Ripon Soc., Inc. v. National Republican Party

• Decision Date: 23 February 1976
• Docket Number: 74--1358,Nos. 74--1337,s. 74--1337
• Citation: 525 F.2d 567,173 U.S.App.D.C. 350
• 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. . Re
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 567

525 F.2d 567

173 U.S.App.D.C. 350

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.

Reargued en banc May 30, 1975.

Decided Sept. 30, 1975.

Certiorari Denied Feb. 23, 1976.

Sec 96 S.Ct. 1147, 1148.

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 Erwin N. Griswold, Washington, D.C., with whom Benton L. Becker, Washington, D.C., was on the brief, for appellants in No. 74--1358 and appellees in No. 74--1337.

Sheldon S. Cohen and Julie Noel Gilbert, Washington, D.C., filed a brief on behalf of The Democratic National Committee as amicus curiae urging reversal.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges sitting en banc.

Opinion for the court filed by Circuit Judge McGOWAN.

Opinion filed by Circuit Judge MacKINNON, concurring except with respect to the standing of Ripon Society.

Opinion filed by Senior Circuit Judge DANAHER, concurring in the result.

Opinion filed by Circuit Judge TAMM, with whom Circuit Judge ROBB joins, concurring in the result.

Opinion filed by Circuit Judge WILKEY, with whom Senior Circuit Judge DANAHER joins, concurring in result only.

Dissenting opinion filed by Chief Judge BAZELON.

McGOWAN, Circuit Judge:

For the third time in four years, this court confronts a challenge from within one of the two major national political parties to the formula fixed by it for the allocation of delegates to its quadrennial national convention. In the earlier instances, divisions of this court held such challenges to be unavailing for want of merit. Today, for the reasons set forth hereinafter, the court en banc reaches the same result with respect to the present appeal.

I

The subject of the appeal is the delegate allocation formula adopted by the National Republican Party for its 1976 convention. The Ripon Society and nine individual plaintiffs ¹ have secured the judgment of the District Court that parts of that formula are unconstitutional. 369 F.Supp. 368 (D.D.C.1974). The ruling of the District Court is not the first one made in plaintiffs' favor. In 1971 they sued to enjoin the use of a similar allocation formula at the 1972 Republican National Convention. Partial relief was granted in April of 1972. 343 F.Supp. 168 (D.D.C.1972). That judgment was stayed by Justice Rehnquist, 409 U.S. 1222, 93 S.Ct. 1475 (1972), and the convention was conducted as planned. Thereafter the appeal from the District Court was dismissed, and the complaint amended to state the present challenge to the 1976 formula.

That formula was adopted, on a vote of 910 to 434, by the delegates to the 1972 convention. It provides as follows: 1,605 delegates, or 72 percent of the total, are allocated according to the states' electoral college votes, each state to receive three delegates per presidential elector; 312 delegates, or 14 percent, are awarded as 'victory bonuses' to states voting for the Republican candidate in the last presidential election, each such state to receive a number of additional delegates equal to 60 percent of its electoral college vote, or 20 percent of its electoral college-based delegation (the 'proportional victory bonus'); 245 delegates, or 11 percent, are divided equally among the states that voted for the last Republican presidential candidate, each such state to receive five delegates on this basis (the 'uniform victory bonus'); ² 50 delegates, or 2 percent, are awarded to the states for Republican election successes at the state level, one such delegate for each Republican governor, senator, or majority of United States Representatives which the state elects in 1972 or a succeeding year prior to the 1976 convention (this bonus will be considered part of the 'uniform victory bonus'); ³ and 30 delegates, or 1 percent, are divided among the District of Columbia (14), Puerto Rico (8), Guam and the Virgin Islands (4 each.)

Declaratory and injunctive relief was sought on the ground that the formula as a whole, and in particular its various victory bonus features, denied plaintiffs equal protection of the laws. Plaintiffs proposed that the Republican National Committee by permitted to fashion a new formula ⁴ subject to the constraints that (1) a 'substantial' number of delegates be allocated according to the Republican vote in one or more recent elections, (2) the remaining delegates be apportioned on the basis of population or electoral college vote, (3) the District of Columbia be treated for allocation purposes as a state, and (4) the territories receive a number of delegates no greater than what they would be entitled to on a population basis.

