Ripon Society, Inc. v. National Republican Party, Civ. A. No. 2238-71.

• Decision Date: 11 January 1974
• Docket Number: Civ. A. No. 2238-71.
• Parties: RIPON SOCIETY, INC., et al., Plaintiffs, v. NATIONAL REPUBLICAN PARTY and Republican National Committee, Defendants.
• Court: U.S. District Court — District of Columbia

369 F. Supp. 368

RIPON SOCIETY, INC., et al., Plaintiffs, v. NATIONAL REPUBLICAN PARTY and Republican National Committee, Defendants.

Civ. A. No. 2238-71.

United States District Court, District of Columbia.

January 11, 1974.

George M. Coburn, Washington, D. C., Robert M. Pennoyer, Patterson, Belknap & Webb, New York City, for plaintiffs.

Benton L. Becker, William C. Cramer, James S. Rubin, Washington, D. C., for defendants.

OPINION

WILLIAM B. JONES, District Judge.

This action has been pending in this Court since the filing of the original complaint on November 8, 1971. That complaint challenged the constitutional validity of the 1972 formula for the apportionment of delegates to the Republican National Convention. On December 3, 1971, the parties stipulated that the complaint would be amended to challenge the formula for apportionment of delegates to the 1976 Republican National Convention, to be adopted at the 1972 Convention. The purpose of the stipulation was to avoid the uncertainty that resulted from the filing of the original complaint and its effect on the 1972 apportionment of delegates to the 1972 Convention. Following the stipulation, the plaintiffs' complaint was amended and thereafter plaintiffs filed a motion for summary judgment. Defendants answered and moved to dismiss the action against the defendant National Republican Party, to quash service and to strike from the pleadings all references to the said defendant. Defendants also moved to dismiss the Ripon Society, Inc., as a plaintiff.

On March 9, 1972, this Court having heard arguments on all the motions, denied the defendant Republican National Committee's motion to dismiss plaintiff Ripon Society, Inc.; denied the motions to dismiss the defendant National Republican Party, to quash service and to strike from the pleadings all references to the latter defendant.

On April 28, 1972, this Court filed its opinion and order granting, in part, plaintiffs' motion for summary judgment and enjoining the defendants from adopting at the 1972 Convention a formula for apportionment of delegates to the 1976 Republican Convention, which would allocate a uniform number of bonus delegates to states qualifying for them, with no relation to the states' electoral college vote, Republican votes cast in certain specified elections, or some combination of these factors. Ripon Society, Inc. v. National Republican Party, 343 F.Supp. 168 (D.D.C.1972).

When the order was entered by the Court, the defendant Republican National Committee appealed to the United States Court of Appeals for this Circuit from all of the orders granted by this Court. Plaintiffs cross-appealed to the extent that the order granting plaintiffs' motion for summary judgment permitted the adoption at the 1972 Republican Convention of a formula of apportionment of delegates to the 1976 Republican Convention, which would award bonus delegates to states producing Republican victories in specified elections, and which according to plaintiffs did not place any rational limit on the number of delegates that such formula might apportion to each of the Territories.

On July 14, 1972, this Court denied motions to intervene by several Republican state central committees and by 1 delegate from the State of Wyoming.

On August 16, 1972, Mr. Justice Rehnquist of the Supreme Court of the United States, upon the application by Republican state committees of 13 states and a delegate from Wyoming, stayed the injunctive portion of this Court's order granting plaintiffs' motion for summary judgment "pending the timely prosecution of the appeals to the Court of Appeals, and the disposition of the appeals by that Court." Republican State Central Committee of Arizona v. Ripon Society, Inc., et al., 409 U.S. 1222, 93 S.Ct. 1475 (1972).

On November 24, 1972, the Court of Appeals dismissed the appeal to that Court on the motion of defendants. On November 29, 1972, the Court of Appeals on motion of the defendants dismissed the remaining cases on appeal and remanded them to this Court with directions to vacate its judgment and at the same time granted leave to the plaintiffs to file a supplemental complaint. Thereafter, on April 13, 1973, this Court entered an order vacating its April 28, 1972, judgment. Plaintiffs have now filed a supplemental complaint challenging the formula adopted by the 1972 Convention for the apportionment of delegates to the 1976 Republican Convention. Plaintiffs have filed a motion for summary judgment and defendants have filed a motion to dismiss, a motion to strike and a motion for summary judgment.¹

