LaRouche, Lyndon H. v. Fowler, Donald L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 1997 Decided August 28, 1998

No. 96-7191

Lyndon H. LaRouche, Jr., et al.,

Appellants

v.

Donald L. Fowler, Individually and as Chairman Democratic

National Committee, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01816)

James F. Schoener argued the cause for appellants, with
whom Theo Mitchell, Odin P. Anderson, James E. Wilson,
Jr. and Nina J. Ginsberg were on the briefs.

John C. Keeney, Jr. argued the cause for appellees, with
whom Charles A. Rothfeld, Mary Eva Candon, John Hardin

Young, Steven Ross and Richard A. Halloran were on the
brief. Scott M. Deutchman entered an appearance.

Before: Silberman, Sentelle and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: This case arises out of Lyndon H.
LaRouche, Jr.'s unsuccessful quest for the Democratic Par-
ty's 1996 nomination for President. The Party's application
of certain of its internal rules deprived LaRouche of two
delegates to the 1996 Democratic National Convention. La-
Rouche contends that application of those rules violated the
Voting Rights Act, 42 U.S.C. ss 1971, 1973-1973bb, because
the Party did not submit them for judicial or administrative
preclearance. He also contends that application of the rules
violated his rights under the Constitution. With a limited
exception, we conclude that we are without jurisdiction to
decide LaRouche's Voting Rights Act claims and therefore
remand them for the convening of a three-judge district
court. We affirm the dismissal of LaRouche's constitutional
claims.

I

LaRouche declared his candidacy for the Democratic Par-
ty's 1996 nomination for President on August 7, 1993. On
March 12, 1994, the Democratic National Committee (DNC)
adopted its Delegate Selection Rules for the 1996 Democratic
National Convention. Rule 11(K) provided:

For purposes of these rules, a Democratic candidate for
President must be registered to vote, must be a declared
Democrat, and must, as determined by the Chairman of
the Democratic National Committee, have established a
bona fide record of public service, accomplishment, public
writings and/or public statements affirmatively demon-
strating that he or she has the interests, welfare and
success of the Democratic Party of the United States at
heart and will participate in the Convention in good faith.

In January 1995, the DNC adopted the "Call to the 1996
Democratic National Convention," which in Article VI defined
"presidential candidate" as:

any person who, as determined by the National Chair-
person of the Democratic National Committee, has ac-
crued delegates in the nominating process and plans to
seek the nomination, has established substantial support
for his or her nomination as the Democratic candidate for
the Office of the President of the United States, is a bona
fide Democrat whose record of public service, accom-
plishment, public writings and/or public statements affir-
matively demonstrates that he or she is faithful to the
interests, welfare and success of the Democratic Party of
the United States, and will participate in the Convention
in good faith.

By the spring of 1996, LaRouche had qualified for a
position on the Democratic Party primary ballot in numerous
states. On January 5, 1996, however, before the first primary
was held, DNC Chairman Donald L. Fowler issued a letter
addressed to the chairpersons of all state Democratic Party
organizations. Expressly exercising his authority under Rule
11(K) and Article VI (hereinafter "Rule 11(K)" or "the
Rules"), Fowler determined that:

Lyndon Larouche [sic] is not a bona fide Democrat and
does not possess a record affirmatively demonstrating
that he is faithful to, or has at heart, the interests,
welfare and success of the Democratic Party of the
United States. This determination is based on Mr. La-
rouche's expressed political beliefs, including beliefs
which are explicitly racist and anti-Semitic, and other-
wise utterly contrary to the fundamental beliefs ... of
the Democratic Party and ... on his past activities
including exploitation of and defrauding contributors and
voters.

Following this determination, Fowler instructed the state
parties that:

Accordingly, Mr. Larouche [sic] is not to be considered
a qualified candidate for nomination of the Democratic

Party for President.... Therefore, state parties ...
should disregard any votes that might be cast for Mr.
Larouche, should not allocate delegate positions to Mr.
Larouche and should not recognize the selection of dele-
gates pledged to him at any stage of the Delegate
Selection Process.

Further, Mr. Larouche will not be entitled to have his
name placed in nomination for the office of President at
the 1996 Democratic National Convention. No certifica-
tion of a delegate pledged to [him] will be accepted by
the Secretary of the DNC....

Neither the Rules nor the Fowler letter were submitted to
the Attorney General or a district court for preclearance
under section 5 of the Voting Rights Act, 42 U.S.C. s 1973c.

LaRouche was not excluded from any primary ballot be-
cause of Fowler's letter. He appeared on Democratic Party
primary ballots in twenty-six states, receiving a total of
597,853 votes. He alleges 1 that under the otherwise opera-
tive party rules, he won sufficient support in Louisiana's
Democratic Party primary and in Virginia's Democratic Party
caucuses to be entitled to one national convention delegate
from each state. The respective state party chairpersons,
however, carried out the instructions in the Fowler letter and
ruled that LaRouche was not entitled to the two delegates.
In addition, LaRouche asserts that local precinct delegates
pledged to him were excluded from Texas Democratic Party
caucuses. And although Arizona's Secretary of State certi-
fied LaRouche's name for that State's "presidential prefer-
ence election," the Arizona State Democratic Party filed a
lawsuit in state court that resulted in the cancellation of that
election.2 Finally, LaRouche asserts that the District of

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1 Because the district court dismissed LaRouche's complaint for
failure to state a claim, we must deem the allegations of the
complaint to be true. See Goosby v. Osser, 409 U.S. 512, 521 n.7
(1973).

2 Arizona's state-run "presidential preference election" had
been scheduled for February 27, 1996, while DNC rules precluded
participation in primaries before March 5. The Democrats in

Columbia Democratic Party refused to accept the candidacy
of delegates pledged to him.

