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(CITE AS  575 F.2d 378)

          Armando MONTANO, Gilberto Gerena Valentin and Jose           
          Melendez on their own  behalf, and on behalf of all           
          others similarly situated, 

        Louis J. LEFKOWITZ, Attorney General of the State of 
     New York, Hugh Carey,  Governor of the State of New 
     York, Salvatore Sclafani, Herbert J. Feur, Alice  
     Sachs, Charles A. Avarello, Elrich A. Eastman, Eliza
     beth A. Cassidy, Matteo  Lumina, Joseph J. Previte, 
     Anthony Sadowski and James Bass, Commissioners of  the 
     Board of Elections in the City of New York, as members 
     of, and constituting the said Board of Elections, 
     Democratic Committee of Bronx County by Joseph L.  
     Galiber, its Chairman and Agnes L. Jones, its Treasur
     er, Patrick J. Cunningham, Individually and as Chairman 
     of the Executive Committee of the Democratic  Committee 
     of Bronx County, Bronx County Committee of the Conser
     vative Party of  New York State by George McGuinness, 
     its Chairman, the Bronx County Committee  of the Liber
     al Party by Nicholas Gyory, its Chairman and Sydney 
     Burnstein, its  Treasurer, and the Bronx County Repub
     lican Committee by John Calandra, its Chairman, 

                                 No. 735, Docket 78-7033.
                         United States Court of Appeals,
                                 Second Circuit.
                              Argued Feb. 24, 1978.
                             Decided April 6, 1978.

  On appeal from an order of the United States District Court for 
the Southern District of New York, Charles S. Haight, Jr., J., 
denying temporary injunctive relief in an action brought by the 
voters in a New York congressional district to challenge pro
cedures for nomination of candidates for a special congressional 
election, the Court of Appeals, Friendly, Circuit Judge, held 
that insofar as nominators for members of the House of Represen
tatives include persons solely on the basis that they have been 
elected to represent constituencies in the county, these must be 
constituencies which include portions of the congressional dis
trict concerned, and when the constituency only partially over
laps with the congressional district, some appropriate adjustment 
is required; the judicially expressed requirement that votes of 
representatives of all districts be properly weighted must also 
be met.

  Judgment reversed and cause remanded.

  JOHN C. KLOTZ, New York City, for plaintiffs-appellants.

  Theodore Teah, New York City (Paul A. Victor and Stanley 
Schlein, New York City, of counsel), for respondent Democratic 
Committee of Bronx County.  Mark Friedlander, New York City 
(Herzfeld & Rubin and Herbert Rubin, New York City, of counsel), 
for respondent Bronx County Committee of the Liberal Party.

  Before FRIENDLY, MULLIGAN and MESKILL, Circuit Judges.

  FRIENDLY, Circuit Judge:
  This action in the District Court for the Southern District of 
New York, wherein federal jurisdiction exists on the basis of 42 
U.S.C. '1983 and 28 U.S.C. '1343(3) and (4), stemmed from the 
resignation of Representative Herman Badillo of the 21st Congres
sional District (CD) on January 1, 1978 and the consequent need 
for the Governor of New York to call a special election to fill 
the vacancy.

  Plaintiffs are all registered voters residing in the 21st C.D.  
Plaintiffs Montano and Melendez, enrolled in the Democratic 
party, brought the action on their own behalf and on behalf of 
all other similarly situated enrolled Democrats.[FN1] Plaintiff 
Gerena Valentin, whose political affiliations are not stated in 
the complaint, sued on behalf of himself and of other registered 
voters.  The complaint alleged that under '6-114 of the New York 
Election Law each political party could nominate a candidate to 
fill the vacancy in such manner as the party rules prescribed and 
that each of the four defendant political parties had delegated 
this power to the Executive Committee of the party Committee for 
the county in which the congressional district was located.  The 
Executive Committees of the Democratic, Liberal and Conservative 
parties for Bronx County, in which the 21st C.D. is located, are 
constituted in the manner described in the margin; [FN2] the 
method for selecting the Executive Committee of the Bronx County 
Republican Committee is alleged to be similar but is not specifi
cally described.  The complaint alleged that nomination of candi
dates for Congress by the Executive Committees of the County 
Committees violated the principle of one man, one vote more 
accurately, of one Democrat (or Liberal, etc.), one vote in that 
the nominators included members of the Executive Committee who 
had been elected at large by the county committees, to wit, the 
officers, and also members who represented constituencies, to 
wit, assembly districts, within the county but outside the 21st 
C.D.  Moreover, there was no weighting of the votes of members to 
reflect the strength of the respective parties in the various 
districts. Complaint was also made that an independent candidate 
who would have six weeks to obtain the 2,138 signatures required 
for nomination as a representative in the 21st C.D. had only 12 
days to do this for a special election.[FN3]

