UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 20, 1972.
EDMUND G. SEERGY ET AL., PLAINTIFFS-APPELLEES,
KINGS COUNTY REPUBLICAN COUNTY COMMITTEE ET AL., DEFENDANTS-APPELLANTS, AND LOUIS J. LEFKOWITZ, ATTORNEY GENERAL OF THE STATE OF NEW YORK, INTERVENOR-APPELLANT, AND CHARLES H. LANIGAN, CHAIRMAN OF THE REPUBLICAN STATE COMMITTEE, INTERVENOR-APPELLANT
Hays, Mansfield and Mulligan, Circuit Judges.
MANSFIELD, Circuit Judge:
We are called upon once again to delve into the intricacies of the New York Election Law, this time to determine whether a procedure authorized by it for the election and voting powers of members of a county political committee operate to deprive duly registered voters of their constitutional right to equal protection of the laws.
The plaintiffs below, enrolled Republican voters and members of the Kings County Republican County Committee, brought this action under 42 U.S.C. § 1983*fn1 to challenge the system by which committeemen's votes in the Kings County Republican County Committee are counted. Specifically plaintiffs contend that a rule adopted by that Committee pursuant to § 12 of the Election Law, McKinney's Consol.Laws, c. 17, which gives each county committee member an equal vote rather than a vote weighted according to the number of Republican voters in the district he represents, violates the "one-man, one-vote" principle established by the Supreme Court as a voter's constitutional right in the election of government officials. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963); Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Avery v. Midland County, 390 U.S. 474, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968). Upon the undisputed facts Judge Dooling denied defendants' motion for summary judgment dismissing the complaint and granted plaintiffs' similar motion to the extent of declaring invalid the aforementioned Committee rule and the language of § 12 which authorized its adoption. We affirm in part and reverse in part.
A full understanding of the plaintiffs' constitutional claims requires some discussion of the function of party county committees and of the pertinent sections of the New York Election Law. The political subdivisions of the State of New York consist of counties, each of which is subdivided into assembly districts. Each assembly district, in turn, is divided into election districts. The election district is the basic unit of representation within the state's electoral system. Each of the major political parties gears itself to this structure, conducting primary elections in which candidates for party nomination are designated by means of petitions signed by a relatively small number of enrolled voters of the party. The enrolled members of the party then select candidates for the general election by casting primary ballots, with each voter's ballot having equal voting strength.
Each political party conducts its business in the State of New York through committees. The New York Republican Party, for instance, acts through a state committee and county committees. Each county committee is elected by enrolled members of the Republican Party within that county. Except in rare instances the county committee does not perform any electoral functions on behalf of its enrolled party members. Its function is essentially to handle the party's internal affairs at the county level, including the promotion of Republican candidates and policies for consideration by its members, development of party programs, solicitation of uncommitted voters to enroll in the Republican Party, raising of campaign funds, manning of the polls at election time, distribution of party literature, canvassing voters, electioneering, and similar activities.
In rare instances, the county committee may choose the party nominee or play a major part in that determination. The committee, for instance, may nominate a candidate to fill a vacancy in an elective office (except for statewide offices) which occurs after the fifth Tuesday preceding the fall primary by majority vote of a quorum. Election Law § 131(7). It may nominate Republican Party candidates for other than statewide offices to be filled at a special election, Election Law § 131(6); Rules of the Kings County Republican County Committee, Art. IV, § 1(a), and may fill vacancies in nominations made at a fall primary unless the party rules provide otherwise. Election Law § 140(3). The county committee must also consent before the party nomination for other than statewide office may be given to a person not enrolled in the party. Election Law § 137(4). Most often, however, these duties fall to the Executive Committee, which in Kings County, "at all times when the County Committee is not in actual session, shall have, possess and exercise all the rights, privileges, powers and duties which the County Committee may have and possess, except where such rights, privileges, powers and duties are by statute vested in or imposed upon said County Committee exclusively," Rules of the Kings County Republican County Committee, Art. IV, § 1(e).
