Redfearn v. Delaware Republican State Committee

OPINION OF THE COURT GIBBONS, Circuit Judge. This appeal involves, but unfortunately does not resolve, the conflict between two constitutionally protected interests; the right of freedom of association for the achievement of desired political ends —protected by the first amendment— and the right to have one’s vote in an election for public office given equal weight with that of other voters — protected by the equal protection clause of the fourteenth amendment. The order appealed from, an injunction issued by a single district judge on a motion for summary judgment, adjudged that certain internal rules of the Republican State Committee of Delaware for the allocation of delegate seats in that party’s state convention violated the equal protection clause of the fourteenth amendment and directed the party to adopt new internal rules consistent with that clause. Although the order appealed from was in form an injunction against the operation of the party’s internal rules, those rules implicated state action only by virtue of 15 Del.C. §§ 101, 3301(c) and 3116, and the injunction is against those statutes as applied to the Republican State Committee. We conclude (1) that the injunction issued was improvidently granted, (2) that any proper injunction may by virtue of 28 U.S.C. § 2281 be beyond the power of a single district judge, and (3) that the case should not have gone forward without giving notice to the governor and attorney general of Delaware as required by 28 U.S.C. § 2284(2). The three-judge court issue is so closely interrelated with the merits of the conflicting constitutional claims that a discussion of those claims is required. I. THE COMPLAINT AND MOTION The plaintiffs are four registered Republican voters residing in the Second Convention District, suburban New Castle County, who seek, for themselves and other Republican voters similarly situated, relief pursuant to 42 U.S.C. § 1983, and Rule 23(a) and (b) Fed.R.Civ.Proc., for the claimed dilution of their equal voting rights in the Republican party primary election for nominees for statewide office. The prayer for relief is for: “(1) A declaration that 15 D.el.C. Sections 101 and 3301(c), as construed and applied by the State Republican Party and in accordance with its custom and usage, are unconstitutional. (2) A temporary and permanent injunction prohibiting defendants from allocating among the four state Republican convention districts delegates to Republican State Conventions and Republican National Conventions in any manner other than one which results in each such delegate representing an equal number of registered Republican voters. (3) An affirmative Order directing the defendants henceforth to allocate delegates to Republican State Conventions and Republican National Conventions in a manner consistent with the principle of ‘one-man-one vote’, such that'each delegate to such conventions represents an equal number of registered Republican voteJfs; and, further, that all further voting by delegates elected to the 1972 Republican State Convention be weighted in such a way as to reflect the number of registered Republican voters represented by the delegate casting the vote. (4) Such other and further relief as may be necessary, just, and proper.” The undisputed facts alleged in the complaint and confirmed by affidavits filed in support of the motion for summary [1126] judgment, are set forth fully in the opinion of the district court.1 *The Republican Party of Delaware under its rules is organized into four convention districts: The City of Wilmington; New Castle County outside Wilmington (where the plaintiffs reside); Kent County; and Sussex County. Each convention district is allotted 30 delegates. An additional 100 delegates are allotted to districts on the basis of one delegate for each 1% of the statewide Republican vote which was cast by voters in that district during the last Presidential election. There is no question that this formula provides disproportionate convention delegate strength for districts other than suburban New Castle County which has the largest Republican registration. II. THE STATUTORY ARRANGEMENTS FOR PRIMARIES Delaware, like the other 49 states,2 has for many years provided for publicly financed primary elections for the nomination of candidates at the general election running with party designations. Prior to 1969 the State by statute defined “Party” as simply “any political party, organization or association.” It defined “Primary election” as “an assemblage of voters who are members of any political party, as defined in this section, duly convened for the purpose of nominating a candidate or candidates for public office, or for the purpose of selecting delegates or representatives to any political convention thereafter to be held for the purpose of selecting candidates, which at the last general election before the primary election polled at least 10% of the entire vote of this State, or any division or sub-division thereof, for which nominations were made.” 15 Del.C. § 3101 (amended by 57 Del.Laws ch. 181 § 1). Any such party simply notified the Department of Elections of. its desire to hold a primary election. 