Bachur v. Democratic Nat. Party

• Decision Date: 29 December 1987
• Docket Number: Nos. 87-3872,s. 87-3872
• Parties: Nicholas BACHUR, Sr., Plaintiff-Appellee, v. DEMOCRATIC NATIONAL PARTY; Democratic National Committee; Maryland State Democratic Party; Marie M. Garber, in her official capacity as Administrator of the Maryland State Administrative Board of Election Laws; Defendants-Appellants, The National Organization for Women (Now), The Fund for the Feminist Majority and the National Women's Political Caucus (NWPC); The New York State Democratic Committee (NYSDC); The West Virginia Democratic Party, Defendants-Amici Curiae. Nicholas BACHUR, Sr., Plaintiff-Appellee, v. MARYLAND STATE DEMOCRATIC PARTY; Defendant-Appellant, The National Organization for Women (Now), The Fund for the Feminist Majority and the National Women's Political Caucus (NWPC); The New York State Democratic Committee (NYSDC); The West Virginia Democratic Party, Defendants-Amici Curiae, and The Democratic National Party; Democratic National Committee; Marie M. Garber, in her official capacity as Administrator of the Maryland State Administrative Board of Election Laws, Defendants. Nicholas BACHUR, Sr., Plaintiff-Appellee, v. Marie M. GARBER, in her official capacity as Administrator of the Maryland State Administrative Board of Election Laws; Defendant-Appellant, The National Organization for Women (Now), The Fund for the Feminist Majority and the National Women's Political Caucus (NWPC); The New York State Democratic Committee (NYSDC); The West Virginia Democratic Party, Defendants-Amici Curiae, and Democratic National Party; Democratic National Committee; Maryland State Democratic Party, Defendants. (L), 87-3875 and 87-3876.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 837

836 F.2d 837

56 USLW 2395

Nicholas BACHUR, Sr., Plaintiff-Appellee, v. DEMOCRATIC NATIONAL PARTY; Democratic National Committee;

Maryland State Democratic Party; Marie M. Garber, in her

official capacity as Administrator of the Maryland State

Administrative Board of Election Laws; Defendants-Appellants,

The National Organization for Women (Now), The Fund for the

Feminist Majority and the National Women's Political Caucus

(NWPC); The New York State Democratic Committee (NYSDC);

The West Virginia Democratic Party, Defendants-Amici Curiae.

Nicholas BACHUR, Sr., Plaintiff-Appellee, v. MARYLAND STATE DEMOCRATIC PARTY; Defendant-Appellant,

The National Organization for Women (Now), The Fund for the

Feminist Majority and the National Women's Political Caucus

(NWPC); The New York State Democratic Committee (NYSDC);

The West Virginia Democratic Party, Defendants-Amici Curiae,

and

The Democratic National Party; Democratic National

Committee; Marie M. Garber, in her official

capacity as Administrator of the

Maryland State Administrative

Board of Election

Laws, Defendants.

Nicholas BACHUR, Sr., Plaintiff-Appellee, v. Marie M. GARBER, in her official capacity as Administrator

of the Maryland State Administrative Board of

Election Laws; Defendant-Appellant,

The National Organization for Women (Now), The Fund for the

Feminist Majority and the National Women's Political Caucus

(NWPC); The New York State Democratic Committee (NYSDC);

The West Virginia Democratic Party, Defendants-Amici Curiae,

and

Democratic National Party; Democratic National Committee;

Maryland State Democratic Party, Defendants.

Nos. 87-3872(L), 87-3875 and 87-3876.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 2, 1987.

Decided Dec. 29, 1987.

George Albert Nilson (Lee Baylin, Stephen H. Kaufman, Piper & Marbury on brief), John T. Willis (Blades & Rosenfeld, J. Joseph Curran, Jr., Jack Schwartz, Baltimore, Md., Linda Lamone, Office of the Atty. Gen., Annapolis, Md., Joseph A. Rieser, Jr., Reed, Smith, Shaw & McClay, Washington, D.C., on brief), for appellants.

G. Stewart Webb, Jr. (Kathleen M. McDonald, Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellee.

(Lena S. Zezulin, Thomas J. Hart, Thomas Hart & Associates, Washington, D.C., on brief), for amici curiae National Organization for Women, The Fund For the Feminist Majority, and National Women's Political Caucus.

(Paul, Weiss, Rifkind, Wharton & Garrison, Washington, D.C., on brief), for amicus curiae New York State Democratic Committee.

(Steven F. White, Goodwin & Goodwin, Charleston, W. Va., on brief), for amicus curiae West Virginia Democratic Party.

Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

In a suit by Nicholas R. Bachur, Sr., a registered Democrat, the district court ruled that Rule 6C of the Delegate Selection Rules for the 1984 Democratic National Convention as implemented in Maryland infringed Bachur's fundamental right to vote in an election for delegates to the national convention to select the Party's candidates for President and Vice-President. As implemented, Rule 6C required Bachur to allocate his votes on the basis of the sex of the candidates for delegate. He was permitted to vote for not more than four female and four male delegates. The district court enjoined defendants from implementing or applying Rule 6C or any other rule which would require voters to allocate their votes for candidates for delegates on the basis of sex, awarded Bachur $1.00 in damages and, pursuant to 42 U.S.C. Sec. 1988, attorneys' fees in an amount yet to be determined.