Under state law each political party by appropriate rule determines for itself which committees other than state and county committees shall be formed and in what manner such committees shall be organized. Election Law § 14. The Election Law, however, prescribes the way in which state and county committees are to be established. Section 12*fn2 provides that the county committee shall consist of two members elected from each election district within the county, and that the voting power of each member thus elected "shall be in proportion to such party vote" in his election district. The same section, however, also allows each county committee to choose an alternative election procedure whereby up to two additional members (up to four members in all) may be elected from each election district. In counties where this option to elect additional committee members is exercised, the Election Law requires that "each member [of the county committee] shall have one vote."
The defendant Kings County Republican County Committee, by Art. 1, § 1 of its Rules,*fn3 has chosen the second of the foregoing alternatives authorized by § 12 of the Election Law. As a result each county committeeman has an equal vote instead of the weighted vote (based on the number of Republican constituents in his election district) which he would have if the county committee had chosen the first alternative and limited each election district to two committeemen. Because of the wide disparities in Republican voter strength among the various Kings County election districts, committeemen from districts with low Republican enrollment exercise a voting strength much greater than the proportionate strength of the Republican voters they represent.
It is this failure to accord voting weight in proportion to the voting strength of each committeeman's constituency that is attacked by plaintiffs as violative of the "one-man, one-vote" principle.*fn4 Plaintiffs contend that in all county committee matters they are entitled in effect to the equivalent of "one Republican, one vote." Judge Dooling agreed, finding that "no reason appears which can justify the arbitrary voting weight result that is produced in the Kings County Republican County Committee by reason of the rule provision for additional members and the consequent shearing away of the weighted voting requirement," and holding that Art. 1, § 1 of the Rules of the Kings County Republican County Committee and that portion of § 12 of the Election Law relied on in the promulgation of that rule are invalid and cannot be given effect.
Before proceeding to the merits we must first consider the state's contention that since § 12 of the Election Law is statewide in its application Judge Dooling's declaration of unconstitutionality as applied could properly have been made only by a three-judge court pursuant to 28 U.S.C. § 2281, from which an appeal would lie directly to the Supreme Court rather than to ourselves. See Query v. United States, 316 U.S. 486, 490, 62 S. Ct. 1122, 86 L. Ed. 1616 (1942). Convocation of a three-judge court pursuant to § 2281, however, is required only where an "injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute" is sought. Although the complaint here requested injunctive relief in addition to declaratory relief, the plaintiffs appear to have abandoned their prayer for an injunction before any proceedings had been begun, and thereafter to have sought only a declaratory judgment,*fn5 which would not require the convening of a three-judge court, Mitchell v. Donovan, 398 U.S. 427, 430-431, 90 S. Ct. 1763, 26 L. Ed. 2d 378 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154-155, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), even though the complaint as originally drawn had sought injunctive relief, Rosario v. Rockefeller, 458 F.2d 649, 651-652 n. 2 (2d Cir. 1972).*fn6 Furthermore, we cannot avoid noting that our own three-judge review, while not by a district court, does serve to satisfy the essential purpose of § 2281, which was to prevent a single district judge from paralyzing the enforcement of a statewide law. Since the principles governing the case are clear, to remand for the convening of a three-judge court at this stage would amount to a waste of judicial manpower. See Astro Cinema Corp. v. Mackell, 422 F.2d 293, 298 (2d Cir. 1970).
Turning to plaintiffs' claim of denial of equal protection, the essential standard by which we are governed in determining whether the votes of county committeemen should be weighted in proportion to the number of Republican voters they represent is whether their function in voting is to select a nominee for public governmental office, as distinguished from conduct of the private affairs of their political organization. Although political parties are not immune from constitutional limitations merely because they are private groups, Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927); Nixon v. Condon, 286 U.S. 73, 83-85, 52 S. Ct. 484, 76 L. Ed. 984 (1932); United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941); Smith v. Allwright, 321 U.S. 649, 663-665, 64 S. Ct. 757, 88 L. Ed. 987 (1944); Terry v. Adams, 345 U.S. 461, 469, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); Gray v. Sanders, 372 U.S. 368, 374, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), conversely they are not required to apply the one-man, one-vote principle to votes taken in the course of their internal affairs. Lynch v. Torquato, 343 F.2d 370, 372 (3d Cir. 1965). The state is obligated to insure that the votes of constituents will be given equal weight only when the voting, whether directly by them or indirectly through their committeemen, is pursuant to "the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions," Hadley v. Junior College District, 397 U.S. 50, 54, 90 S. Ct. 791, 794, 25 L. Ed. 2d 45 (1970) (emphasis added). "All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote," Moore v. Ogilvie, 394 U.S. 814, 818, 89 S. Ct. 1493, 1495-1496, 23 L. Ed. 2d 1 (1969).