On August 2, 1996, less than one month before the Demo-
cratic National Convention, LaRouche, would-be LaRouche
delegates, and LaRouche supporters who either voted for
him in primaries and caucuses or assertedly were barred
from doing so (collectively referred to in this opinion as "La-
Rouche") filed suit in the District Court for the District of
Columbia against Fowler, the DNC, and state Democratic
Party officials and organizations in Arizona, the District of
Columbia, Louisiana, Texas, and Virginia (collectively re-
ferred to in this opinion as "the DNC"). The suit alleged,
inter alia, the failure to pre-clear changes in voting proce-
dures in violation of the Voting Rights Act, as well as the
violation of rights guaranteed by the Constitution and 42
U.S.C. s 1983. LaRouche sought compensatory and puni-
tive damages, declarations that the DNC rules and Fowler's
actions were void for lack of preclearance and were uncon-
stitutional, and injunctions ordering defendants to seat his
delegates at the convention and prohibiting the DNC from
reenacting Rule 11(K) or any similar rule for future conven-
tions. LaRouche also sought the appointment of a three-
judge district court to hear the case, pursuant to section 5
of the Voting Rights Act and 28 U.S.C. s 2284.

On August 15, 1996, the district court denied the applica-
tion for a three-judge court and dismissed the entire com-
plaint, with prejudice as to all defendants, pursuant to Fed.
R. Civ. P. 12(b)(6). The court ruled that "[n]ot only has the
U.S. Supreme Court held that the national political parties
possess the right under the First Amendment to 'identify'

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Arizona accordingly planned their own party-run primary for March
9 and sued to block the state-run primary. Despite LaRouche's
objections, an Arizona state court blocked the state primary, noting
in the process that the DNC had found LaRouche not to be a
qualified candidate for the Democratic Party nomination. See
Arizona State Democratic Comm. v. Secretary of State, No. CV
96-00909, slip op. at 5 (Ariz. Super. Ct., Maricopa Co. Feb. 1, 1996)
(Joint Appendix ("J.A.") at 346).

those who constitute their 'association' and to 'limit the
association to those people only,' the only defendants able to
afford the relief sought, viz., Chairman Fowler and the DNC,
are neither 'covered jurisdictions' nor agents thereof under
... the Voting Rights Act and, thus, not subject to its
'preclearance' requirements."

II

Before reaching the merits of LaRouche's claims, we must
first consider defendants' contention that those claims are
moot because the 1996 election is over. LaRouche does not
dispute the mootness of his specific request for an injunction
ordering the seating of his delegates at the 1996 Convention,
but contends that his underlying causes of action continue to
present a live controversy. He is plainly correct as to his
claims under the Constitution and s 1983, because his request
for damages on those claims saves them "from the bar of
mootness." Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 8 (1978). Although the DNC contends that a claim for
damages can keep a controversy alive only if that claim "is
not so insubstantial or so clearly foreclosed by prior decisions
that th[e] case may not proceed," Appellees' Br. at 14 (quot-
ing Memphis Light, 436 U.S. at 9), as the discussion in Part V
of this opinion makes clear, those claims are neither insub-
stantial nor foreclosed by prior decisions.3

We also agree with LaRouche that both these and his other
claims are saved from mootness because the situation is
"capable of repetition, yet evading review." This exception to
the mootness doctrine applies if: "(1) the challenged action

__________
3 Although in Part V we assume without deciding that La-
Rouche is correct in his contention that the conduct he challenges
constitutes state action, Part V.A makes clear that contention is
neither "insubstantial" nor "clearly foreclosed by prior decisions."
We also note that the quoted phrase from Memphis Light appears
to describe the test for subject matter jurisdiction rather than a
requirement for avoiding mootness. Cf. Bell v. Hood, 327 U.S. 678,
682-83 (1946) (holding that claims may be dismissed for want of
jurisdiction if "wholly insubstantial and frivolous").

[is] in its duration too short to be fully litigated prior to its
cessation or expiration[;] and (2) there [is] a reasonable
expectation that the same complaining party [will] be subject
to the same action again...." Spencer v. Kemna, 118 S. Ct.
978, 988 (1998) (citation and internal quotation omitted); see
Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990).
Challenges to rules governing elections are the archetypal
cases for application of this exception. See, e.g., Norman v.
Reed, 502 U.S. 279, 287-88 (1992); Rosario v. Rockefeller, 410
U.S. 752, 756 n.5 (1973); Moore v. Ogilvie, 394 U.S. 814, 816
(1969); see also Branch v. FCC, 824 F.2d 37, 41 n.2 (D.C. Cir.
1987) ("Controversies that arise in election campaigns are
unquestionably among those saved from mootness under the
exception for matters 'capable of repetition, yet evading re-
view.' "); Stewart v. Taylor, 104 F.3d 965, 969 (7th Cir. 1997)
("[E]lections are routinely too short in duration to be fully
litigated, and there is a reasonable expectation that the same
party would be subjected to the same action again."); New
Hampshire Right to Life Political Action Comm. v. Gardner,
99 F.3d 8, 18 (1st Cir. 1996).