Defendants appeal and we reverse. We rule that while Bachur has standing to sue, his constitutional claim is lacking in merit and does not present a justiciable issue.

I.

The facts in the case are not disputed. They were found more elaborately by the district court and need not be as fully stated here. See Bachur v. Democratic National Party, 666 F.Supp. 763 (D.Md.1987). We repeat only the salient ones.

In recent years membership in the Democratic Party of the United States (National Party) has been approximately equally divided between the sexes. However, even by the 1960's, the participation of women in the leadership of the party, as candidates for public office and as delegates to the national convention has not mirrored the percentage of female party-members. Since at least 1968, the National Party has made repeated efforts to ensure that future conventions of the National Party would have women delegates in numbers more closely approximating the proportion of women registered as Democratic voters and in the population as a whole.

The initial efforts to accomplish this objective were less than satisfactory until the 1976 national convention adopted the so-called Equal Division Rule requiring that the delegations from each state contain an equal number of men and women delegates and alternates. The 1980 convention proved the efficacy of the rule, and so the charter of the National Party was amended to embody the direction that membership on all committees, commissions and like bodies of the National Party and state parties shall be equally divided between men and women. To implement this amendment to the charter, the Democratic National Committee included in the delegate selection rules for its 1984 national convention Rule 6C, which requires each state delegate selection plan to "provide for equal division between delegate men and delegate women and alternate men and alternate women."

Pursuant to the directive of the National Party, the Maryland Democratic Party (State Party) after conducting hearings open to all party members adopted a plan for the popular election of male and female delegates from each of Maryland's eight Congressional districts. Direct election of delegates had been resorted to only twice before with the result of disproportionately low selection of female delegates compared to the percentage of female membership in the State Party.

Plaintiff voted in 1984 in the Third Congressional District by paper absentee ballot prepared by the State Administrator of Election Laws in accordance with the State Party's certification. Ann.Code of Md., Art. 33, Sec. 12-1(b)(1) and 12-2(b)(1) and (2). Plaintiff had the right to select the national presidential candidate of his choice, i.e. to express his preference, and he had the right to vote for four male and four female delegates of his choice. For each of the national presidential candidates, except LaRouche and McGovern, there were at least four female and four male candidates for delegate pledged to that contender and twenty-four additional male candidates and fifteen additional female candidates for delegate were uncommitted. LaRouche had only three candidates for delegate of each sex pledged to him, and McGovern had only three female candidates for delegate pledged to him. Under Maryland law, the results of the direct primary presidential election are advisory unless the national party rules require otherwise, and delegates, committed or uncommitted, "shall in all good conscience reflect the sentiments of those who elected them" unless party rules require otherwise. Ann.Code of Md., Art. 33, Sec. 12-3. Nothing in the charter of the National Party or its By-Laws contained in the record before us spells out any more concretely the voting obligations of committed or uncommitted delegates or the possible binding effect of the outcome of the direct presidential preference primary. It does appear, however, that each convention is empowered to adopt rules governing those matters for that convention.

Bachur does not disclose which presidential candidate he supported nor his delegate selection. On deposition he declined to say whether he cast his votes for committed or uncommitted delegates. He admitted that, aside from the names appearing on the paper ballot, he did not know the vast majority of candidates for delegates, and he had no information about their views prior to the election.

In granting judgment for Bachur, the district court considered and ruled on a number of issues arising from defendants' defense of the action. First it ruled that Bachur had standing to sue on his own behalf and also on behalf of candidates for delegates, because his right to vote for candidates for delegates was restricted and because the voting restrictions limited the ability of a candidate to be elected as a delegate. Next it ruled that the action was not moot, even though the presidential primary election had been held before the case was decided, because of the likelihood that future elections of delegates would be conducted under the same or similar gender limitations. ¹ The issue was therefore capable of repetition yet evading review. In a third basic ruling, the district court concluded that state action was present because Maryland provided the machinery for electing delegates, so that Bachur could assert claims founded on the Fourteenth Amendment. Treating as separate and distinct issues the questions of whether Bachur's claim of denial of constitutional right was justiciable and meritorious, the district court decided the issue of whether Bachur's right to vote for delegates of his choice was unconstitutionally abridged was one that was proper for the district court to decide, and that the Equal Division Rule did violate Bachur's fundamental right to vote by restricting his ability to allocate his votes and that it also violated the equal protection clause guarantee of candidates for delegates because the National Party's attempt to remedy past discrimination against women by gender classification on the ballot "is not substantially related to a sufficiently important interest" to warrant the restriction.

Before us the only issues raised are the questions whether Bachur has standing to sue, whether his claim is justiciable and whether it is meritorious....