Bode v. National Democratic Party

• Decision Date: 30 September 1971
• Docket Number: No. 71-1536.,71-1536.
• Parties: Kenneth A. BODE, Individually and as Director and on Behalf of the Center for Political Reform, et al., Appellees, v. NATIONAL DEMOCRATIC PARTY et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

452 F.2d 1302 (1971)

Kenneth A. BODE, Individually and as Director and on Behalf of the Center for Political Reform, et al., Appellees, v. NATIONAL DEMOCRATIC PARTY et al., Appellants.

No. 71-1536.

United States Court of Appeals, District of Columbia Circuit.

Argued August 25, 1971.

Decided September 30, 1971.

Mr. Joseph A. Califano, Jr., Washington, D. C., for appellants.

Mr. William Josephson, Washington, D. C., with whom Messrs. Joseph L. Rauh, Jr., John Silard and Elliott C. Lichtman, Washington, D. C., were on the brief, for appellees.

Messrs. Arthur K. Bolton, Atty. Gen., State of Georgia, Harold N. Hill, Jr., Executive Asst. Atty. Gen., and Robert J. Castellani, Asst. Atty. Gen., filed a brief on behalf of the State of Georgia as amicus curiae.

Before FAHY, Senior Circuit Judge, and ROBB and WILKEY, Circuit Judges.

FAHY, Senior Circuit Judge:

The District Court has held in this case that the appropriate constitutional method of apportionment of delegates to the 1972 Democratic National Convention is by a formula, to quote the language of the order, "based on the number of Democratic voters voting in one or more immediately preceding Presidential elections." In so ruling, the court also held that the delegate allocation formula recently adopted by the Democratic National Committee—hereinafter the Committee—is discriminatory, without rational basis, and unconstitutional. Appropriate injunctive relief was entered to implement the decision. We are unable to agree with these rulings and accordingly we reverse.¹

The formula adopted by the Committee provides for the allocation of a ceiling of 3,016 votes as follows: 1,386 (46% of 3,000) of the delegates are apportioned on the basis of each State's average Democratic voting strength in the last three Presidential elections, and 1,614 (54% of 3,000) of the delegates are apportioned to the States and the District of Columbia² on the basis of a multiple of three times their respective electoral college strength. The remaining 16 delegates are divided among the territories of Puerto Rico, the Canal Zone, the Virgin Islands and Guam.³ Appellees do not question the upper limitation on the aggregate number of delegates, except they would eliminate the 16 as not representative of those entitled to vote and would apportion the remaining 3,000, as the District Court held to be the appropriate constitutional method, among the States according to demonstrated party strength. The theory upon which the court rested its decision is that the one man, one vote rule recognized in the reapportionment cases following Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), applies to the allocation of convention delegates among the States on the basis of "one Democrat, one vote." Presumably, the District Court thought that allocation of delegates on any other basis would result in disproportionate representation of Democrats from different States. The manner in which the delegates allotted to each State are selected within the State is not challenged, only the basis on which the allotment to the States has been made by the Committee.

I

Appellees, as did the court below, deem their position to be required by the provision of the Fourteenth Amendment that no State shall "deny to any person within its jurisdiction the equal protection of the laws," and by the decisions of the Supreme Court interpreting this provision in the reapportionment cases. A threshold condition to the application of the Equal Protection Clause is that the challenged action be that of a State. Plaintiffs in The State of Georgia et al. v. The National Democratic Party et al., 145 U.S. App.D.C. ___, 447 F.2d 1271 (1971), challenged the delegation allotment of the 1972 National Conventions of both the Democratic and Republican Parties as violative of the Equal Protection Clause because not based solely on population in conformity with the one man, one vote standard. Pointing to the Supreme Court decisions holding that state action was involved in the methods by which state political parties nominate candidates for local or national office,⁴ the Georgia court reasoned that state action was no less present when a state political party selects delegates to the party's national convention. The court then said:

If the action of the individual state parties in selecting delegates to participate in the presidential-nominating process constitutes state action, the collective activity of all the states\' delegates at the national convention can be no less readily classified as state action.

