Before: PRATT, Circuit Judge; WEINSTEIN, Chief District Judge; and PLATT, District Judge.
This action has its genesis in the January 1984 election of the chairperson of the Executive Committee of the Kings County Democratic Committee.Plaintiffs, both nominated for the position, lost the election to Howard Golden, a defendant in this action. Plaintiffs' claim pfocuses upon certain amendments to the rules of the Kings County Democratic County Committee adopted on October 6, 1982.
For many years prior to 1982, the Executive Committee had been made up of state committeemen, who were elected by members of the Democratic party in Kings County, the chairperson, secretary, treasurer and assistant treasurer of the County Committee, who were appointed by the County Committee; and the chairpersons of all standing committees of the Executive Committee, who were appointed by the chairperson of the Executive Committee. Under the old rules certain key functions, including organization of the Executive Committee, election of officers of the Executive Committee, filling of vacancies in the Executive Committee, authorizing nonparty members to run as Democrats for public office, and filling vacancies in nominations for public office, were voted upon by only those members of the Executive Committee who were also members of the state committee. By the 1982 amendments, this restriction on voting was eliminated so that those matters could be voted upon by the entire Executive Committee, which included the state committeemen plus the 19 other members who were appointed either by the chairman of the Executive Committee or by the County Committee.
Plaintiffs claim that these amendments as to voting in the Executive Committee must be submitted to the Attorney General of the United States for preclearance pursuant to § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, because they constitute a "standard, practice, or procedure with respect to voting" within the meaning of § 5. Defendants contend, on the other hand, that the rule changes do not come within the purview of § 5 because they merely affect the internal operating procedure of the Executive Committee and are not concerned with any public electoral functions of the party.
After the complaint was filed, this three-judge district court was convened pursuant to 28 U.S.C. § 2284 and 42 U.S.C. § 1973c. Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Because affidavits have been submitted and considered by the court, we treat the motion as one for summary judgment. Fed. R. Civ. P. 56. After argument of the motion, the parties were given additional time in which to submit supplemental materials. Having reviewed all the submitted materials and concluding that there is no genuine issue as to any material fact, we deny defendants' motion and, despite the absence of a cross-motion for judgment, grant a summary delcaratory judgment to plaintiffs. See 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720 at 29-33 and n.20 (1983).
Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, in relevant part, provides:
[W]henever a [S]tate or political subdivision [covered by Section 4] shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, * * * such State or subdivision may institute an action in United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, * * * and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, or standard, or procedure. Provided, that such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if [it] has been submitted * * * to the Attorney General and the Attorney General has not interposed an objection within sixty days * * *.
The impact of this statute was applied to some actions of a political party by 28 C.F.R. § 51.7:
Certain activities of political parties are subject to the preclearance requirement of Section 5. A change affecting voting effected by a political party is subject to the preclearance requirement: (1) If the change relates to a public electoral function of the party and (2) if the party is acting under authority explicitly or implicitly granted by a covered jurisdiction or political subunit subject to the preclearance requirement of Section 5.
While the complaint seeks broad based relief, plaintiffs' claim was substantially limited at the hearing on the motion and in the posthearing submissions. No longer do plaintiffs seek to depose the chairman of the Executive Committee or undo any past actions taken by the Executive Committee. Instead, plaintiffs seek a declaratory judgment that the 1982 rule changes, which for certain issues expanded the Executive Committee's eligible voters from only the state committeemen to the entire membership, including those appointed by the committee chairman, violate the voting rights act because of their racially discriminatory effect. It is not disputed that a substantial number of the elected state committeemen were black, but that none of the appointed members of the Executive Committee were black. Consequently, plaintiffs argue, before the 1982 rule changes could be properly implemented, preclearance through the Attorney General's office was required.
We note in passing that the "trigger" for this action was the election of the chairman of the Executive committee by a group that plaintiffs imply was, or could have been, "packed" by the chairman's own appointments. In fact, however, a majority of the elected state committeemen, as well as a majority of the appointed members, voted for the chairman.
Among the issues we must consider are (1) jurisdiction, (2) merits of plaintiffs' claim, and (3) the ...