15 Del.C. § 3108. Prior to 1969 the method of becoming a party candidate was both simple, and from the point of view of state involvement, neutral. “Any person desiring to be voted for as a candidate for nomination at any primary election shall notify the County Committee of which he is a member, in writing at least 15 days before such primary election is held.” 15 Del.C. § 3107 (amended by 57 Del. Laws ch. 241 § 5; 57 Del.Laws ch. 567 § 18C). At one time the political party caused ballots to be printed which included the names of all self-designated candidates. See 15 Del.C. § 3124 (amended by 49 Del.Laws eh. 276 § 3). Since 1953, however, the Department of Elections has prepared the ballots. But because prior to 1969 mere notice of intention to become a candidate sufficed for a candidate to obtain a place on the primary ballot, the internal party organization had no legal though perhaps a significant practical effect on the ultimate party nominee. Thus prior to 1969 there was no legally significant tension between a Delaware political party’s right to determine its own makeup and the one man one vote principle. In 1969, however, the legislature (one may presume at the invitation of thé major parties) intruded into the internal affairs of political parties in a significant way by amending 15 Del.C. § 3107 with respect to the manner of becoming a primary election candidate for statewide office, and by the addition of 15 Del.C. §§ 3116 and 3301(c) imposing new legal obligations on political parties. Section 3301(c) provides that no candidate for the office of Elector of President and Vice President, United States Senator, Representative in Congress or State Of [1127] ficer elected statewide may be deemed nominated for the general election unless he has either received more than 50% of the eligible delegate vote at a party nominating convention or has received a majority of the votes cast in a party primary election. The section provides further: “No such state nominating convention shall have completed its business relative to such nominations until such time as 1 nominee for each of the aforesaid offices shall have received a vote greater than 50% of the total number of eligible delegate votes at such convention, which polled vote shall be considered final.” There is no way to get on the general election ballot as a candidate for statewide office other than by a convention nomination or a primary election. By virtue of 15 Del.C. § 3116, a primary election will be held only after one candidate at a party nominating convention receives 50% of the total number of eligible delegate votes, and only if one other candidate in the final polled vote at the convention receives at least 35% of the eligible delegate votes cast. The effect of these provisions is to restrict access to the general election ballot to no more than two candidates from each political party which is large enough to be eligible to hold a primary election. Candidates of minor parties — since 1969 those which polled less than 5% of the entire vote cast in any county at the last general election — can get on the general election ballot by achieving a delegate vote of over 50% at a party convention. The political reality, however, is that governmental power will be achieved through the general election process only by those parties with a following sufficient to be eligible for a primary election. Thus the alternative of nomination by a minor party convention does not significantly increase the voting power of voters in suburban New Castle County at the general election. Nor does that alternative effect the plaintiffs’ voting power with respect to choice of a nominee who will bear the Republican party label. III. THE EFFECT OF THE DISTRICT COURT ORDER The district court ruling that the Republican State Convention is in the foregoing statutory context “state action” within the meaning of the fourteenth amendment and 42 U.S.C. § 1983 is obviously correct. See Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963). But the court’s decision to let stand the challenged statutes but hold invalid the internal party rules raises quite serious first amendment issues. The court’s order that the one man one vote rule be complied with by the nominating convention of the Republican Party of Delaware can be accomplished in only two ways. Either the convention delegates must all be elected at large, or if the party concludes it should continue to have convention districts, the districts must have delegate strength in proportion to party membership in each district. Many believe that party success in achieving statewide or national political power is intimately related to success in achieving such power in the local substructures of government. Thus the ability of any party in Delaware to organize itself on a district rather than an at large basis may be, or is believed to be, significantly related to its pursuit of the power to impose its policies upon government. The freedom to associate for such a pursuit is the heart of the right of