We accordingly hold, following Georgia, that the decision made by the Democratic Party at the national level, here challenged, is tantamount to a decision of the States acting in concert and therefore subject to constitutional standards applicable to state action.⁵

Beyond the question of state action lies another preliminary condition to the application of the equal protection standard, that of justiciability. On that question, the issues in the present case cannot be distinguished from those in Georgia that were held to be justiciable. Although, as we shall see, policy considerations are here involved as they were in Georgia, nevertheless, "judicially manageable standards," Baker v. Carr, supra, at 226, 82 S.Ct. 691, are not lacking to guide judicial decision. The "courts are competent to scrutinize the allocation schemes promulgated by the national parties in order to determine whether, given the context of political partisanship out of which such formulas necessarily arise, substantial deviations from equality of voting power at the Conventions are supported by legitimate justifications." Georgia, supra at ___, 447 F.2d at 1278.

Absent unconstitutional classifications based on race, religion, sex or economic status, deviations from mathematically precise equality of voting power may be allowed to further some reasonable countervailing policy, Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971). Measuring against such standards set by the Supreme Court, the court in Georgia held that delegate allocation based solely on state population is not allowed by the Equal Protection Clause, as claimed by appellants in that case. In so holding, however, the court explicitly avoided passing on the validity of apportionment based solely on demonstrated party strength,⁶ a question before us to which we now turn.

II

In order to avoid discrimination violative of the Equal Protection Clause we do not find it to be essential that the party allocate convention delegates to States in proportion to the number of Democratic voters voting in the respective States in one or more preceding Presidential elections.⁷ The District Court, holding otherwise, thought that the reapportionment decisions of the Supreme Court, resting upon the one man, one vote formula, protecting from "debasement or dilution of the weight of a citizen's vote," Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964), require the convention delegates to be apportioned on a one Democrat, one vote basis.

In Reynolds the Court elaborately explains the reasons for the one man, one vote principle:

Each and every citizen has an inalienable right to full and effective participation in the political processes of his State\'s legislative bodies.

The Court continued,

Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his State legislature.

Id. at 565, 84 S.Ct. at 1383.

There is no doubt that the allocation among the States of delegates to a party national convention is subject to the equal protection requirements of the Fourteenth Amendment. We are not prepared to hold, however, that the only constitutionally acceptable formula for such allocation is one based solely on prior party strength—one Democrat, one vote. The argument for applying such a criterion to delegate allocation begins by assuming, rightfully, that the nominating process at a national party convention is an "integral part" of the elective process. Appellees argue further that the convention must provide those who are there represented an equal voice as tantamount to the equal vote guaranteed by the reapportionment cases. In appellees' view this would insure that the ultimate vote would be more than a rubber stamp of a decision made by delegates without regard for the wishes of those who appellees say should be represented at the convention. To implement their theory, appellees would allow only "Democratic" representation at the national convention; and to determine the number of "Democrats" in each State entitled to representation appellees would look to an average of the number of votes cast for the Democratic Presidential nominee in the three immediately preceding Presidential elections. None of the Supreme Court decisions, however, has passed upon a contention comparable to the one thus advanced; and we think none requires such a rigid formula.

The Equal Protection Clause, as we have indicated above, embraces within its protection proceedings intimately connected with the progression of the elective process. It prohibits, for example, racially-motivated exclusion of eligible voters from primaries, Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), and Nixon v. Condon, supra; the weighting of primary votes in favor of sparsely-populated counties, Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); and the requirement of geographical support in petitions by independent candidates for placement on the ballot, Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969).⁸ Yet in all cases dealing with apportionment, or candidate-sorting through primary or petitioning procedures, it is the franchise that is protected from debasement...