  Early in January 1978 plaintiffs moved for a temporary injunc
tion against the conducting of the nomination procedure.  The 
moving affidavit of plaintiffs' counsel contained, inter alia, in 
addition to the facts alleged in the complaint, a description of 
the ethnic and social conditions in the 21st C.D. and in Bronx 
County generally.  It stated that the dominant groups in the 21st 
C.D. were black and Hispanic and that, although such groups were 
believed to  constitute a majority of the entire county, the 
other four Congressional districts lying wholly or partly within 
it were so arranged that whites predominated.  The 21st C.D. is 
located in the South Bronx, an area of profound social decay.  
These conditions of decay, portrayed in some detail, were alleged 
to have "aggravate(d) the normal patterns of low voting registra
tion and political participation characteristic of minority 
groups.  . . ."  In contrast, other areas in Bronx County have 
large middle-class populations that are predominantly white, with 
high voter registration and election participation.  Only seven 
of the twelve assembly districts in Bronx County lie wholly or 
partly in the 21st C.D., and in three of these seven the propor
tion of the assembly district within the 21st C.D. and of the 
21st C.D. in the assembly district was exceedingly small.  The 
result of this was that a combination of assembly district lead
ers from districts having no or little connection with the 21st 
C.D. and members of the Executive Committee chosen at large could 
determine the nomination for the 21st C.D. irrespective of the 
wishes of the leaders of the assembly districts that were truly 
representative of the Congressional District.

  An opposing affidavit of the Chairman of the Bronx County 
Committee of the Liberal Party, also Chairman of its Executive 
Committee, stated, inter alia, that in designating a candidate 
for a special election to fill a vacant congressional seat, the 
county executive committee always seeks a proposed designation 
from members who have been elected from election districts within  
the congressional district; that the designee so proposed has 
invariably been designated by the Executive Committee; and that 
it was the intention to continue this custom.  Despite this the 
committee opposed judicial imposition of this practice.  An 
affidavit by the Secretary of the Democratic County Committee 
signified willingness to adopt a resolution, if ordered by the 
court, [FN4] which would modify the nominating procedures for the 
February 14 special election so that the nomination would be made 
solely by leaders of assembly districts within the 21st C.D., 
each casting a vote equal to the number of enrolled Democrats in 
the portion of his assembly district contained within the 21st 
C.D.  While, in view of the district court's ruling, the Demo
cratic Committee did not effect this rule change, an affidavit 
filed by the Secretary in this court states that, after hearing 
statements from candidates at the nominating session, the Execu
tive Committee recessed while the leaders of districts within the 
21st C.D. caucused and balloted in the manner set forth in the 
proposed resolution, and that the Executive Committee, by a large 
majority, endorsed the caucus' choice.  However, when asked at 
argument, counsel declined to agree that future nominations would 
be conducted in accordance with the proposed resolution.

  In a considered opinion, rendered with extraordinary speed, 
Judge Haight denied the temporary injunction for reasons that 
will appear in the course of our discussion.  Plaintiffs appealed 
to this court on January  12,1978.

 Although the appeal was expedited, the election was held on 
February 14, 1978, ten days before the appeal was heard, and the 
successful candidate has now been seated in the House of Repre