association guaranteed by the first amendment. See Bates v. Little Rock, 361 U.S. 516, 523, 80 S. Ct. 412, 4 L.Ed.2d 480 (1959); N. A. A. C. P. v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); cf. N. A. A. C. P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). If a given party chooses to organize by districts, but to allocate delegate strength to a district in which it has fewer numbers but a greater opportunity to achieve the practical advancement of the political ideas for the pursuit of [1128] which the association was formed, state action which frustrates that choice is highly suspect. Yet the effect of the district court’s ruling is that the Delaware statutes under attack have been construed to prohibit that choice. The statute under which the state intrudes its action into the party continues to operate, but at the expense of the freedom of association of the party. IV. AVAILABLE ALTERNATIVES There are obvious alternatives to the sacrifice, of the party’s associational rights. The State could be required to withdraw from its intrusion into the party organization and to return to its former neutral means or devise other neutral means for getting on the ballot for statewide general elections. That would require at least declaratory relief against the continued operation of 15 Del.C. § 3301(c) and § 3116. Since the court never weighed this alternative, but instead simply enforced the State’s decision at the expense of the associational rights of the Republican Party, we reverse and remand for reconsideration. It should be clearly understood that our reversal and remand does not determine that the alternative of holding the State primary election statutes unconstitutional must be chosen over that of enjoining the party convention delegate allocation. We reverse and remand because the district court, in deciding that the party rules rather than the state statutes must yield, did not weigh the highly relevant associational rights of the Party. We are aware that the 1969 amendment to the Delaware primary election law probably was aimed at preserving the integrity of the state electoral process' by the prevention of practices such as raiding of an opposition party primary to produce a weak opponent. The Supreme Court has held that this is a valid public policy. See Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1972). It can, however, be achieved by means other than those chosen by Delaware. Such alternative means, and their possible effect on the Republican Party’s associational rights and on the operation of the one man one vote rule in the general election, must be weighed before the court can consider an injunction by which it intrudes into the internal affairs of a political party. See Lynch v. Torquato, 343 F.2d 370 (3d Cir. 1965). V. THE THREE-JUDGE COURT ISSUE The district court rejected the defendants’ suggestion that the case required the convening of a three-judge court. 362 F.Supp. at 74. Possibly if. no more were truly at issue than the validity of the Republican Party rules and injunctive relief against the party officers, it could be said that although party action was “state action” within the meaning of the fourteenth amendment and 42 U.S.C. § 1983, the party officers were not “state officers” within the meaning of 28 U.S.C. § 2281. See Judge Mansfield’s suggestion of that possibility in Seergy v. Kings County Republican County Committee, 459 F.2d 308, 312 n. 6 (2d Cir. 1972). It seems unlikely, however, that the Supreme Court, construing § 2281 even as narrowly as it does, would permit the frustration of the Congressional policy behind that section by the device of an injunction which effectively dismantles a state statute by nominally enjoining others than state employees. There is also the problem that the Delaware statutes virtually make the party convention a state agency and its rules state administrative rules. As Seergy v. Kings County Republican County Committee, supra, states, there is no question but that statutes dealing with party primaries are of statewide application. 459 F.2d at 312 n. 5. In any event, if on remand the plaintiffs continue to press their demand for injunctive as well as declaratory relief, the district court should request the convening of a three-judge court since we have held that injunctive relief going beyond the party rules and involving the legitimacy of the State’s intrusion must [1129] be considered. Since the complaint seeks injunctive relief against “the enforcement, operation or execution of State statutes or state administrative orders” notice of the hearing on remand should be given to the governor and attorney general. If the plaintiffs withdraw their request for injunctive relief the case may proceed before a single judge. The order appealed from will be reversed and the case remanded to the district court for further proceedings consistent with this opinion. Footnotes [1] Redfearn v. Delaware Republican State Committee, 362 F.Supp. 65 (D.Del,1973). [2] The statutes on primary elections are collected in Note, Primary Elections: The Real Party in Interest, 27 Rutgers L.Rev. 298 n. 1 (1974).