Under the "evading review" prong of this exception, we
consider "whether the challenged activity is by its very na-
ture short in duration, so that it could not, or probably would
not, be able to be adjudicated while fully live." Conyers v.
Reagan, 765 F.2d 1124, 1128 (D.C. Cir. 1985) (internal quota-
tions omitted). The DNC contends that LaRouche had ample
time to seek judicial review because Rule 11(K) was adopted
in March 1994, over two years before the convention. In
support, it cites our statement in National Black Police Ass'n
v. District of Columbia that " 'both Supreme Court and
circuit precedent hold that orders of less than two years'
duration ordinarily evade review.' " 108 F.3d 346, 351 (D.C.
Cir. 1997) (quoting Burlington N.R.R. Co. v. Surface Transp.
Bd., 75 F.3d 685, 690 (D.C. Cir. 1996)). This two-year mark,
however, serves only as a rule-of-thumb; we did not intend it
to exclude periods of slightly greater duration, as in this case.

Moreover, the date of the adoption of Rule 11(K) is not the
critical date. Indeed, had LaRouche sued as soon as the

DNC adopted the rule, his claims might well have been
declared unripe, as the rule did not mention LaRouche at all.
The Party gave no indication that it would apply the rule to
LaRouche until January 1996, just seven months prior to the
convention, a time certainly too short to permit district court
challenge and appellate review. See Burlington N.R.R. Co.,
75 F.3d at 690.

LaRouche's challenge also satisfies the "capable of repeti-
tion" prong of the exception, as "there [is] a reasonable
expectation that the same complaining party [will] be subject
to the same action again...." Spencer, 118 S. Ct. at 988
(citation and internal quotation omitted). LaRouche has
sought the Democratic Party's presidential nomination in the
past five elections. He received over half a million votes
during the 1996 primaries. And on July 18, 1997, he an-
nounced his "intention to campaign for the Year 2000 Demo-
cratic Party presidential nomination." Addendum to Appel-
lants' Br. at 57.

Defendants contend that it is "pure speculation" whether
the DNC will adopt a rule similar to Rule 11(K) for the 2000
Convention, or whether the DNC chair will apply any such
rule to LaRouche. But the Party "has not disavowed" that it
will do so. Cf. Morse v. Republican Party, 116 S. Ct. 1186,
1213 n.48 (1996) (Stevens, J.) (fact that Virginia Republican
Party "ha[d] not disavowed" practice of imposing a delegate
filing fee for its nominating convention was important factor
in concluding that controversy was capable of repetition, yet
evading review). Moreover, given the party-defining impor-
tance the DNC's briefs attach to Rule 11(K), there is at least
a "reasonable expectation" that it or something close to it will
be in place for the next convention. And given the vehe-
mence of DNC Chairman Fowler's attack on LaRouche's
credentials as a "bona fide Democrat," there certainly is a
"reasonable expectation" that future Party chairs will see
matters the same way.

Finally, we reject defendants' argument that Keane v.
National Democratic Party, 475 F.2d 1287 (D.C. Cir. 1973),
establishes that the "capable of repetition, yet evading re-

view" exception does not apply to "a post-convention ...
challenge to credentials of party-selected delegates to a Dem-
ocratic National Convention." Appellees' Br. at 10. Keane
did conclude that by 1973, a challenge to the exclusion of
delegates from the 1972 Democratic National Convention was
moot to the extent it involved the right to be seated at the
convention (although not moot to the extent it involved the
right of competing delegates to post-convention representa-
tion in national party matters). See Keane, 475 F.2d at 1288.
But while the dissenting judge protested that the case was
capable of repetition, the majority did not mention the excep-
tion at all. Indeed, nothing in the majority opinion suggests
that the delegates in Keane could have demonstrated, as
LaRouche can, that they reasonably expected to be subjected
to the same action again.

Accordingly, we conclude that Keane does not preclude
application of the capable of repetition exception to the facts
of this case. To the contrary, because "[t]here [is] every
reason to expect the same parties to generate a similar,
future controversy subject to identical time constraints if we
should fail to resolve the ... issues that arose" in 1996, we
reject defendants' effort to raise the bar of mootness. See
Norman, 502 U.S. at 288 (holding that Illinois court's decision
voiding use of party label in past election was capable of
repetition, yet evading review).

III

We turn next to defendants' contention that challenges to
party delegate-selection rules constitute nonjusticiable politi-
cal questions. Although this court twice before has rejected
that contention, see Bode v. National Democratic Party, 452
F.2d 1302, 1305 (D.C. Cir. 1971); Georgia v. National Demo-
cratic Party, 447 F.2d 1271, 1276-78 (D.C. Cir. 1971), the
DNC argues that O'Brien v. Brown, 409 U.S. 1 (1972),
subsequently established that all disputes over internal party
rules are nonjusticiable. But O'Brien did not set forth such a
broad rule; indeed, O'Brien did not even decide the applica-

bility of the nonjusticiability doctrine to the case then before
the Court.

In O'Brien, the Supreme Court considered challenges to
judgments of this court passing upon the constitutionality of
delegate-seating determinations made by the Democratic Par-
ty's Credentials Committee in advance of the 1972 national
convention. The Court noted that "these cases involve claims
of the power of the federal judiciary to review actions hereto-
fore thought to lie in the control of political parties," that
"[h]ighly important questions are presented concerning justi-
ciability," and that it "entertain[ed] grave doubts as to the
action taken by the Court of Appeals." Id. at 4-5. As the
dispute had not reached the Supreme Court until the eve of
the convention, however, the Court pronounced itself "unwill-
ing to undertake final resolution of the important constitu-
tional questions presented .... under the circumstances and
time pressures surrounding" the appeals, id., and instead
simply granted stays of the judgments pending consideration
of the petitions for certiorari.