  We must deal first with the question whether the appeal has 
thereby become moot.  It is true that since the district court 
merely denied temporary relief and no such relief can now be 
given, see Grimes v. Commonwealth of Kentucky,  462 F.2d 1359, 
1361 (6 Cir. 1972), a reversal on this specific point would 
accomplish nothing.  But an appellate court has the power, on 
review of a denial of a temporary injunction, to consider the 
case on the merits and decide whether the complaint states a 
claim on which relief can be granted.  See Mast, Foos & Co. v. 
Stover Mfg. Co., 177 U.S. 485, 494-95, 20 S.Ct. 708, 44 L.Ed. 856 
(1900); Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 
61 S.Ct. 229, 85 L.Ed. 189 (1940); Aerojet-General Corp. v. 
American Arbitration Association, 478 F.2d 248, 252-53 (9 Cir. 
1973); Ballas v. Symm, 494 F.2d 1167, 1170-71 (5 Cir. 1974); 16 
Wright & Miller, Federal Practice and Procedure '3921, at 17 
(1977).  Although in most of the cases where this course has been 
followed the appellate court has ordered the complaint to be 
dismissed, such a procedure is also appropriate in the converse 
situation at least where, as here, no material facts are contest
ed, the lower court has considered the merits in detail, and 
these have also been argued here.  The only result of our finding 
the interlocutory appeal moot would be that the complaint would 
be dismissed and that decision would be successfully appealed to 
this court.  To "save the parties from further litigation" we 
should therefore "proceed to consider and decided the case upon 
its merits," Mast, Foos & Co., supra, 177 U.S. at 494, 20 S.Ct. 
at 712, unless a ruling on the entire complaint, with its re
quests for declaratory and permanent injunctive class relief, has 
also become moot.  

  It plainly has not.  Precedent clearly establishes that neither 
the Liberal and Democratic parties' voluntary adoption of the 
nomination procedures for the February 14, 1978 election that 
have been described above, Gray v. Sanders,  372 U.S. 368, 376, 
83 S.Ct. 801, 9 L.Ed.2d 821 (1963), nor the holding of the elec
tion and the seating of the successful candidate, moots this 
appeal, see Gray v. Sanders, supra, 372 U.S. at 375-76, 83 S.Ct. 
801; Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 
L.Ed.2d 1 (1969); Grimes v. Commonwealth of Kentucky, supra, 462 
F.2d at 1361.  Special elections for Congress will recur.  As 
this case illustrates, the very speed with which such elections 
must be conducted makes the problem of constitutional defects in 
nomination procedures peculiarly one "capable of repetition, yet 
evading review," Southern Pacific Terminal Co. v. I. C. C., 219 
U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).  See 
generally Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 
995, 31 L.Ed.2d 274 (1972); Rosario v. Rockefeller, 410 U.S. 752, 
765 n. 5, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); contrast Brocking
ton v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 
(1969).[FN5] We therefore turn to the merits.

  This court addressed the problem of the composition of county 
committees in Seergy v. Kings County Republican Committee, 459 
F.2d 308 (2 Cir. 1972).  We there dealt with a procedure with 
respect to such committees authorized by then '12 of the New York 
Election Law.  This provided that a county committee could be 
constituted in one of two ways.  One was by the election of two 
members from each election district within the county, with the 
voting power of each member in proportion to the party vote in 
his district.  The other allowed the election of up to two addi
tional members from each election district; under this option, 
which the Kings County Republican Committee had exercised, each 
member had one vote with the result that election districts  
having few Republican registrants would have the same vote as 
those with more.  We held that this was permissible insofar as it 
concerned "votes taken by the county committee in the conduct of 
its internal party affairs which have no direct relation to the 
electoral process"; on the other hand "(i)n those rare instances 
where committeemen perform public electoral functions (e. g., the 
nomination of candidates to fill vacancies or to run in special 
elections, or the giving or (sic) consent to candidacies by non-
members of the party), however, the county committee is required 
by the Equal Protection Clause to apply the 'one-man, one vote' 
principle, since in such cases it is unquestionably playing an 
integral part in the state scheme of public elections."  In Lynch 
v. Torquato, 343 F.2d 370 (3 Cir. 1965) (Hastie, J.), the court 
had reached the same conclusions with respect to the inapplica
bility of "one-man, one vote" to non-electoral functions of a 
county committee and recognized, without deciding, that a differ
ent rule might apply to electoral ones.

  Seergy is not so determinative in appellants' favor as they 
claim. While Seergy would require that the votes of the assembly 
district leaders be weighted,[FN6] the principal relief sought by 
appellants is that members of the executive committee having no 
connection with the 21st C.D. should have no voice in the nomina
tion at all.  Indeed, Seergy could be argued to be an authority 
against appellants rather than for them, since it seemed to 
assume that there was no constitutional impediment to designation 
by the county committee for nomination in a district smaller than 
the county if only the votes of representatives of all districts 
were properly weighted.  However, examination of the briefs in 
Seergy shows that the legality of participation by persons out
side the district was not argued.

