of its convention, regarding the seating of delegates." 409 U.S. 4, 92 S. Ct. at 2720. "* * * for nearly a century and a half the national political parties themselves have determined controversies regarding the seating of delegates to their conventions." 409 U.S. 5, 92 S. Ct. at 2720.
But the case here does not involve the internal determinations of a party as to the seating of delegates. Here the question presented is whether there will be a deviation from the equality of voting power at the Republican 1976 Convention and if so whether such is supported by legitimate justification. This is the one-man-one-vote question that is to be found in the process of a national political party convention which nominates candidates for President and Vice President of the United States. This was noted by Mr. Justice Pitney in his concurring opinion in Newberry v. United States, 256 U.S. 232, 285-286, 41 S. Ct. 469, 484, 65 L. Ed. 913 (1921), when he stated: "* * * every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations * * *. As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made." Such being the case, courts are competent to examine the matter of the equality of voting power of delegates at conventions and any deviations therefrom. State of Georgia v. National Democratic Party, 145 U.S. App. D.C. 102, 109, 447 F.2d 1271, 1278 (1971). The distinguishing subject matter of O'Brien furnishes no justification for this Court to hold that it is without jurisdiction in this case. Defendants' motion to dismiss will be denied.
Defendants' motion to strike from the supplemental complaint is without merit. Plaintiffs' allegations comparing mathematically representatives to the 1976 Republican Convention by regions are not immaterial or irrelevant to the claims asserted by plaintiffs. The motion to strike will be denied.
II. Cross-Motions for Summary Judgment
Plaintiffs have moved for a summary judgment on the grounds that the 1976 formula is constitutionally invalid. Defendants' motion for summary judgment, in addition to challenging this Court's jurisdiction and claiming that the subject matter of this action is not justiciable, contends that the 1976 formula is constitutionally sound. There are no genuine issues of material fact and this Court, having considered the pleadings, memoranda and affidavits as well as argument of counsel, finds that this case may be appropriately disposed of by summary judgment.
Defendants' motion for summary judgment will be denied. Hereinbefore this Court has found that it has jurisdiction and that the subject matter is justiciable. Defendants' contention that the 1976 formula does not violate the Constitution is without merit as will hereinafter be pointed out.
To understand plaintiffs' challenge of the validity of the 1976 formula, it is necessary to break down Rule 30 into several parts and to treat each separately.
1. The basic delegation at the 1976 Republican Convention will consist of 1605 delegates, or 72% of the total number of delegates. As has been pointed out, those delegates result from apportioning to the states 3 delegates for each of the 535 electoral college votes. At the 1972 Republican Convention 80% of the total delegates were selected under the 1972 formula on the basis of electoral college votes. This Court in its earlier opinion did not find the selection of the basic delegation to the 1972 Convention and the formula of apportionment of such delegation lacking in merit. 343 F. Supp. 168. Nor will the selection of the basic delegation to the 1976 Convention as provided by the 1976 formula infringe on the Equal Protection Clause. Bode v. National Democratic Party, 146 U.S. App. D.C. 373, 379-380, 452 F.2d 1302, 1308-1309 (1971). Nor do plaintiffs object to the use of the electoral college vote as the basis for part of the apportionment to the 1976 Convention. P. 34, Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment.
2. Of the remaining delegates to the 1976 Convention, 27% will be bonus delegates.
(a) Of that 27%, 11% will be allocated on a uniform basis of 4.5 delegates (rounded to 5) to each of the 49 states which cast its electoral vote for the 1972 Republican nominee for President. The 1972 formula allocated as a bonus 6 delegates to each of the 43 states which cast its electoral vote for the Republican nominee for President in 1968 or, in that or a subsequent election, elected a Republican Senator or Governor or Republican majority to the state's delegation to the House of Representatives of the Congress. In the prior opinion, this Court held that the allocation of the 6 bonus delegates to states qualifying for them did not meet constitutionally permissible standards in that such allocation under the 1972 formula violated the Equal Protection Clause of the Fourteenth Amendment. 343 F. Supp. 168, 177. The 1976 formula in allocating the 4.5 bonus delegates is essentially the same in this respect as the invalid 1972 formula and is equally invalid.
This conclusion was not reached without due consideration having been given to the some eighteen affidavits and statistical data submitted by defendants in support of their motion for summary judgment. All of the affiants are persons experienced in the working of the political process and particularly in the functioning of the Republican Party. Some now hold and others have held high government offices. Among the other affiants were professors of political science as well as officials of the Republican Party. The affidavits recorded the history of the Party's efforts over the years in developing rules for the selection of delegates to the Party's National Conventions. Some of the affidavits treated with the various interests represented at the Conventions through the delegates as well as efforts made to accommodate often conflicting interests. Some affiants expressed the view that the apportionment of delegates was a matter for the Party and not the courts. But notwithstanding the information furnished and opinions stated by the affidavits and accompanying statistics, the fact remains that the system of allocating uniform bonus delegates as provided in the 1976 formula violates the Equal Protection Clause.