The defendants also contend that, since O'Brien, the Su-
preme Court has consistently held "disputes over internal
party rules to be nonjusticiable." Appellees' Br. at 22. In
fact, the Court has never so held. The first case defendants
cite for this proposition is Cousins v. Wigoda, which did hold
that "[t]he National Democratic Party and its adherents enjoy
a constitutionally protected right of political association." 419
U.S. 477, 487 (1975). But that did not end the inquiry. The
Court went on to determine whether Illinois had a sufficiently
"compelling interest" to justify abridgment of the Party's
constitutional rights, id. at 489-91, and expressly "intimate[d]
no views" as to "whether or to what extent principles of the
political question doctrine counsel against judicial interven-
tion" into "decisions of a national political party in the area of
delegate selection," id. at 483 n.4.4

__________
4 Cousins, O'Brien, and Keane all related to a dispute over the
seating of Illinois delegates at the 1972 convention. In the Illinois
state primary, voters elected a slate of uncommitted delegates,

Much the same is true of the other Supreme Court deci-
sions cited by defendants, including Democratic Party v.
Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), Eu v. San
Francisco County Democratic Central Committee, 489 U.S.
214 (1989), and Tashjian v. Republican Party, 479 U.S. 208
(1986). As defendants contend, and as we will discuss in Part
V below, these cases do hold that "a State, or a court, may
not constitutionally substitute its own judgment for that of [a]
Party. A political party's choice among the various ways of
determining the makeup of a State's delegation to the party's
national convention is protected by the Constitution." LaFol-
lette, 450 U.S. at 123-24. Yet, as in Cousins, in each of these

__________
including Chicago alderman Paul Wigoda, who were associated with
Chicago Mayor Richard J. Daley. A "reform" slate, including
William Cousins, successfully petitioned the Party's Credentials
Committee to be seated in their stead. See generally Petitioners'
Opening Brief at 5-9, Cousins v. Wigoda, 419 U.S. 477 (1975) (No.
73-1106). The Wigoda delegates, in turn, sued to reverse the
Committee's decision.

In Brown v. O'Brien, 469 F.2d 563 (D.C. Cir. 1972), this court
rejected the Wigoda delegates' complaint and enjoined them from
further prosecuting an Illinois state court action they had brought
against their rivals. See id. at 571-75; see also infra note 20. In
O'Brien v. Brown, the Supreme Court stayed this court's judgment.
See 409 U.S. at 5. After the convention, the Court granted the
petition for certiorari, vacated the judgment, and remanded for
consideration of whether the case had become moot. See Keane v.
National Democratic Party, 409 U.S. 816 (1972). We held the case
moot insofar as it concerned the seating of delegates at the conven-
tion, and affirmed dismissal of the Wigoda delegates' suit. See
Keane, 475 F.2d at 1288.

Meanwhile, one day after the Supreme Court's stay of our initial
judgment, and two days before the convention, the Illinois circuit
court had ruled in favor of the Wigoda delegates and enjoined the
Cousins delegates from participating in the convention. See Cous-
ins, 419 U.S. at 480. The convention nevertheless seated the
Cousins delegates, who were subsequently threatened with criminal
contempt for violating the state court injunction. See id. at 481. In
Cousins, the Supreme Court reversed the decision of the Illinois
court in favor of the Wigoda delegates. See id. at 491.

cases the Court went on to decide the dispute on the merits.
And in LaFollette, although the Court said that "the stringen-
cy, and wisdom, of membership requirements is for the
association and its members to decide--not the courts," it
immediately qualified that statement by adding: "so long as
those requirements are otherwise constitutionally permissi-
ble." Id. at 123 n.25 (emphasis added).5

The allegations made by LaRouche do not come within the
basic criteria for political questions. For example, "[a] con-
troversy is non-justiciable--i.e., involves a political question--
where there is 'a textually demonstrable constitutional com-
mitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for
resolving it....' " Nixon v. United States, 506 U.S. 224, 228
(1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). The
first category of political questions is plainly absent here, as
no other branch of the government is involved. The impor-
tant question is whether this case falls within the second
category--that is, whether there are judicially discoverable
and manageable standards for resolving it.

Contrary to defendants' description, this case does not
come to us merely as a dispute over whether LaRouche
qualifies for delegates under internal party rules. Rather,
LaRouche contends that the Party's internal rules violate the
Voting Rights Act. In so doing, he alleges the violation of an
express and measurable statutory duty requiring covered
"state[s] or political subdivision[s]" to preclear "any voting

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5 In Wymbs v. Republican State Executive Committee, also
cited by defendants, the Eleventh Circuit held nonjusticiable a
challenge to Florida Republican Party rules for selection of dele-
gates to the 1980 Republican National Convention. See 719 F.2d
1072 (11th Cir. 1983). The court's holding was based in part on the
fact that, in contrast to this case, plaintiffs had failed to join the
Party's national committee as a defendant. See id. at 1081, 1086;
see also Bachur v. Democratic Nat'l Party, 836 F.2d 837, 838, 841
(4th Cir. 1987) (deciding that a constitutional challenge to 1984
Democratic National Convention rules, as implemented in Mary-
land, was "not justiciable because it is lacking in merit") (emphasis
added).

qualification ... or procedure with respect to voting different
from that [previously] in force or effect...." 42 U.S.C.
s 1973c. Although it may be difficult to determine whether
Rule 11(K) comes within the Act's terms, courts do not lack
judicially discoverable and manageable standards for making
that determination. The application of the Voting Rights
Act's language to the facts of the Party's delegate-selection
rules is a typical judicial exercise. As we will discuss in detail
below, it is an exercise the Supreme Court itself undertook
just two Terms ago--without raising the specter of a political
question. See Morse, 116 S. Ct. 1186.