  We likewise find relatively little enlightenment in decisions 
of the Supreme Court relied upon by appellants except on the 
point, which appellees do not seriously contest, that New York's 
delegation to the various parties of the right to nominate candi
dates for special elections, Election Law ss 6-114, 6-116, 6-156, 
renders the party selection process state action.  See, e. g.,  
Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 
(1944); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 
(1953); Developments in the Law Elections, 88 Harv.L.Rev. 1111, 
1155-63 (1975).[FN7] Gray v. Sanders, supra, 372 U.S. 368, 83 
S.Ct. 801, heavily relied upon by appellants, held only that in a 
state primary for the nomination of a United States Senator and 
statewide officers, Georgia could not employ  a "county unit" 
system which produced enormous disparity between the value of a 
vote in the more and the less populous counties; the statement 
from Mr. Justice Douglas' opinion quoted in the margin [FN8] must 
be read in this context. Moore v. Ogilvie, supra, 394 U.S. 814, 
89 S.Ct. 1493 (1969), also dealt with nomination to statewide 
offices.  On the other hand, Cousins v. Wigoda, 419 U.S. 477, 95 
S.Ct. 541, 42 L.Ed.2d 595 (1975), does not afford the precedent 
for affirmance which appellees assert.  The case dealt with a 
narrow question, namely, whether the Appellate Court of Illinois 
"was correct in according primacy to state law over the National 
Political (Democratic) Party's Rules in the determination of the 
qualifications and eligibility of delegates to the Party's Na
tional Convention," 419 U.S. at 483, 95 S.Ct. at 545.  In decid
ing that the Appellate Court of Illinois had indeed erred, Mr. 
Justice Brennan inserted a long footnote detailing questions, 
more nearly pertinent to the  problem in this case, which the 
Court was not deciding, 419 U.S. at 483-84 n. 4, 95 S.Ct. 541.

  We likewise find scant help in decisions of other courts of 
appeals.  While Grimes v. Commonwealth of Kentucky, supra, 462 
F.2d 1359, relied on by appellants, was like this case in that it 
related to the nominating of a candidate in a special Congres
sional election by a party executive committee, the committee was 
composed solely of representatives of counties within the con
gressional district, and the claimed violation of the "one-man, 
one-vote" principle was that large counties had no greater vote 
than small ones and that the precincts which chose the county 
representatives were themselves malapportioned.  Ripon Society v. 
National Republican Party, 173 U.S.App.D.C. 350, 525 F.2d 567 
(1975) (en banc ), cert. denied, 424 U.S. 933 (1976), relied upon 
by appellees, is likewise not dispositive.  That case, like 
Cousins, supra, dealt with the method of choosing delegates to a 
party's national convention.  Judge McGowan did suggest that 
where an assembly does not exercise formal governmental powers 
"some other scheme of representation (may) outweigh the interests 
served by numerically equal apportionment," 173 U.S.App.D.C. at 
363, 525 F.2d at 580; that "the interests they (political par
ties) advance by adopting representational schemes of their own 
choosing seem to us to be of great importance and of clearly 
constitutional stature," id. 173 U.S.App.D.C. at 364, at 581; and 
that "a party's choice, as among various ways of governing it
self, of the one which seems best calculated to strengthen the 
party and advance its interests, deserves the protection of the 
Constitution as much if not more than its condemnation," id. 173 
U.S.App.D.C. at 368, at 585 (emphasis in original).  However, the 
holding was simply that there was no constitutional flaw in a 
system whereby the Republican party selected 72% of the delegates 
to its national convention in accordance with the electoral votes 
of the states and the remaining 28% on the basis of success in 
previous elections.[FN9]