(b) The 1976 formula also allocates 50 delegates, or 2% of the total delegates, to states on the basis of 1 additional delegate to each state which in November, 1972, or at any subsequent election held prior to January 1, 1976, elected a Republican Senator, a Republican Governor or Republicans to at least half of the state's seats in the United States House of Representatives. Again this provision is essentially the same as that in the 1972 formula for allocating uniform bonus delegates. The latter formula provided that any state, which did not cast its electoral vote in 1968 for the Republican nominee for President, would nevertheless be allocated 6 bonus delegates if at the 1968 election or any subsequent election, prior to the 1972 Convention, the state elected a Republican Senator or a Republican Governor or a Republican majority to the state's membership in the House of Representatives. The 1976 formula contains the same infirmity as was found in the 1972 formula. Both violate the Equal Protection Clause. 343 F. Supp. 168, 177.
(c) When this Court heretofore declared unconstitutional the allocation of a uniform number of bonus delegates as provided by the 1972 formula, it also declared:
That a bonus system which would reward states producing Republican victories in certain specified elections, by allocating a number of delegates reasonably proportionate to the state's electoral college votes or the number of Republican votes which produced the victory, or some combination of these factors, would have a constitutionally rational basis. [ 343 F. Supp. at 177.]
The 1976 formula apportions 312 delegates, or 14% of the total delegates, to states on the basis of 60% of the electoral vote of each of the 49 states which cast its electoral vote for the 1972 Republican nominee for President. Thus, in this respect, the 1972 Republican Convention conformed the 1976 formula with this Court's earlier opinion and order.
But plaintiffs challenge this apportionment of bonus votes as being unreasonable and not related to the actual Republican votes cast in 1972 for the Republican nominee for President. They base their case principally on statistical data and conclusions they draw therefrom. Thus, for example, they would show that based on the total number of Republican votes cast in the eight most populated states compared to those cast in the six least populated states the former would be underrepresented in the 1976 Convention while the latter would be greatly overrepresented. And they argue that Massachusetts, the only one of the 50 states which did not cast its electoral vote for the 1972 Republican nominee for President, would not only be grossly underrepresented in the 1976 Convention but it in fact would be penalized.
But plaintiffs' arguments overlook the difficulty in determining just what is the voting strength of a political party in any state. It is common knowledge that in modern day political life in the United States, the individual voter in large part is not wed to any political party. There is what has become known as the political independent who disavows affiliation with any political party and casts his vote for the nominee or issue or both. In fact, in 15 states there is no registration of voters by party.
The results of the 1972 national election bear out the conclusion that the American voter picks and chooses from among candidates and political parties. A few examples will suffice. While 49 states cast their electoral votes for the Republican nominee for President, at the same time the voters in 16 of the 33 states voting for United States Senators elected Democrats. Out of the 18 states electing Governors, the voters in 11 states chose Democrats. In California 23 of the 43 House members elected were Democrats. 19 of the elected 24 Texas members of the House of Representatives were Democrats. And in Pennsylvania the voters chose 13 Democrats and 12 Republicans as House members. Florida voters sent 11 Democrats and 4 Republicans to the House of Representatives as a result of the November 1972 election.
While the relative strength of the two major parties in the total number of votes cast in 1972 may be questioned in light of the changing patterns in the choice of candidates for the several offices, there can be no doubt of the strength of the Republican Party when measured by the electoral college vote. It was the electoral vote of 49 states that elected the 1972 Republican nominee for President. And it was on that vote that the 1976 formula would apportion some of the bonus delegates. Massachusetts, contributing nothing to the Republican strength by this ultimate test, cannot be said to be penalized by being denied such bonus delegates.
Plaintiffs' challenge to such apportionment of bonus delegates is unpersuasive and, therefore, does not alter this Court's earlier conclusion that a system which rewards states producing Republican victories, by allocating a number of delegates reasonably proportionate to a state's electoral vote, has a constitutionally rational basis.
3. The 1976 formula allocates 14 delegates to the District of Columbia, 8 delegates to Puerto Rico, 4 delegates to the Virgin Islands and 4 to Guam. Plaintiffs assert that in each case the allocation is arbitrary and capricious and results in overrepresentation.
Under the 1972 formula, 9 delegates were allocated to the District of Columbia. Plaintiffs challenged that allocation and sought to have it declared impermissible. This Court refused to do so. 343 F. Supp. at 177. The increase in the District of Columbia delegation from 9 to 14 delegates is in keeping with the Republican Party's decision to enlarge the 1976 Convention by increasing the delegates to 2242, or two-thirds again the size of the 1972 Convention. The increase in the number of the delegates from the District of Columbia in 1976 will be in keeping with the enlargement of the Convention that year. This Court will not disturb that allocation.
In the earlier opinion, this Court upheld the 1972 formula allocation of delegates to the Territories. 343 F. Supp. at 178. The increase in the number of delegates in 1976 from the Territories is appropriate in view of the increase in the total number of delegates at that Convention.
In view of the foregoing, defendants' motion for summary judgment that their 1976 formula is constitutionally sound will be denied insofar as it embraces the uniform allocation of bonus delegates. Plaintiffs' motion for summary judgment will be granted in part in that this Court will declare the uniform allocation of bonus delegates as violating the Equal Protection Clause of the Constitution and will enjoin defendants from allocating bonus delegates on such a uniform system. In all other respects plaintiffs' motion for summary judgment will be denied, including the conditioning of the effectuation of any rule which may be adopted by defendants for the apportionment of delegates to the 1976 Convention upon approval by this Court.