Nor do the plaintiffs' constitutional (and s 1983) claims
raise a political question. Those claims arise principally
under the First Amendment and under the Equal Protection
and Due Process Clauses of the Fourteenth Amendment.
The Supreme Court repeatedly has adjudicated election dis-
putes arising under those amendments, see, e.g., Eu, 489 U.S.
at 222-33; LaFollette, 450 U.S. at 120-26; Cousins, 419 U.S.
at 487-91, thus rendering "the interpretation of [these] provi-
sions of the Constitution ... well within the competence of
the Judiciary," United States Dep't of Commerce v. Montana,
503 U.S. 442, 458 (1992) (referring to "the apportionment
provisions of the Constitution"). See Williams v. Rhodes, 393
U.S. 23, 28 (1968) (rejecting claim that challenge to state
election law was nonjusticiable political question). Although
defendants seek to distinguish the election cases as involving
"state action," while contending that this case involves noth-
ing more than the decisions of a private political party,
determining which of those two descriptions is legally correct
is part of deciding whether the DNC's actions violate the
Constitution. And "[t]hat determination is a decision on the
merits that reflects the exercise of judicial review, rather
than the abstention from judicial review that would be appro-
priate in the case of a true political question." Montana, 503
U.S. at 458.

IV

We next consider LaRouche's challenge to the district
judge's determination that Rule 11(K) and the Fowler letter

did not violate the Voting Rights Act. We conclude that both
this court and the single-judge district court below largely
lack jurisdiction to decide the merits of this issue because the
question properly belongs before a three-judge district court.
See Goosby v. Osser, 409 U.S. 512, 522 n.8 (1973).

A

Section 5 of the Voting Rights Act, 42 U.S.C. s 1973c,
states that "[a]ny action under this section shall be heard and
determined by a court of three judges in accordance with the
provisions of section 2284 of Title 28." Section 2284(b)(1), in
turn, provides that the district judge to whom a request for a
three-judge court is made "shall, unless he determines that
three judges are not required," notify the chief judge of the
circuit to convene a three-judge court. Appeals from deci-
sions of three-judge courts under section 5 must be made
directly to the Supreme Court. See 42 U.S.C. s 1973c; Allen
v. State Bd. of Elections, 393 U.S. 544, 561-62 (1969). Courts
of appeals, however, have jurisdiction to determine whether a
single district judge properly declined to convene a three-
judge court. See Gonzalez v. Automatic Employees Credit
Union, 419 U.S. 90, 100 & n.19 (1974); Idlewild Bon Voyage
Liquor Corp. v. Epstein, 370 U.S. 713, 715-16 (1962); H.R.
Rep. No. 94-1379, at 7 (1976).

It has long been the rule that single district judges may not
determine the merits of claims alleging the failure to preclear
voting changes under section 5. See, e.g., Backus v. Spears,
677 F.2d 397, 400 (4th Cir. 1982); United States v. Saint
Landry Parish Sch. Bd., 601 F.2d 859, 863 (5th Cir. 1979); cf.
Goosby, 409 U.S. at 518 (regarding three-judge court actions
under former 28 U.S.C. s 2281). Although s 2284 does
provide that a single judge may "determine[ ] that three
judges are not required," 28 U.S.C. s 2284(b)(1), a single
judge may do so only if a plaintiff's challenge is "wholly
insubstantial," League of United Latin Am. Citizens v. Texas,
113 F.3d 53, 55 (5th Cir. 1997) (quoting Goosby, 409 U.S. at
518). See also Backus, 677 F.2d at 400. The Supreme Court

made clear just how minimal a showing is required to estab-
lish substantiality in Goosby v. Osser:

"[I]nsubstantiality" for this purpose has been equated
with such concepts as "essentially fictitious," "wholly
insubstantial," "obviously frivolous," and "obviously with-
out merit." The limiting words "wholly" and "obviously"
have cogent legal significance. In the context of the
effect of prior decisions upon the substantiality of consti-
tutional claims, those words import that claims are con-
stitutionally insubstantial only if the prior decisions ines-
capably render the claims frivolous; previous decisions
that merely render claims of doubtful or questionable
merit do not render them insubstantial.... A claim is
insubstantial only if its unsoundness so clearly results
from the previous decisions of this court as to foreclose
the subject and leave no room for the inference that the
questions sought to be raised can be the subject of
controversy.

409 U.S. at 518 (citations and some internal quotations omit-
ted).6

Although the DNC contends LaRouche's challenge fails
even under the Goosby standard, it also contends that stan-

__________
6 Goosby involved a challenge to state election laws under the
Equal Protection and Due Process Clauses of the Fourteenth
Amendment, which at the time had to be made before a three-judge
district court pursuant to 28 U.S.C. s 2281. Congress repealed 28
U.S.C. s 2281 in 1976, returning jurisdiction over suits to enjoin
state statutes on constitutional grounds to single district judges.
See Act of August 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119. The
courts uniformly have applied Goosby's "wholly insubstantial" stan-
dard to requests for three-judge courts under section 5 of the
Voting Rights Act. See, e.g., League of United Latin Am. Citizens,
113 F.3d at 55; Saint Landry Parish, 601 F.2d at 863 n.6; see also
Backus, 677 F.2d at 400. Indeed, section 5 refers to the same
statutory section that s 2281 did for the procedures governing its
three-judge courts, providing, as did s 2281, that actions shall be
"determined by a [district] court of three judges [under] section
2284." 42 U.S.C. s 1973c; see 28 U.S.C. s 2281 (1970) (repealed
1976).

dard was altered when Congress amended s 2284 in 1976. It
points out that the pre-1976 version provided that "[a] single
judge shall not ... dismiss the action," 28 U.S.C. s 2284(5)
(1970) (repealed 1976), while the current version does not.
The DNC concludes that Congress must have meant, by this
deletion, to permit a single judge to grant a motion to
dismiss.