  Appellants' case when properly analyzed rests not only on the 
Equal Protection clause of the Fourteenth Amendment but also upon 
the clauses of the  Constitution with respect to the election of 
the House of Representatives and action of Congress pursuant 
thereto.  The relevant constitutional provisions are that "The 
House of Representatives shall be composed of Members chosen 
every second Year by the People of the several States," "appor
tioned among the several States . . .  according to their respec
tive Numbers," that "When vacancies happen in the Representation 
from any State, the Executive Authority thereof shall issue Writs 
of Election to fill such  Vacancies," Art. I, '2, and that "The 
Times, Places and Manner of holding Elections for . . . Represen
tatives, shall be prescribed in each State by the Legislature 
thereof; but the Congress may at any time by Law make or alter 
such Regulations . . . ," Art. I, '4.  Wesberry v. Sanders, 376 
U.S. 1, 14, 84 S.Ct. 526, 533, 11 L.Ed.2d 481 (1964), makes clear 
that the apparent breadth of the power granted to state legis
latures by Art. I, '4, is not a carte blanche specifically that 
it does not permit them to "draw the lines of congressional 
districts in such a way as to give some voters a greater voice in 
choosing a Congressman than others."  On a parity of reasoning, 
if Representatives were still "chosen as a group on a statewide 
basis, as was a widespread practice in the first 50 years of our 
Nation's history," 376 U.S. at 8, 84 S.Ct. at 530, it would be 
clear under Gray v. Sanders, supra, 372 U.S. 368, 83 S.Ct. 801, 
that nominations could not validly be made by a malapportioned 
state committee, convention or primary.

  When Congress in 1842, in protest against this "general ticket 
system," first used its power "to make or alter" state regula
tions and required that elections to the House of Representatives 
should be by single-member districts of contiguous territory, 5 
Stat. 491, see Paschal, The House of Representatives: "Grand 
Depository of the Democratic Principle"?  17 L. & Contemp.Prob. 
276, 281 (1952), it signalled its belief that Representatives 
should be representative.  See the remarks of Representative 
Campbell, the sponsor of the 1842 act, 11 Cong.Globe 445 (27th 
Cong. 2d Sess. 1842); remarks of Representative Carr, id. at 446.  
After many vicissitudes, highly interesting but unnecessary here 
to detail,[FN10] the substance of the 1842 statute was reenacted 
in 1967, 81 Stat. 581, 2 U.S.C. '2c, with several sponsors echo
ing the views of their predecessors of 1842 with respect to the 
representative nature of Representatives.[FN11] While some lofty 
minds in the deprived 21st C.D. may share Edmund Burke's noble 
views of the duty of a representative,[FN12] most are doubtless 
more interested in their Representative's reflecting the opinions 
of a majority of the district, in obtaining federal funds for it, 
and in assisting constituents in dealing with the federal bu
reaucracy.  See Bibby and Davidson, On Capitol Hill 7-8 (1972); 
Galloway, Congress at the Crossroads 11-12 (1946).

  It seems to us to be implicit in the single-member district 
system for the election of Representatives that insofar as a 
state allows nomination to be made on an elective basis, it 
cannot constitutionally include in the electorate persons elected 
to a committee for the specific purpose of representing units in 
other districts.  It is simply inconsistent with the concept of 
election of Representatives by districts that a candidate should 
be chosen in part by persons outside the district elected to 
these posts as such.

 It could not be seriously contended that a primary to chose 
nominees for the various congressional districts in a general 
election could validly be held on a statewide basis or, when a 
county contains several congressional districts, even on a coun
tywide basis, with the victors assigned to the districts in some 
arbitrary fashion which might result, however strongly political 
considerations  usually would otherwise dictate, in the nominee's 
being unresponsive to the desires of the voters in the 
district.[FN13] If  the state provides a primary election to 
select party candidates for the House of Representatives, the 
voters in each district are entitled to participate in it on the 
same basis both of equality and of independence from other dis
tricts having possibly divergent interests that they enjoy in the 
election itself.  See generally Cantwell v. Hudnut, 419 F.Supp. 
1301, 1310-14 (S.D.Ind.1976); Note, Special Service Districts in 
a City-County Consolidation, 47 Ind.L.J. 101, 110 (1971). [FN14]

  Appellants accept as they must that the exigencies of special 
elections for the House of Representatives do not afford time for 
a primary.  It may well be that nomination for such special 
elections could validly be placed in persons previously chosen to 
constitute the party hierarchy in a unit which includes but is 
larger than the particular congressional district, or by some 
combination of such persons and delegates elected by the dis
trict, or with such persons having some kind of veto power over 
the candidate selected by the delegates of the district.  We 
recognize, as Judge McGowan did in the Ripon Society case, supra, 
173 U.S.App.D.C. at 368, 525 F.2d at 585, that the party itself 
has an interest in the choice of a candidate, and that arrange
ments other than designation solely by persons elected by the 
district to represent it on a county committee may be constitu
tionally permissible indeed that there may be a variety of con
stitutionally permissible methods.  We do not face and do not 
decide those questions today.  But we see no constitutional 
justification for including among the nominators for a member of 
the House of Representatives for a particular congressional 
district delegates to a committee chosen locally by independent 
units in the county which have no relationship to the congres
sional district where the election is to be held.

