LaRouche v. Fowler, No. 96-7191

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: GARLAND; Stevens
• Citation: 152 F.3d 974
• Parties: Lyndon H. LaROUCHE, Jr., et al., Appellants, v. Donald L. FOWLER, Individually and as Chairman Democratic National Committee, et al., Appellees.
• Docket Number: No. 96-7191
• Decision Date: 28 August 1998

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152 F.3d 974 332 U.S.App.D.C. 25 Lyndon H. LaROUCHE, Jr., et al., Appellants,
v.
Donald L. FOWLER, Individually and as Chairman Democratic
National Committee, et al., Appellees. No. 96-7191. United States Court of Appeals,
District of Columbia Circuit. Argued Oct. 14, 1997.
Decided Aug. 28, 1998.

James F. Schoener argued the cause for appellants, with whom Theo Mitchell, Odin P. Anderson, James E. Wilson, Jr. and Nina J. Ginsberg were on the briefs.

John C. Keeney, Jr. argued the cause for appellees, with whom Charles A. Rothfeld, Mary Eva Candon, John Hardin Young, Steven Ross and Richard A. Halloran were on the brief. Scott M. Deutchman entered an appearance.

Before: SILBERMAN, SENTELLE and GARLAND, Circuit Judges.

GARLAND, Circuit Judge:

This case arises out of Lyndon H. LaRouche, Jr.'s unsuccessful quest for the Democratic Party's 1996 nomination for President. The Party's application of certain of its internal rules deprived LaRouche of two delegates to the 1996 Democratic National Convention. LaRouche contends that application of those rules violated the Voting Rights Act, 42 U.S.C. §§ 1971, 1973-1973bb, because the Party did not submit them for judicial or administrative preclearance. He also contends that application of the rules violated his rights under the Constitution. With a limited exception, we conclude that we are without jurisdiction to decide LaRouche's Voting Rights Act claims and therefore remand them for the convening of a three-judge district court. We affirm the dismissal of LaRouche's constitutional claims.

I

LaRouche declared his candidacy for the Democratic Party's 1996 nomination for President on August 7, 1993. On March 12, 1994, the Democratic National Committee (DNC) adopted its Delegate Selection Rules for the 1996 Democratic National Convention. Rule 11(K) provided:

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[332 U.S.App.D.C. 27] For purposes of these rules, a Democratic candidate for President must be registered to vote, must be a declared Democrat, and must, as determined by the Chairman of the Democratic National Committee, have established a bona fide record of public service, accomplishment, public writings and/or public statements affirmatively demonstrating that he or she has the interests, welfare and success of the Democratic Party of the United States at heart and will participate in the Convention in good faith.

In January 1995, the DNC adopted the "Call to the 1996 Democratic National Convention," which in Article VI defined "presidential candidate" as:

any person who, as determined by the National Chairperson of the Democratic National Committee, has accrued delegates in the nominating process and plans to seek the nomination, has established substantial support for his or her nomination as the Democratic candidate for the Office of the President of the United States, is a bona fide Democrat whose record of public service, accomplishment, public writings and/or public statements affirmatively demonstrates that he or she is faithful to the interests, welfare and success of the Democratic Party of the United States, and will participate in the Convention in good faith.

By the spring of 1996, LaRouche had qualified for a position on the Democratic Party primary ballot in numerous states. On January 5, 1996, however, before the first primary was held, DNC Chairman Donald L. Fowler issued a letter addressed to the chairpersons of all state Democratic Party organizations. Expressly exercising his authority under Rule 11(K) and Article VI (hereinafter "Rule 11(K)" or "the Rules"), Fowler determined that:

Lyndon Larouche [sic] is not a bona fide Democrat and does not possess a record affirmatively demonstrating that he is faithful to, or has at heart, the interests, welfare and success of the Democratic Party of the United States. This determination is based on Mr. Larouche's expressed political beliefs, including beliefs which are explicitly racist and anti-Semitic, and otherwise utterly contrary to the fundamental beliefs ... of the Democratic Party and ... on his past activities including exploitation of and defrauding contributors and voters.

Following this determination, Fowler instructed the state parties that:

Accordingly, Mr. Larouche [sic] is not to be considered a qualified candidate for nomination of the Democratic Party for President.... Therefore, state parties ... should disregard any votes that might be cast for Mr. Larouche, should not allocate delegate positions to Mr. Larouche and should not recognize the selection of delegates pledged to him at any stage of the Delegate Selection Process.