No court has noticed the language change pointed to by the
DNC or interpreted it as having such import. See League of
United Latin Am. Citizens, 113 F.3d at 55 (continuing to
apply Goosby test); Armour v. Ohio, 925 F.2d 987, 989 (6th
Cir. 1991) (same); Backus, 677 F.2d at 400 (same). There is
good reason for this. First, the legislative history suggests
that Congress did not intend the change to have any substan-
tive effect.7 Second, the section of the statute in which the
quoted provision appeared applied only to the powers avail-
able to an individual judge who was a member of a three-
judge court, not to the powers of a single judge before such a
court had been convened. See 28 U.S.C. s 2284(5) (1970)
(repealed 1976). Third, at the same time Congress deleted
the bar against a single member of a three-judge court alone
"dismiss[ing an] action," it inserted a new prohibition barring
such a single judge from "enter[ing] judgment on the merits,"
28 U.S.C. s 2284(b)(3) (1994). Hence, at most the change
merely clarified that an individual member of a three-judge
court has no more power to decide a case on the merits than a
single judge has under Goosby: neither may enter judgment
on the merits of a claim requiring action by a three-judge

__________
7 Although the legislative history does not address this change
specifically, both the Senate and House Reports explain the reasons
for other changes in the section and then note that "[t]he other
powers here given the single judge, or expressly denied him, are
similar to those stated in" the predecessor version of s 2284.
S. Rep. No. 94-204, at 13 (1975); H.R. Rep. No. 94-1379, at 7. The
legislative history also states that the "bill in no way affects the
right to a three-judge court where otherwise specifically mandated
by statute, such as in ... the Voting Rights Act of 1965...." H.R.
Rep. No. 94-1379, at 2; see S. Rep. No. 94-204, at 2.

court, i.e., a claim that is not "wholly insubstantial" or "obvi-
ously frivolous."

B

We turn, then, to the DNC's fall-back position: that even
under Goosby, LaRouche's section 5 claim must be dismissed
because that section's preclearance requirements "obviously"
do not apply to defendants' actions. In so doing, we say only
enough to determine whether LaRouche's claims are "obvi-
ously frivolous" or "wholly insubstantial," and not to intimate
a final view as to their merits.

The purpose of the Voting Rights Act was to remedy
"racial discrimination in voting ... in areas where such
discrimination had been most flagrant." Morse, 116 S. Ct. at
1192 (Stevens, J.). To that end, section 5 bars certain
covered "state[s] or political subdivision[s]" from "enact[ing]
or seek[ing] to administer any voting qualification or prereq-
uisite to voting, or standard, practice, or procedure with
respect to voting" different from that in effect on November
1, 1964, or two specified later dates, unless they have been
precleared by the Attorney General or approved by the
United States District Court for the District of Columbia. 42
U.S.C. s 1973c; see Morse, 116 S. Ct. at 1193 (Stevens, J.).8
Section 14 defines "vote" or "voting" as "all action necessary
to make a vote effective in any primary, special, or general
election" for "candidates for public or party office." 42
U.S.C. s 1973l (c)(1) (emphasis added).

Section 4 of the Act authorizes the Attorney General to
identify each "State or ... political subdivision of a state" in
which racial discrimination in voting had occurred, pursuant
to a formula set out in the section. 42 U.S.C. s 1973b(b); see

__________
8 The standard for preclearance by a district court is a showing
that the qualification or prerequisite "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...." 42 U.S.C. s 1973c. The Justice
Department's regulations provide that "the Attorney General shall
make the same determination that would be made by the [district]
court in an action for a declaratory judgment." 28 C.F.R. s 51.52.

Morse, 116 S. Ct. at 1192. The states and political subdivi-
sions so identified are the "covered jurisdictions" of the Act,
28 C.F.R. s 51.4(c), and are listed in the Justice Depart-
ment's regulations. See id. pt. 51, app. The list includes nine
states and parts of seven others. Arizona, Louisiana, Texas,
and Virginia are all covered jurisdictions; the District of
Columbia is not. See id.

The leading case regarding the application of section 5 to
political parties is Morse v. Republican Party, 116 S. Ct. 1186
(1996). In Morse, the Supreme Court held that the Virginia
Republican Party's imposition of a registration fee on those
who wished to be delegates to the Party's nominating conven-
tion for its U.S. Senate candidate was subject to preclearance
under section 5. Justice Stevens announced the judgment of
the Court in an opinion joined by Justice Ginsburg. In his
view, "political parties are covered under s 5 ... insofar as
the Party exercises delegated power over the electoral pro-
cess," id. at 1208--that is, power " 'explicitly or implicitly
granted by a covered jurisdiction,' " id. at 1193 (quoting 28
C.F.R. s 51.7). Justice Stevens found Virginia to have made
such a delegation because, under the state's Electoral Code,
"the nominees of the two major political parties shall auto-
matically appear on the general election ballot," in contrast to
independent candidates who have to "demonstrate their sup-
port with a nominating petition." Id. at 1194. Virginia also
reserved the top two ballot positions for the major parties,
leaving independents with lower listings. See id. at 1195.
The consequence of this "dual regime," id. at 1194, Justice
Stevens said, was that the State had delegated to the Party
"the power to determine part of the field of candidates from
which the voters must choose. Correspondingly, when Virgi-
nia incorporates the Party's selection, it 'endorses, adopts and
enforces' the delegate qualifications set by the Party for the
right to choose that nominee." Id. at 1195 (quoting Smith v.
Allwright, 321 U.S. 649, 664 (1944)).