 It would hardly be argued that a nominee for a special election 
in the 21st C.D. in the South Bronx, with its predominately black 
and Hispanic population, could be validly selected by a statewide 
committee containing delegates elected by upstate communities or 
even by a New York City committee with delegates elected to 
represent that city's wide spectrum of ethnic and economic inter
ests.  We do not see why the matter stands differently in any 
legally significant way because the executive committees in this 
case were countywide rather than statewide or citywide.[FN15] The 
lack of any  practical necessity for designation of a nominee for 
the House of Representatives in the manner here under attack is 
demonstrated by the resolution which the Democratic Bronx County 
Committee was prepared to adopt, by the procedure which it in 
fact followed, by the procedure which the Bronx Liberal party has 
used, and by Article V, ss 3 and 4 of the New York County Demo
cratic Committee rules which are set forth in the margin.[FN16]

  We leave it to the district judge to frame an appropriate 
decree, after such hearings and conferences with the parties and 
with such experts as he deems desirable, although in light of 
what the parties have already proposed, such formal procedures 
may not be required.  We emphasize again that we hold only that 
insofar as the nominators for members of the House of Representa
tives [FN17] include persons solely on the basis that they have 
been elected to represent constituencies in Bronx County, these 
must be constituencies which include portions of the Congression
al district concerned; that when the constituency only partially 
overlaps with the Congressional district, some appropriate ad
justment is required; and that the mandate of Seergy with respect 
to weighting must be met.

  The judgment is reversed and the cause remanded for further 
proceedings consistent with this opinion.  No costs.

      FN1. Montano was also a candidate for nomination.

      FN2.   The Executive Committee shall consist of the 
     Chairman of the Executive Committee, Secretary and 
     Treasurer of the County Committee, who shall each have 
     two votes, and the Chairman and Vice Chairman of the 
     County Committee, who shall each have one vote, and one 
     male and one female Assembly District Leader from each 
     full Assembly District, or part thereof, of Bronx 
     County as it exists at the time of the biennial Primary 
     Election, at which such Leaders are chosen.  Every male 
     and female Assembly District Leader of a full Assembly 
     District shall each have two votes.  Where an Assembly 
     District has been divided into two or more parts, each 
     male and female Assembly District Leader shall have an 
     equal vote in proportion to the total votes allocated 
     for the full Assembly District. Democratic Party Rules, 
     Article III. Section 1. (a) There shall be an Assembly 
     District leader and associate assembly district leader 
     in each assembly district in Bronx County.  Such assem
     bly district leader and associate assembly district 
     leader shall be elected directly by the enrolled voters 
     of the Liberal Party within each such assembly dis
     trict, without regard to sex, biennially, at the Prim
     ary Election held in each even numbered year.  Each 
     assembly district leader and associate district leader 
     shall be an enrolled voter of the Liberal Party resid
     ing within the assembly district from which he shall be 

     (b) The assembly district leaders and the associate 
     assembly district leaders so elected at such primary 
     election, together with the officers of the County 
     Committee shall constitute the executive committee of 
     the County Committee.

     Liberal Party Rules, Article IV.

     Section 1 Composition of the Executive Committee.  

     There shall be an Executive Committee of the Bronx 
     County Committee of the Conservative Party herein re
     ferred to as the Executive Committee which shall be 
     separate and distinct from, and shall not be a subcom
     mittee of, the County Committee.

     The Executive Committee shall be composed of the fol
     a. The Chairman, Vice Chairman, Secretary and Treasurer 
     of the County Committee.
     b. The Chairmen of all Standing Committees of the 
     County Committee as hereinbefore provided.
     c. The Assembly District Leaders of all Assembly Dis
     tricts, with in Bronx County as hereinafter provided.
     d. The immediate past Chairman of the County Committee 
     or Interim County Committee.
     e. Assembly District Administrators as hereinafter 

     Conservative Party Rules, Article VI.

      FN3. This point, which is without merit for reasons 
     well stated by Judge Haight, seems to have been aban
     doned on appeal.

      FN4. Such an order was thought to be necessary to 
     avoid any infraction of the Voting Rights Act of 1965, 
     42 U.S.C. '1973c.