Applying these principles here, we hold that the Equal Protection Clause does not mandate the adoption by defendants of weighted voting in the performance of their major duty and function as committeemen, which is to conduct the internal management and business of the county committee. Whatever its reason for giving disproportionate weight to the vote of some committeemen in such matters -- whether it be to encourage them to build party strength in weaker districts or some other purpose -- when the county committee acts as only a private voluntary association of citizens, it is no more bound by the constitutional duty to weight committee members' votes according to the number of constituents represented by them than is any other private club. We therefore decline to extend the Equal Protection requirement of the Fourteenth Amendment to votes taken by the county committee in the conduct of its internal party affairs which have no direct relation to the electoral process. See Lynch v. Torquato, 343 F.2d 370, 372 (3d Cir. 1965). In 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 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. See Maxey v. Washington State Democratic Committee, 319 F. Supp. 673, 679 (W.D.Wash.1970).
To the extent that § 12 of the Election Law and Art. 1, § 1 of the Kings County Republican County Committee authorize disproportionate voting by committeemen in their infrequent performance of public electoral functions, these provisions clearly transgress constitutional bounds. In Gray v. Sanders, supra, the Supreme Court struck down a Georgia statute which allocated greater weight in general and primary elections to voters in underpopulated counties of the state. The Court there held that "once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote." 372 U.S. at 379, 83 S. Ct. at 808. The State of New York recognizes this obligation, as is evidenced by the provision for weighted voting, based on the number of enrolled party members represented by the county committeeman, in the first alternative under § 12. The irrational procedure authorized by the second alternative of the statute, however, flies in the face of this requirement. Despite the fact that Kings County has over 1,200 election districts containing substantial disparities in Republican Party membership, the statute arbitrarily limits the number of additional committee members from each election district to two. Under the statute, therefore, the most heavily Republican-populated election district in the county can never have more than twice as many committee members as the least populous district. Yet each committee member is given a vote of equal weight within the county committee.
The Court has recently reiterated that the rule of "one-man, one-vote" need not be applied with mathematical precision, but that any "deviations from population equality must be justified by legitimate state considerations." Abate v. Mundt, 403 U.S. 182, 185, 91 S. Ct. 1904, 1906, 29 L. Ed. 2d 399 (1971); Swann v. Adams, 385 U.S. 440, 444, 87 S. Ct. 569, 17 L. Ed. 2d 501 (1967). There can be no doubt that the state has a legitimate interest in permitting political parties to choose an election procedure whereby more than the minimum two county committeemen may be elected from each election district. Allowing a greater number of the party faithful to achieve the status of county committeemen may foster undivided party loyalty and labor on behalf of many, thus strengthening both the party and the political system itself. Nor can there be any dissent from the view that there is a justifiable interest in restricting the number of county committeemen to manageable size. However, no such interest is served by the present requirement that equal rather than weighted voting be followed when the additional-committeemen alternative is selected.*fn7 It is "a crazy quilt without rational basis." Baker v. Carr, 369 U.S. 186, 254, 82 S. Ct. 691, 730, 7 L. Ed. 2d 663 (1962) (Clark, J., concurring). Since deviations from the principle of "one-man, one-vote" can stand only where they "occur in recognizing certain factors that are free from any taint of arbitrariness," Roman v. Sincock, 377 U.S. 695, 710, 84 S. Ct. 1449, 1458, 12 L. Ed. 2d 620 (1964), it follows that the second alternative allowed by § 12 of the Election Law, as implemented by Art. 1, § 1 of the Kings County Republican County Committee Rules, is invalid as applied to those rare instances where the committee performs a public electoral function.*fn8
The order of the district judge is therefore affirmed insofar as it declares invalid the procedure by which votes taken in the Kings County Republican County Committee on matters "integral to the electoral process" are counted. To the extent that the district court's order applies to votes taken in the county committee on internal party matters or on matters only indirectly relating to the selection of party nominees, we reverse.
Affirmed in part and reversed in part.
Affirmed in part and reversed in part