The district judge granted relief only in part. Ruling on cross-motions for summary judgment, he forbade the use of uniform victory bonuses, but upheld the formula in other respects. 369 F.Supp. at 376. Plaintiffs have appealed the denial of additional relief; defendants have appealed the granting of any relief at all.

II

Defendants assert that there are preliminary issues which, if rightly decided, preclude our reaching the merits. These involve the concepts, respectively, of standing to sue, state action, and justiciability. In this part of the opinion, we address these issues in succession.

A. Standing.

The standing requirement serves many purposes, including that of seeing to it that claims are prosecuted to binding resolution on the merits only by those with a sufficient interest to assure an informed and effective presentation. We would not wish to rule one way or the other in this case without satisfying ourselves that that requirement had been met. ⁵ We focus first on the individual plaintiffs. Each of the nine is alleged in the supplementary complaint to be a 'citizen of the United States, a Republican, a registered and qualified voter of the District of Columbia or of . . . California, Illinois, Indiana, Massachusetts, Minnesota, New Jersey (or) New York.' We think that we may fairly take this as an assertion by each plaintiff of an interest in being represented, through the delegation of his or her state or district, at the National Republican Convention. ⁶ We see no reason to differentiate, for purposes of the standing requirement, between that interest, and the interest of one seeking representation in a state or national legislature. There is of course no doubt that in the latter context an individual, claiming that his vote is diluted because his representative represents a greater number of constituents than do other representatives in the same assembly, has standing to challenge the constitutionality of the apportionment scheme. Baker v. Carr, 369 U.S. 186, 204--208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The only remaining question is whether the claims of malapportionment in this case are in fact made by plaintiffs whose representation would be improved if those claims were to prevail.

There appears to be at least one such plaintiff for each claim. It is argued that the formula as a whole deviates too far (in favor of the less populous states) from proportionality to electoral college representation, to total population, and to the Republican vote in past elections. If so, plaintiffs Halliwell, Silverman, White and Vradenburg, residents of California, New York, Illinois and New Jersey, respectively, clearly stand to benefit. ⁷ Victory bonuses in general are said to violate the Constitution. If so, there will be a clear benefit to plaintiff Behn, a resident of Massachusetts, the only state which did not cast its electoral vote for the 1972 Republican nominee. ⁸ To the extent the victory bonuses are opposed only for the form they take, i.e., uniform and electoral college-based, the plaintiffs from California, New York, Illinois, and New Jersey once again have concrete reason to complain. Finally, the District of Columbia and the territories are allegedly over-represented. All plaintiffs other than Gillette are residents of states, and thus have a sufficient stake in the matter.

The standing of the Ripon Society is more doubtful. It describes itself as a 'nationwide organization of young business, professional and academic men and women organized to engage the talents and energies of thinking young people in the cause of constructive Republicanism.' Its publications are said to provide 'a forum for fresh ideas, well-researched proposals and a spirit of criticism within the Republican Party.' Its National Executive Committee authorized this action 'to ensure fair and constitutional representation at Republican National Conventions.'

Yet the Society claims no harm to itself, ⁹ nor even to any interest to which it is particularly dedicated. ¹⁰ Certainly there may be harm to some of its members, but a party may not ordinarily assert the rights of others, ¹¹ and the Ripon Society has not made a strong case for being excepted from this rule. It makes no claim that its members are uniquely, or even predominantly, injured. ¹² It gives no reason to believe that those members who are adversely affected cannot assert their own rights. ¹³ It seems, in short, merely to have an Executive Committee whose 'spirit of criticism' extends to the allocation formula for convention delegates.

Whether the standing requirement has been so far relaxed as to be satisfied by this coincidence alone is, however, a question we need not decide in this case. We have concluded that the individual plaintiffs had standing to bring this suit. The purpose of the requirement is to ensure the presence of a jurisdictional case or...