(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,
Plaintiffs-Appellants,
v.
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,
Respondents.
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
sentatives.
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
elected.
(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
lowing:
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
provided.
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
O'Brien.
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
(1967).
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
potential.
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.
E-Mail: johnklotz@johnklotz.com