delegate from Florida, under the victory bonus scheme, would represent 28,148 1972 Republican votes for President while each delegate from the District of Columbia would represent 2,515 such votes. The maximum deviation in category (2) is 12.05 to 1 with each delegate from Pennsylvania representing 25,181 1968--71 Republican votes while each delegate from Alaska represents 2,089 of such votes. The maximum deviation in category (3) is 7.44 to 1 (if the victory bonus is applied in terms of the 1972 election) or 8.67 to 1 (if it applied in terms of the 1968--71 elections). As applied in terms of the 1972 election, each delegate from Massachusetts would represent 132,306 citizens while each delegate from Alaska would represent 17,775 citizens. As applied in terms of the 1968--71 elections, each delegate from New York would represent 147,892 citizens while each delegate from Alaska would represent 16,787 citizens.

The major weakness in plaintiffs' showing is the failure to provide us with data on the average deviation from the mean or ideal number of 1972 Republican voters, 1968-71 Republican voters or total population which each delegate should represent. A summary analysis of plaintiffs' raw data, however, indicates that this average deviation is as significant statistically as the maximum deviations discussed above. For example, the mean number of citizens which should be represented by each delegate (if the victory bonus is applied in terms of the 1972 election) is 91,278; the mean number which should be represented by each delegate (if the victory bonus is applied in terms of the 1968--71 elections) is 99,993. Making the heroic assumption that a 5% deviation should be statistically insignificant, we find that the victory bonus applied in terms of 1972 will produce 12 states whose delegates will each represent more than 91,278 plus 5% and 27 states whose delegates will represent less than 91,278 minus 5%. Even more significant results than these are obtained if the victory bonus is applied in terms of the 1968--71 elections. As so applied, the victory bonus will produce 17 states whose delegates will each represent more than 99,993 plus 5% and 28 states whose delegates will each represent less than 99,993 minus 5%. ⁵ We have no reason to believe that the application of this analysis to the mean representation of 1972 Republican voters or of 1968--71 Republican voters will not produce similar results. The legal significance of these statistics is, of course, a question wholly distinct from their statistical significance.

II. THRESHOLD ISSUES: STATE OR GOVERNMENTAL ACTION AND JUSTICIABILITY

Defendants initially challenge the jurisdiction of the District Court, alleging that there is no 'state action' or 'governmental action' involved in either the Republican National Committee or the National Republican Party. ⁶ They furthermore argue that the plaintiffs' claims are not justiciable and that, in any event, plaintiff Ripon Society has no standing to assert such claims. They finally argue, as a threshold matter, that the Republican National Party is not a juristic entity and has no legal capacity to sue or be sued. All of these claims, with the exception of the jus tertii standing of the Ripon Society, were considered and rejected in Georgia v. National Democratic Party, 145 U.S.App.D.C. 102, 447 F.2d 1271, 1273 n. 2, 1274--78, cert. denied, 404 U.S. 858, 92 S.Ct. 109, 30 L.Ed.2d 101 (1971). These holdings in Georgia were followed without dissent in Bode v. National Democratic Party, 146 U.S.App.D.C. 373, 452 F.2d 1302, 1304--05 (1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 668 (1972) and without comment in O'Brien v. Brown, 152 U.S.App.D.C. 157, 469 F.2d 563, 567, stayed 409 U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1, dismissed as moot, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 72 (1972). ⁷ As to the jus tertii standing of the Ripon Society, even though the right to vote is 'personal', ⁸ it is settled that an organization may assert the rights of its members. ⁹ There is no claim that the members of the Ripon Society do not have standing.

The defendants would have us reconsider these recent decisions rendered by seven different judges of this Court on the basis of the per curiam opinion issuing a stay in O'Brien v. Brown, 409 U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972) and on the basis of Justice Rehnquist's opinion as Circuit Justice issuing a stay in this case. ¹⁰ In those opinions the Court and Justice Rehnquist indicated 'grave doubts' about our holdings in O'Brien on the issues of state action and justiciability. The Court did not state the source of its doubts and we agree with the District Court that O'Brien can be distinguished as concerning the internal affairs of a political party and not the right of equal access to decision of those internal affairs. ¹¹ This is a distinction of considerable subtlety which we shall discuss in more detail below. Despite the fact that O'Brien is distinguishable on its facts and involved only a bare statement of 'grave doubts', we think it appropriate to reconsider the holdings of Georgia and to reaffirm them in their entirety.

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