Justice Breyer, writing for himself and Justices O'Connor
and Souter, concurred in the judgment. See id. at 1213-16.
His opinion emphasized the historical concerns that led to the
passage of the Voting Rights Act, as exemplified by the

Court's White Primary Cases, see id. at 1213-14--concerns
that Justice Stevens stressed as well, see id. at 1202-04 &
n.27. In the first of the White Primary Cases, Nixon v.
Herndon, 273 U.S. 536, 540-41 (1927), the Supreme Court
struck down, as a violation of the Fourteenth Amendment, a
Texas statute barring nonwhites like plaintiff L.A. Nixon
from voting in Democratic primaries. In response, the Texas
legislature authorized the executive committees of political
parties to prescribe their own voter qualifications, and the
state Democratic Party adopted a rule limiting its primaries
to white Democrats. Nixon, once again barred from voting,
challenged the Party's action, which the Court held to be
state action invalid under the Fourteenth Amendment. See
Nixon v. Condon, 286 U.S. 73, 89 (1932). The Party then
implemented the same policy, albeit without statutory di-
rection, by adopting a resolution at a state convention re-
stricting party membership to whites. The Court struck this
down as unlawful state action as well, this time under the
Fifteenth Amendment, concluding that the Party's resolution
constituted state action even though it was not expressly
authorized by statute. See Smith, 321 U.S. at 664. After
Smith, the same discriminatory policy continued to be imple-
mented in certain Texas counties by the Jaybird Democratic
Association, a voluntary organization that conducted private
primary elections, the winners of which with few exceptions
ran unopposed in the Democratic Party primary and general
elections that followed. Once again, the Court held this
election process unconstitutional under the Fifteenth Amend-
ment. See Terry v. Adams, 345 U.S. 461, 469-70 (1953). See
generally Morse, 116 S. Ct. at 1202-03 (Stevens, J.).

When Congress passed the Voting Rights Act in 1965,
Justice Breyer wrote, it well knew the history of the White
Primary Cases. It knew that "States had tried to maintain
[the] status quo through the 'all-white' primary--a tactic that
tried to avoid the Fifteenth Amendment by permitting white
voters alone to select the 'all-white' Democratic Party nomi-
nees, who were then virtually assured of victory in the
general election." Id. at 1213 (Breyer, J.). In light of this
history, Justice Breyer concluded, "to have read this Act as

excluding all political party activity would have opened a
loophole in the statute the size of a mountain," which it was
clear Congress did not intend to do. Id.; accord id. at 1204
(Stevens, J.). He cautioned, however, that the Court should
decide nothing more than the case before it because of the
difficult First Amendment questions raised by applying pre-
clearance procedures in the context of political party conven-
tions. See id. at 1215.9

The result in Morse precludes defendants' contention that
because the state party actions of which LaRouche complains
occurred at party caucuses or conventions rather than at
state-run party primaries, section 5 preclearance "obviously"
was not required: Morse, too, involved a convention system.
Morse also poses difficulties for defendants' contention that
the claims against Fowler and the DNC are frivolous because
neither is listed as a "covered jurisdiction" under section 5:
the defendant in Morse, the Virginia Republican Party, also
was not listed. Nor can we distinguish Morse on the ground
that it did not concern delegates to a national political conven-
tion: as Justice Stevens noted, "[t]he impetus behind the
addition of the term 'party office' to s 14 was the exclusion of
blacks from the Mississippi delegation to the National Demo-
cratic Convention in 1964." Id. at 1205-06; accord id. at 1214
(Breyer, J.).10

__________
9 The dissenting justices concluded that the Virginia Republi-
can Party was not a "State or political subdivision" for purposes of
section 5, both as a matter of statutory construction, see id. at 1222-
23 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.),
and because of the First Amendment concerns noted by Justice
Breyer, see id. at 1216 (Scalia, J., dissenting, joined by Thomas, J.)
("[W]e have always treated government assertion of control over
the internal affairs of political parties ... as a matter of the utmost
constitutional consequence."); id. at 1220 (Kennedy, J., dissenting,
joined by Rehnquist, C.J.) ("The First Amendment questions pre-
sented by governmental intrusion into political party functions are a
further reason for caution....").

10 See also id. at 1196 n.18 (Stevens, J.) (noting that in
MacGuire v. Amos, 343 F. Supp. 1191 (M.D. Ala. 1972), "a three
judge court held that rules promulgated by the Alabama Democrat-

Finally, defendants contend that Morse can be distin-
guished as a case involving state party rules, while the case
before us involves national party rules. The DNC, they say,
was not acting under the authority of a covered jurisdiction
when it adopted Rule 11(K); it was acting under its own
authority. Likewise, defendants say, the state parties were
not acting under state authority when they excluded La-
Rouche delegates; they were acting under the compulsion of
the national party's rules. The problem with labeling this
distinction as "obvious" is that a similar one was considered
and rejected in Morse. Virginia had not required the party
to enact a filing fee or even to nominate its candidates in any
particular way; those decisions were the party's own. Yet,
Justice Stevens found that the freedom the State gave the
Party provided no defense. To the contrary, he said, Virgi-
nia's grant to the Party of "the right to choose the method of
nomination makes the delegation of authority in this case
more expansive, not less, for the Party is granted even
greater power over the selection of its nominees." Id. at
1196.11

__________
ic and Republican Parties governing election of national delegates
required preclearance, despite the fact that the rules were not
passed by 'the State's legislature or by a political subdivision of the
State' ").