Further, Mr. Larouche will not be entitled to have his name placed in nomination for the office of President at the 1996 Democratic National Convention. No certification of a delegate pledged to [him] will be accepted by the Secretary of the DNC....

Neither the Rules nor the Fowler letter were submitted to the Attorney General or a district court for preclearance under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.

LaRouche was not excluded from any primary ballot because of Fowler's letter. He appeared on Democratic Party primary ballots in twenty-six states, receiving a total of 597,853 votes. He alleges ¹ that under the otherwise operative party rules, he won sufficient support in Louisiana's Democratic Party primary and in Virginia's Democratic Party caucuses to be entitled to one national convention delegate from each state. The respective state party chairpersons, however, carried out the instructions in the Fowler letter and ruled that LaRouche was not entitled to the two delegates. In addition, LaRouche asserts that local precinct delegates pledged to him were excluded from Texas Democratic Party caucuses. And although Arizona's Secretary of State certified LaRouche's name for that State's "presidential

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[332 U.S.App.D.C. 28] preference election," the Arizona State Democratic Party filed a lawsuit in state court that resulted in the cancellation of that election. ² Finally, LaRouche asserts that the District of Columbia Democratic Party refused to accept the candidacy of delegates pledged to him.

On August 2, 1996, less than one month before the Democratic National Convention, LaRouche, would-be LaRouche delegates, and LaRouche supporters who either voted for him in primaries and caucuses or assertedly were barred from doing so (collectively referred to in this opinion as "LaRouche") filed suit in the District Court for the District of Columbia against Fowler, the DNC, and state Democratic Party officials and organizations in Arizona, the District of Columbia, Louisiana, Texas, and Virginia (collectively referred to in this opinion as "the DNC"). The suit alleged, inter alia, the failure to pre-clear changes in voting procedures in violation of the Voting Rights Act, as well as the violation of rights guaranteed by the Constitution and 42 U.S.C. § 1983. LaRouche sought compensatory and punitive damages, declarations that the DNC rules and Fowler's actions were void for lack of preclearance and were unconstitutional, and injunctions ordering defendants to seat his delegates at the convention and prohibiting the DNC from reenacting Rule 11(K) or any similar rule for future conventions. LaRouche also sought the appointment of a three-judge district court to hear the case, pursuant to section 5 of the Voting Rights Act and 28 U.S.C. § 2284.

On August 15, 1996, the district court denied the application for a three-judge court and dismissed the entire complaint, with prejudice as to all defendants, pursuant to Fed.R.Civ.P. 12(b)(6). The court ruled that "[n]ot only has the U.S. Supreme Court held that the national political parties possess the right under the First Amendment to 'identify' those who constitute their 'association' and to 'limit the association to those people only,' the only defendants able to afford the relief sought, viz., Chairman Fowler and the DNC, are neither 'covered jurisdictions' nor agents thereof under ... the Voting Rights Act and, thus, not subject to its 'preclearance' requirements."

II

Before reaching the merits of LaRouche's claims, we must first consider defendants' contention that those claims are moot because the 1996 election is over. LaRouche does not dispute the mootness of his specific request for an injunction ordering the seating of his delegates at the 1996 Convention, but contends that his underlying causes of action continue to present a live controversy. He is plainly correct as to his claims under the Constitution and § 1983, because his request for damages on those claims saves them "from the bar of mootness." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). Although the DNC contends that a claim for damages can keep a controversy alive only if that claim "is not so insubstantial or so clearly foreclosed by prior decisions that th[e] case may not proceed," Appellees' Br. at 14 (quoting Memphis Light, 436 U.S. at 9, 98 S.Ct. 1554), as the discussion in Part V of this opinion makes clear, those claims are neither insubstantial nor foreclosed by prior decisions. ³

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[332 U.S.App.D.C. 29] We also agree with LaRouche that both these and his other claims are saved from mootness because the situation is "capable of repetition, yet evading review." This exception to the mootness doctrine applies if: "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration[;] and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again...." Spencer v. Kemna, --- U.S. ----, ----, 118 S.Ct. 978, 988, 140 L.Ed.2d 43 (1998) (citation and internal quotation omitted); see Lewis v. Continental Bank Corp., 494 U.S. 472, 481, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Challenges to rules governing elections are the archetypal cases for application of this exception....