      FN5. Judge Haight ruled that plaintiffs lacked stand
     ing to attack the rules of the Liberal, Conservative 
     and Republican parties.  We need not disturb this 
     ruling since a decision with respect to the Democratic 
     party will constitute a precedent with respect to the 
     other parties.

      FN6. Judge Haight pointed out that this would work 
     against the 21st C.D. rather than for it.

      FN7. In Ripon Society v. National Republican Party, 
     173 U.S.App.D.C. 350, 525 F.2d 567 (1975) (en banc ), 
     cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 
     341 (1976), the D.C. Circuit questioned but did not 
     decide whether a national political party's allocation 
     of national convention delegates constituted state 
     action.  Whether or not the D.C. Circuit confines such 
     doubts to national delegate selection rules, we join 
     with "most commentators" and "many lower courts" in 
     holding that when the state grants political parties 
     the right to nominate candidates and then gives those 
     nominees special access to the ballot, compare Election 
     Law ss 6-114, 6-116, 6-156, with ss 6-138, 6-142(2), 6-
     158(9), the parties' procedures constitute state ac
     tion.  Tribe, American Constitutional Law 788, 790 
     (1978).  See Seergy v. Kings County Republican Commit
     tee, supra, 459 F.2d at 314; Grimes v. Commonwealth of 
     Kentucky, supra, 462 F.2d 1359. We do not believe that 
     the Supreme Court's footnote in O'Brien v. Brown, 409 
     U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972) (staying 
     judgment of the Court of Appeals because of the "cir
     cumstances and time pressure surrounding" the case), a 
     challenge to a delegate seating decision of the Demo
     cratic National Convention's Credentials Committee, to 
     the effect that that case was not one "in which claims 
     are made that injury arises from invidious discrimina
     tion based on race in a primary contest within a single
     State.  Cf. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 
     97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 
     64 S.Ct. 757, 88 L.Ed. 987 (1944)," was intended to 
     suggest an absence of state action in any political 
     party case not involving race.  See generally Cousins 
     v. Wigoda, 419 U.S. 477, 483 n. 4, 95 S.Ct. 541, 42 
     L.Ed.2d 595(1) (1975) (declining to decide the "conven
     tion action as state action" question raised by 

      FN8.  Once the geographical unit for which a represen
     tative is to be chosen is designated, all who partici
     pate in the election are to have an equal vote whatever 
     their race, whatever their sex, whatever their occupa
     tion, whatever their income, and wherever their home 
     may be in that geographical unit.  This is required by 
     the Equal Protection Clause of the Fourteenth Amend
     ment. 372 U.S. at 379, 83 S.Ct. at 808.

      FN9. The rather complex formula is set forth in 173 
     U.S.App.D.C. at 353-54, 525 F.2d at 570-71.

      FN10. See, in addition to the Paschal article cited in 
     text, Cong. Research Service, The Constitution of the 
     United States of America: Analysis and Interpretation 
     109 (1973); H.R.Rep.No.191, 90th Cong., 1st Sess., at 3 
     (1967); Sen.Rep.No.291, 90th Cong., 1st Sess., at 9 

      FN11. See Sen.Rep.No.291, 90th Cong., 1st Sess., at 28 
     (1967) (individual views of Senator Bayh).  Senator 
     Baker spoke on the Senate floor of affording "maximum 
     protection of the rights of all people and maximum 
     responsiveness to their needs."  113 Cong.Rec. 34365-66 
     (Nov. 30, 1967).

      FN12.  "Your representative owes you, not his industry 
     only, but his judgment; and he betrays instead of 
     serves you if he sacrifices it to your opinion."  
     Speech to the Electors of Bristol, November 3, 1774, in 
     Burke's Politics 115 (Hoffman & Levack eds. 1949).

      FN13. Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 
     13 L.Ed.2d 401 (1965), in which the Supreme Court 
     upheld a Georgia plan wherein state senators were 
     elected at large from a multi-district county but each 
     was required to live in a separate district within the 
     county, is not to the contrary.  The Court emphasized 
     that under the Georgia system "it is not accurate to 
     treat a senator from a multi-district county as the 
     representative of only that district within the county 
     wherein he resides. The statute uses districts . . .  
     merely as the basis of residence for candidates, not 
     for voting or representation.  . . .  (S)ince his 
     tenure depends upon the county-wide electorate he must 
     be vigilant to serve the interests of all the people in 
     the county, and not merely those of people in his home 
     district; thus in fact he is the county's and not 
     merely the district's senator."  Id. at 438, 85 S.Ct. 
     at 501.  See Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 
     1554, 18 L.Ed.2d 656 (1967); Dallas County v. Reese, 
     421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975).  By 
     contrast, the Representative from the 21st C.D. repre
     sents only that congressional district; he does not 
     represent the entire county.