Mr. Justice Rehnquist's stay order was in effect on August 22, 1972, when the Republican National Convention adopted the rules for its 1976 Convention. Rule 30 — hereafter referred to as the 1976 formula — was among the rules adopted. According to the affidavit of William C. Cramer, in support of defendants' motions for summary judgment, a subcommittee of the Convention's Temporary Committee on Rules held public hearings and considered 17 proposals for delegate allocation and apportionment to the 1976 Convention.² The same affidavit states that, notwithstanding Mr. Justice Rehnquist's stay order, the members of the Rules Committee and the delegates to the 1972 Convention were aware of their duty to draft and adopt a delegate selection formula that "would be constitutionally sound, cognizant of * * * this Court's Order of April 28, 1972, and representative of party interests." The 1976 formula (Rule 30)³ provides for the apportionment and allocation of delegates to the 1976 Convention on the basis of the 1972 election returns as follows:

1. The 1976 Republican Convention will comprise a total of 2,242 delegates from the states, the District of Columbia, Puerto Rico, Guam and the Virgin Islands.

2. 1605 delegates, or 72%, will be apportioned to the states on the basis of 3 delegates for each of the states' 535 electoral votes; that is, 3 delegates for each state's two United States Senators and 3 delegates for each Representative in the United States House of Representatives from each state.

3. 245 delegates, or 11%, will be allocated on the basis of a uniform bonus of 4.5 delegates (rounded to 5) to each of the 49 states which cast its electoral vote for the 1972 nominee for President.

4. 312 delegates, or 14%, will be apportioned to the states on the basis of 60% of the electoral vote of each of the 49 states which cast its electoral vote for the 1972 Republican nominee for President.

5. 50 delegates, or 2%, will be apportioned to states on the basis of one additional delegate to each state which in November, 1972, or at a subsequent election prior to January 1, 1976, elected a Republican Senator, Governor, or Republicans to at least half of the state's seats in the House of Representatives; but in no event shall there be awarded more than 4 delegates to a state.

6. 16 delegates will be allocated to the District of Columbia, 8 to Puerto Rico, and 4 each to Guam and the Virgin Islands; all of which will constitute 1% of the total delegates to the 1976 Republican Convention.⁴

Each delegate to the 1976 Republican Convention will be entitled to 1 vote and in the absence of the delegate his or her alternate may cast the vote. Rule 6 of the Rules of 1976 Republican Convention (Exhibit L-1, Osborn July 31, 1973 affidavit).

It is the constitutional validity of the 1976 formula that plaintiffs' supplemental complaint challenges. Plaintiffs claim that the formula violates the Equal Protection Clause of the Fourteenth and Fifth Amendments to the Constitution and results in invidious discrimination between Republicans of different states, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and Republicans of different regions.

I. Defendants' Motions to Dismiss and to Strike

Defendants have moved to dismiss the supplemental complaint as well as to strike certain allegations therefrom. The main thrust of defendants' dismissal motion is that this Court lacks jurisdiction over the subject matter on the grounds that there is no state action involved and further that the matter at issue is non-justiciable.

The questions of state action and justiciability were before this Court at the time it entered its April 28, 1972 judgment. This Court cited State of Georgia et al. v. National Democratic Party et al., 145 U.S.App.D.C. 102, 447 F.2d 1271, cert. den., 404 U.S. 858, 92 S.Ct. 109, 30 L.Ed.2d 101 (1971), and Bode et al. v. National Democratic Party et al., 146 U.S.App.D.C. 373, 452 F.2d 1302 (1971), cert. den., 404 U.S. 1019, 92 S. Ct. 684, 30 L.Ed.2d 668 (1972), which held that there was sufficient state action in the selection of delegates to national political conventions and that the apportionment of delegates to such conventions presented a justiciable question. Relying on such authorities this Court recognized it had jurisdiction over the subject matter of plaintiffs' claims then asserted. 343 F.Supp. 168, 173-174.

But defendants would have this Court now reverse its prior conclusion. They assert that such is required by O'Brien v. Brown and Keane v. National Democratic Party, 409 U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972), decided on July 7, 1972, as well as the opinion of Mr. Justice Rehnquist in Republican Committee v. Ripon Society, 409 U.S. 1222, 93 S.Ct. 1475 (1972), at the time he stayed the effect of this Court's April 28, 1972 order. In his opinion Mr. Justice Rehnquist stated that this Court, at the time it entered its April 28, 1972 order, did not have the benefit of the Supreme Court's opinion in O'Brien. This Court has now had an opportunity to consider the O'Brien opinion and is not persuaded that the matter there is indistinguishable from the constitutional questions presented in this case.

O'Brien v. Brown and Keane v. National Democratic Party were considered together by the Supreme Court on applications to stay the judgment of the Court of Appeals of...