Bachur v. Democratic Nat. Party, Civ. No. B-84-1965.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtWALTER E. BLACK, Jr.
Citation666 F. Supp. 763
PartiesNicholas R. BACHUR, Sr. v. DEMOCRATIC NATIONAL PARTY, Democratic National Committee, Maryland State Democratic Party, and Marie M. Garber, in her official capacity as Administrator of the Maryland State Administrative Board of Election Laws.
Docket NumberCiv. No. B-84-1965.
Decision Date29 July 1987


G. Stewart Webb, Jr., Kathleen Morris McDonald, Archibald R. Montgomery, IV and Venable, Baetjer and Howard, Baltimore, Md., for plaintiff.

Stephen J. Immelt, Russell T. Baker, Jr., George A. Nilson, Paul A. Tiburzi, Dorothy A. Beatty and Lee Baylin, Baltimore, Md., and Anthony S. Harrington, Elliot M. Mincberg and Hogan & Hartson, Washington, D.C., for defendants Democratic Nat. Party and Democratic Nat. Committee.

John T. Willis, Westminster, Md., and James B. Kraft, Ellicott City, Md., for defendant Maryland State Democratic Party.

Stephen H. Sachs, Atty. Gen., Jack Schwartz and Kathleen Howard Meredith, Asst. Attys. Gen., Baltimore, Md., for defendant Marie N. Garber.

WALTER E. BLACK, Jr., District Judge.

This litigation raises a series of complex legal questions at the heart of, and fundamental to, our democratic electoral system. The precise focus of the Court's inquiry is the delegate selection process for the 1984 Democratic National Convention utilized in the State of Maryland by the Maryland State Democratic Party. The questions presented implicate the frontiers of constitutional law and affirmative action and require difficult legal, political, and sociological judgments; basic issues are presented, such as the right of a citizen to vote unencumbered, the right of a major political party independently to determine its delegate selection process, and the power and authority of courts to supervise or intervene in that selection process. Counsel have fully briefed all matters of concern to the Court. Several questions which have been expressly passed over by the Supreme Court, see Cousins v. Wigoda, 419 U.S. 477, 483 n. 4, 95 S.Ct. 541, 545 n. 4, 43 L.Ed.2d 595 (1975), must be decided today. As far as the Court can discern, this case is one of first impression.


Plaintiff, Nicholas R. Bachur, Sr., is a resident of Towson, Maryland. In 1984, he was qualified and registered to vote in the Third Congressional District in Maryland as a member of the Democratic Party. Bachur has been a registered Democrat his entire voting life and usually plans to vote in Democratic primary and general elections. Because of a business trip to Toronto, Canada, which would take him out of Maryland on May 8, 1984, the date of the Maryland Democratic Primary, Bachur sought to vote by absentee ballot. Bachur, in fact, did vote in the primary by absentee ballot.

In this case, Bachur sues the Democratic National Party, the Democratic National Committee, the Maryland State Democratic Party, and Marie M. Garber, in her official capacity as Administrator of the Maryland State Administrative Board of Election Laws, see supra note 1. The Democratic National Party is a non-profit organization which, through the Democratic National Committee, promulgated rules for the selection of delegates to the 1984 Democratic National Convention. The Maryland State Democratic Party is a non-profit organization with its principal office in Maryland. It issued rules in conformity with the mandatory guidelines set forth by the National Party to govern the selection of delegates in Maryland. Ms. Garber, in her official capacity, is responsible for overseeing the conduct of elections in Maryland; the Board of Elections administers and controls all primary and general elections. See Md. Ann.Code art. 33, § 1A-1(b), (e) (1986).

The conduct at issue here concerns the voting process, procedure, and requirements developed and implemented by the defendants for the Maryland Democratic Primary in 1984. As will be described in greater detail below, the defendants required voters to select an even number of male and female candidates for delegates to the 1984 Democratic National Convention when they voted in May, 1984.

The thrust of Bachur's claim is directed at the Democratic National Party's Charter. The Charter, as amended January 31, 1985, provides: "The National Convention shall be composed of delegates divided equally between men and women." The Charter & The By-Laws of the Democratic Party of the United States, Charter of the Democratic Party of the United States, Art. Two, § 4 (1985) hereinafter referred to as "Charter". See also Charter, Art. Eleven, § 16 (membership of Democratic National Committee, the Executive Committee, Democratic state central committees, all national office party conventions, committees, commissions, and like bodies shall be equally divided between men and women) (emphasis added).

