the basis of Republican victories in certain specified election contests.
Plaintiffs attack primarily the allocation of 258 delegates under the bonus system described above. They contend that the apportionment of six bonus delegates to each of the states qualifying for them under the 1972 formula discriminates against the more populous states. They have submitted in affidavits several tables by which they attempt to demonstrate the extent to which the more populous states are underrepresented by the 1972 formula.
An examination of those tables reveals that an application of the 1972 formula will have the following results:
1. Apportionment of six bonus delegates to the forty-three states qualifying for them under the 1972 formula will provide a one hundred percent increase in the delegations of Alaska, Delaware, Nevada, North Dakota, Vermont and Wyoming, but only a 6.7% increase in the California delegation, a 7.3% increase in the New York delegation, and an 11.5% increase in the Illinois delegation.
2. The same bonus system would allot 37% of the 1972 delegates to the eight most populous states,
which have 48.7% of the total national population under the 1970 census, 51.8% of the total vote cast for the Republican Presidential nominee in 1968, and 42.7% of the electoral college votes; whereas 63% of the 1972 delegates would be apportioned to the remaining forty-two states, the District of Columbia and the Territories, which have 51.3% of the total national population under the 1970 census, 47.9% of the total vote cast for the Republican Presidential nominee in 1968, and 57.3% of the electoral college votes.
3. Plaintiffs do not contend that apportionment of delegates should be solely on the basis of Republican party strength
or voter turnout in previous elections. For purposes of comparison, however, if the delegates apportioned to each state under the 1972 formula represented votes cast in that state for the Republican presidential nominee in 1968, the 1972 formula would give the same representation to one Republican voter in Alaska as it would to eleven Republican voters in Illinois, California or New York; and the same representation to one Republican voter in Mississippi or Wyoming as to five Republican voters in Illinois, California or New York.
5. Similarly, plaintiffs do not contend that apportionment of delegates should be solely on the basis of population or of electoral college votes in each state.
For purposes of comparison, however, with a formula which would be based solely on population, the apportionment of delegates under the 1972 formula results in deviations in representation among the states as great as eight to one.
A comparison of the 1972 formula with a formula based solely on 1972 electoral college votes indicates that the 1972 formula underrepresents the eight most populous states by seven to twenty percent or an aggregate of seventy five delegates, while Alaska, Delaware, Nevada, North Dakota, Vermont and Wyoming are each overrepresented by 71.4%; and Hawaii, Idaho, Montana, New Hampshire, New Mexico, South Dakota and Utah are each over-represented by 40%.
Plaintiffs' challenge in this action to the constitutionality of the 1972 formula for apportionment of delegates to the Republican national convention is based on two recent decisions in this jurisdiction and on the reapportionment decisions of the Supreme Court cited therein. State of Georgia et al. v. National Democratic Party et al., 145 U.S. App. D.C. 102, 447 F.2d 1271, cert. den. 404 U.S. 858, 92 S. Ct. 109, 30 L. Ed. 2d 101 (1971); Bode et al. v. National Democratic Party et al., D.C. Cir., 146 U.S. App. D.C. 373, 452 F.2d 1302 (1971), cert. den. 404 U.S. 1019, 92 S. Ct. 684, 30 L. Ed. 2d 668 (1972).
In Georgia, the plaintiffs challenged the apportionment formulas for the 1972 national conventions of both the Democratic and Republican parties as violative of the Equal Protection clause of the Fourteenth Amendment to the Constitution because neither formula was based solely on population in conformity with a one man, one vote standard. In Bode, the plaintiffs challenged the apportionment formula for the 1972 Democratic national convention as violative of the same constitutional provision because that formula was not based solely on demonstrated party strength measured by an average of the number of votes cast for the Democratic presidential nominee in the three immediately preceding presidential elections. Although the Court in both Georgia and Bode rejected the exclusive bases for reapportionment put forth by the plaintiffs in those cases,
the Court did find that there is sufficient state involvement in the selection of delegates to national political conventions to subject the acts of those conventions to the constitutional standard of equal protection of the laws. As the Court stated in Georgia :
[If] the action of the individual state parties in selecting delegates to participate in the presidential-nominating process constitutes state action, the collective activity of all the states' delegates at the national convention can be no less readily classified as state action. 447 F.2d at 1275.