      FN14. This is not a case in which the "outsiders" who 
     have been granted the right to vote with respect to a 
     nominee for the district have some important link to 
     the district, as in the case of commuters or of nonres
     idents owning property within the district.  Such cases 
     raise quite different issues.  See generally Cantwell 
     v. Hudnut, supra, 419 F.Supp. 1301.  It is also worth 
     noting that the problem here presented will not arise 
     in what we would think to be the more usual case where 
     there are several counties within one Congressional 
     district, e. g., Grimes v. Commonwealth of Kentucky, 
     supra, 462 F.2d at 1360 (21 counties in Kentucky's 
     Sixth Congressional district); it occurs in heavily 
     populated urban areas with more Congressional districts 
     than counties.

      FN15. We are not impressed by the argument, Anderson 
     v. Meisser, 285 F.Supp. 974, 975-76 (E.D.N.Y.1968), 
     that any injury inflicted on the voters in the 21st 
     C.D. by the participation of persons elected from other 
     districts is compensated by the potential reciprocal 
     ability of persons elected by voters in the 21st C.D. 
     to inflict injury on the voters in other Congressional 
     districts when, as and if special elections should be 
     held there.  Even if the ability to inflict such injury 
     could make up for the dilution of one's vote, its occa
     sion is totally fortuitous, depending as it does on the 
     location and timing of future special elections, and 
     the members of the 21st C.D. may never realize its 

      FN16.  3. Nominations for Public Office.  Whenever a 
     Party nomination, other than a nomination required to 
     be made at a primary election, is to be made for a 
     public office to be filled at a general or special 
     election (a) such nomination shall be made by the 
     Executive Committee if for a public office to be filled 
     by the voters of a political sub-division whose bounda
     ries are coterminous with the boundaries of the County 
     of New York or the Borough of Manhattan, and any vacan
     cy in a nomination so made shall be filled by the 
     Executive Committee or by a sub-committee thereof 
     appointed by the Executive Committee for that purpose, 
     and (b) such nomination shall be made by the appro
     priate District Committee if for a public office to be 
     filled by the voters of a political sub-division wholly 
     or partly contained within, but embracing only a part 
     of, the County of New York or the Borough of Manhattan, 
     and any vacancy in a nomination so made shall be filled 
     by a sub-committee appointed by said District Committee 
     for that purpose.

     4. Weighted Voting.  Whenever a District Committee 
     takes action with respect to a Party nomination for 
     public office referred to in Article V, Section 3, or 
     an authorization of a designation or nomination re
     ferred to in Article III, Section 5(b), of these Rules 
     and Regulations, the voting power of each member shall 
     be in proportion to the Democratic Party vote for 
     Governor at the last preceding gubernatorial election 
     in the Election

     District from which such member was elected, or in case 
     the boundaries of any such district have been changed 
     since the last preceding gubernatorial election in such 
     manner that such vote for Governor cannot be deter
     mined, or in case any new Election District has been 
     created since such election, in proportion to the Demo
     cratic Party vote cast for Member of Assembly in such 
     district, as the case may be, or in the event there was 
     no election for Member of Assembly subsequent to such 
     change, then in proportion to the Party enrollment in 
     such district at the last preceding general election; 
     provided however, that in any case where a District 
     Leader who is not otherwise a member of the County 
     Committee is automatically a member of the County Com
     mittee pursuant to Section 15 of the Election Law and 
     of a District Committee pursuant to Article I, Section 
     2(c) of these Rules and Regulations, the vote of any 
     such District Leader in any such District Committee 
     shall equal the smallest proportional vote allotted by 
     the foregoing provisions of this section to any other 
     member of such District Committee. New York Democratic 
     County Committee Rules, Article V.

      FN17. We specifically do not deal with nominations for 
     vacancies in state elective offices.  Although, as we 
     were warned at the argument, this question is bound to 
     arise, it is not present in this case and our decision 
     rests in considerable part on the provisions of the 
     Constitution with respect to the election of Represen
     tatives and action by Congress pursuant to them.

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