Gender plays a special, albeit unique, role in the Party Charter and the specific rules implemented pursuant to the Charter for the 1984 Convention. The Democratic Party first required that each state delegation to the national convention consist of equal numbers of men and women in 1980. Democratic National Committee, Final Call for the 1980 Democratic National Convention II E (1979); see Note, Affirmative Action in the Electoral Process: The Constitutionality of the Democratic Party's Equal Division Rule, 15 U.Mich.J.L. Reform 309, 312-13 (1982) hereinafter cited as Affirmative Action. The purpose underlying the rule was to remedy prior discrimination against women. See generally Abzug, Segal & Kelber, Women in the Democratic Party: A Review of Affirmative Action, 6 Colum.Hum.Rts.L.Rev. 1 (1974) (hereinafter cited as Abzug) (tracing history of role of women in Democratic Party). At the 1980 Convention, delegates amended the Party Charter to require equal numbers of male and female delegates for future National Conventions. Note, Affirmative Action, supra, at 312-13.

The current Charter contains several provisions which reflect these principles. The National Committee, according to the Charter, shall be composed of, among others, "the Chairperson and the highest ranking officer of the opposite sex of each recognized state Democratic Party." Charter, Art. Three, § 2 (emphasis added). The members of the National Committee "from each state shall be divided as equally as practicable between committeemen and committeewomen." Id. at § 3 (emphasis added). The Charter, while prohibiting discrimination on the basis of sex, race, age, religion, economic status, sexual orientation, or ethnic origin, nonetheless requires National and State Democratic Parties to adopt and implement affirmative action programs. Charter, Art. Ten, §§ 2-3 (emphasis added). Said programs are particularly designed for minority groups, Blacks, Native Americans, Asian/Pacifics, Hispanics, women and youth. Id. at § 3.2 The goal of the program is representation as nearly as practicable as indicated by the particular group's presence in the Democratic electorate. Id. Quotas are expressly made impermissible. Id. at § 4. Somewhat paradoxically, the Charter further provides that "equal division at any level of delegate or committee positions between delegate men and delegate women or committeemen and committeewomen shall not constitute a violation of any provision thereof." Id. at § 6. The Charter may be amended by majority vote of all delegates to the National Convention, by two-thirds vote of the entire membership of the Democratic National Committee, or by two-thirds vote of the entire membership of any Democratic Party Conference. Charter, Art. Twelve, § 1.

Acting pursuant to the National Charter, the Democratic National Party adopted, on March 26, 1982, its delegate selection rules for the 1984 Democratic National Convention. Rule 6(C) is located within that portion of the rules titled "Affirmative Action." It provides in pertinent part: "State Delegation Selection Plans shall provide for equal division between delegate men and delegate women and alternate men and alternate women in the convention delegation."3 The provision is commonly referred to as the "Equal Division Rule."

States had various options for implementing the Equal Division Rule, including primary elections, caucuses, and conventions.4 The State party must follow the National Party's rules; failure to comply could result in the State delegation not being allowed to participate in the National Convention. See Charter, Art. Two, § 2; Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981). In 1984, the Maryland Democratic Party opted to carry out the National Party's mandate by enacting a rule requiring that candidates for delegate be classified by gender on the ballot in a general primary election, voters choosing a certain number of delegates of each sex:

Since the total delegation must be equally divided between men and women delegates and men and women alternates, the Congressional District delegates and alternates will be equally divided, with the candidates listed on the ballot by sex. The voters will be instructed to vote for the appropriate number of each. The voter will be allowed to vote for the total number of Delegates and Alternates allocated to his Congressional District. The highest vote getters will be the Delegates and the runners-up will be the Alternates.5

Amended Complaint, Appendix A. Maryland was entitled to send a total of seventy-four delegates and twenty-five alternates to the 1984 National Convention. Of the seventy-four delegates, the Maryland Democratic Party determined that forty-two would be elected at the Congressional District level by Democratic voters. Voters would select the following numbers of delegates and alternates in the primary:

                Congressional District      Delegates      Alternates
                       First                    5              1
                       Second                   5              2
                       Third                    6              2

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1 books & journal articles
  • Women's Rights and the Limits of Constitutional Doctrine
    • United States
    • Political Research Quarterly No. 44-4, December 1991
    • December 1, 1991
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