Appeal from an order of the District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, denying a temporary injunction in an action brought by voters in the 21st Congressional District of New York which challenged the procedures for the nomination of candidates for a special Congressional election.
Friendly, Mulligan and Meskill, Circuit Judges.
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 Congressional 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 specifically described. The complaint alleged that nomination of candidates 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 injunction 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 registration 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 proportion 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 leaders 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 Democratic 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 Executive 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 Representatives.
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 Manufacturing Co., 177 U.S. 485, 494-95, 44 L. Ed. 856, 20 S. Ct. 708 (1900); Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 85 L. Ed. 189, 61 S. Ct. 229 (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 contested, 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, unless a ruling on the entire complaint, with its requests 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, 9 L. Ed. 2d 821, 83 S. Ct. 801 (1963), nor the holding of the election and the seating of the successful candidate, moots this appeal, see Gray v. Sanders, supra, 372 U.S. at 375-76; Moore v. Ogilvie, 394 U.S. 814, 816, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (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, 55 L. Ed. 310, 31 S. Ct. 279 (1911). See generally Dunn v. Blumstein, 405 U.S. 330, 333 n.2, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972); Rosario v. Rockefeller, 410 U.S. 752, 765 n.5, 36 L. Ed. 2d 1, 93 S. Ct. 1245 (1973); contrast Brockington v. Rhodes, 396 U.S. 41, 24 L. Ed. 2d 209, 90 S. Ct. 206 (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 additional 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 "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 [sic] consent to candidates 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 inapplicability of "one-man, one vote" to non-electoral functions of a county committee and recognized, without deciding, that a different 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 nomination 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 outside 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 candidates for special elections, Election Law §§ 6-114, 6-116, 6-156, renders the party selection process state action. See, e.g., Smith v. Allwright, 321 U.S. 649, 88 L. Ed. 987, 64 S. Ct. 757 (1944); Terry v. Adams, 345 U.S. 461, 97 L. Ed. 1152, 73 S. Ct. 809 (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, 9 L. Ed. 2d 821 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, 23 L. Ed 1 (1969), also dealt with nomination to statewide offices. On the other hand, Cousins v. Wigoda, 419 U.S. 477, 42 L. Ed. 2d 595, 95 S. Ct. 541 (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 National Convention," 419 U.S. at 483. In deciding 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.
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 Congressional election by a party executive committee, the committee was composed solely of representatives of counties within the congressional 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, 47 L. Ed. 2d 341, 96 S. Ct. 1147, 96 S. Ct. 1148 (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," 525 F.2d at 580; that "the interests they [political parties] 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 581; and that "a party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the ...