APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.
Gibbons, Circuit Judge. Aldisert, Circuit Judge, Concurring. Rosenn, Circuit Judge, Dissenting.
This appeal involves, but unfortunately does not resolve, the conflict between two constitutionally protected interests; the right of freedom of association for the achievement of desired political ends -- protected by the first amendment -- and the right to have one's vote in an election for public office given equal weight with that of other voters -- protected by the equal protection clause of the fourteenth amendment. The order appealed from, an injunction issued by a single district judge on a motion for summary judgment, adjudged that certain internal rules of the Republican State Committee of Delaware for the allocation of delegate seats in that party's state convention violated the equal protection clause of the fourteenth amendment and directed the party to adopt new internal rules consistent with that clause. Although the order appealed from was in form an injunction against the operation of the party's internal rules, those rules implicated state action only by virtue of 15 Del. C. §§ 101, 3301(c) and 3116, and the injunction is against those statutes as applied to the Republican State Committee. We conclude (1) that the injunction issued was improvidently granted, (2) that any proper injunction may be virtue of 28 U.S.C. § 2281 be beyond the power of a single district judge, and (3) that the case should not have gone forward without giving notice to the governor and attorney general of Delaware as required by 28 U.S.C. § 2284(2). The three-judge court issue is so closely interrelated with the merits of the conflicting constitutional claims that a discussion of those claims is required.
I. THE COMPLAINT AND MOTION
The plaintiffs are four registered Republican voters residing in the Second Convention District, suburban New Castle County, who seek, for themselves and other Republican voters similarly situated, relief pursuant to 42 U.S.C. § 1983, and Rule 23(a) and (b) Fed. R. Civ. Proc., for the claimed dilution of their equal voting rights in the Republican party primary election for nominees for statewide office. The prayer for relief is for:
"(1) A declaration that 15 Del. C. Sections 101 and 3301(c), as construed and applied by the State Republican Party and in accordance with its custom and usage, are unconstitutional.
(2) A temporary and permanent injunction prohibiting defendants from allocating among the four state Republican convention district delegates to Republican State Conventions and Republican National Conventions in any manner other than one which results in each such delegate representing an equal number of registered Republican voters.
(3) An affirmative Order directing the defendants henceforth to allocate delegates to Republican State Conventions and Republican National Conventions in a manner consistent with the principle of 'one-man-one vote ', such that each delegate to such conventions represents an equal number of registered Republican voters; and, further, that all further voting by delegates elected to the 1972 Republican State Convention be weighted in such a way as to reflect the number of registered Republican voters represented by the delegate casting the vote.
(4) Such other and further relief as may be necessary, just, and proper."
The undisputed facts alleged in the complaint and confirmed by affidavits filed in support of the motion for summary judgment, are set forth fully in the opinion of the district court.*fn1 The Republican Party of Delaware under its rules is organized into four convention districts: The City of Wilmington; New Castle County outside Wilmington (where the plaintiffs reside); Kent County; and Sussex County. Each convention district is allotted 30 delegates. An additional 100 delegates are allotted to districts on the basis of one delegate for each 1% of the statewide Republican vote which was cast by voters in that district during the last Presidential election. There is no question that this formula provides disproportionate convention delegate strength for districts other than suburban New Castle County which has the largest Republican registration.
II. THE STATUTORY ARRANGEMENTS FOR PRIMARIES
Delaware, like the other 49 states,*fn2 has for many years provided for publicly financed primary elections for the nomination of candidates at the general election running with party designations. Prior to 1969 the State by statute defined "Party" as simply "any political party, organization or association." It defined "Primary election" as
"an assemblage of voters who are members of any political party, as defined in this section, duly convened for the purpose of nominating a candidate or candidates for public office, or for the purpose of selecting delegates or representatives to any political convention thereafter to be held for the purpose of selecting candidates, which at the last general election before the primary election polled at least 10% of the entire vote of this State, or any division or sub-division thereof, for which nominations were made." 15 Del. C. § 3101 (amended by 57 Del. Laws ch. 181 § 1).
Any such party simply notified the Department of Elections of its desire to hold a primary election. 15 Del. C. § 3108. Prior to 1969 the method of becoming a party candidate was both simple, and from the point of view of state involvement, neutral.
"Any person desiring to be voted for as a candidate for nomination at any primary election shall notify the County Committee of which he is a member, in writing at least 15 days before such primary election is held." 15 Del. C. § 3107 (amended by 57 Del. Laws ch. 241 § 5; 57 Del. Laws ch. 567 § 18C).
At one time the political party caused ballots to be printed which included the names of all self-designated candidates. See 15 Del. C. § 3124 (amended by 49 Del. Laws ch. 276 § 3). Since 1953, however, the Department of Elections has prepared the ballots. But because prior to 1969 mere notice of intention to become a candidate sufficed for a candidate to obtain a place on the primary ballot, the internal party organization had no legal though perhaps a significant practical effect on the ultimate party nominee. Thus prior to 1969 there was no legally significant tension between a Delaware political party's right to determine its own makeup and the one man one vote principle. In 1969, however, the legislature (one may presume at the invitation of the major parties) intruded into the internal affairs of political parties in a significant way by amending 15 Del. C. § 3107 with respect to the manner of becoming a primary election candidate for statewide office, and by the addition of 15 Del. C. §§ 3116 and 3301(c) imposing new legal obligations on political parties. Section 3301(c) provides that no candidate for the office of Elector of President and Vice President, United States Senator, Representative in Congress or State Officer elected statewide may be deemed nominated for the general election unless he has either received more than 50% of the eligible delegate vote at a party nominating convention or has received a majority of the votes cast in a party primary election. The section provides further:
"No such state nominating convention shall have completed its business relative to such nominations until such time as 1 nominee for each of the aforesaid offices shall have received a vote greater than 50% of the total number of eligible delegate votes ...