11 The DNC notes some tension between the passage quoted in
the text and another passage distinguishing Morse from the Court's
summary affirmance of a three-judge court's decision in Williams v.
Democratic Party, Civ. No. 16286 (N.D. Ga. Apr. 6, 1972), aff'd, 409
U.S. 809 (1972). Williams held section 5 inapplicable to a Georgia
Democratic Party rule, adopted to comply with a rule promulgated
by the National Democratic Party, that governed the selection of
delegates to the national convention. Justice Stevens did describe
Williams as a case where the state "exercised no control over, and
played no part in, the state Party's selection of delegates," and
therefore where the state had "delegated no authority to the Party
to choose the delegates." 116 S. Ct. at 1197; see id. at 1197 n.19.
On the other hand, Justice Stevens went on to say that at the time
of Williams, the Attorney General's regulations did not provide
"administrative procedures for submission of" rule changes by
political parties, id. at 1197, and that that ground "would have

Justice Stevens summed up his view as follows:

The imposition by an established political party--that is
to say, a party authorized by state law to determine the
method of selecting its candidates for elective office and
also authorized to have those candidates' names automat-
ically appear atop the general election ballot--of a new
prerequisite to voting for the party's nominees is subject
to s 5's preclearance requirement.

Id. at 1206. In the case at bar, the principal covered jurisdic-
tions at issue also have authorized the state parties to deter-
mine the method of selecting their delegates. See Ariz. Rev.
Stat. s 16-243; La. Rev. Stat. s 18:1280.27; Va. Code
s 24.2-508; cf. Tex. Elec. Code ss 191.001, 191.007. And all
of the covered jurisdictions have guaranteed the major party
candidates--in this case their presidential nominees--auto-
matic positions atop the general election ballot, provided that
the parties obtain a minimum level of support in a recent
election. See Ariz. Rev. Stat. ss 16-502, -804; La. Rev. Stat.
ss 18:465, :1254, :1259; Tex. Elec. Code ss 52.091, 192.031;
Va. Code ss 24.2-101, -542, -543. Accordingly, it can hardly
be frivolous to argue from Morse that these covered jurisdic-
tions have delegated electoral power to the state parties
through the former authorization, and to the National Demo-
cratic Party through the latter guarantee.

None of this is to suggest that there may not be good
reasons to limit the reach of Morse's "delegation" theory
before it touches national party rules. One such reason is
reflected in Justice Breyer's caution, acknowledged by Justice
Stevens and stressed by the dissenters, that "First Amend-
ment questions about the extent to which the Federal Gov-
ernment, through preclearance procedures, can regulate the
workings of a political party convention, are difficult ones."
Morse, 116 S. Ct. at 1215 (Breyer, J.); see id. at 1210-11

__________
sufficed for our affirmance," id. at 1198 n.21. He also questioned
the precedential value of Williams, "not[ing] that a summary
affirmance by this Court is a 'rather slender reed' on which to rest
future decisions." Id. (quoting Anderson v. Celebrezze, 460 U.S.
780, 784-85 n.5 (1983)).

(Stevens, J.); id. at 1216-18 (Scalia, J., dissenting); id. at
1220-21 (Kennedy, J., dissenting).

There is another strong argument for shortening the reach
of the delegation theory. It is clear that what drove the
majority opinions in Morse to extend the Voting Rights Act to
state party activities was a concern generated by the histori-
cal background to the passage of the Act. The concern was
that if the statute were applied only to direct actions by the
covered states, those states might simply delegate their au-
thority to their state parties--just as the Court found had
happened in the White Primary Cases--and thus open "a
loophole in the statute the size of a mountain." Id. at 1213
(Breyer, J.). But nothing in the historical context supports a
concern that a covered jurisdiction would try to achieve this
end by delegating authority to a national party, or that a
national party would attempt to impose racially discriminato-
ry rules on a covered jurisdiction. To the contrary, the fact
that Congress restricted the application of the Voting Rights
Act to specified geographic jurisdictions indicates that it did
not have the same concerns regarding actions taken by other
jurisdictions.

But the fact that defendants ultimately may be able to
distinguish the national party rules at issue here from the
state party rule at issue in Morse does not mean that a single
district judge had the authority to dismiss LaRouche's chal-
lenge. No court has yet drawn the distinction considered
here, so we can hardly say that "prior decisions inescapably
render the claims frivolous...." Goosby, 409 U.S. at 518.
And while Morse plainly does not foreclose the distinction the
DNC needs to draw, it surely "leave[s] ... room for the
inference that the questions sought to be raised [by La-
Rouche] can be the subject of controversy." Goosby, 409 U.S.
at 518. Accordingly, because we cannot say that plaintiffs'
section 5 claims are "essentially fictitious," "wholly insubstan-
tial," or "obviously frivolous," we must remand them for
consideration by a three-judge court.12

__________
12 We do not rule on a series of additional hurdles--not reached
by the district court--that LaRouche must clear in order to estab-

We make one exception to our remand. Included among
the defendants in this case are the District of Columbia
Democratic Party, the District of Columbia Democratic State
Committee, and the chair of that committee. The District of
Columbia is not a covered jurisdiction. See 28 C.F.R. pt. 51,
app. Nor is there any allegation that the District of Colum-
bia defendants acted with the authority of any covered juris-
diction or that their actions affected voting rights in any
covered jurisdiction. Indeed, LaRouche does not even offer a
theory for section 5 coverage of the District of Columbia
defendants. See Reply Br. at 11 (discussing each of the other
categories of defendants). Therefore, because the section 5
claims are "wholly insubstantial" with respect to these defen-
dants, the district court had authority to dismiss them and we
affirm that dismissal.13

__________
lish his section 5 claim. For example, LaRouche must establish not
only that the DNC Rules and letter were effectively the action of "a
State or political subdivision," but also that they amounted to (1) a
"voting qualification or prerequisite to voting, or standard, practice,
or procedure with respect to voting," that (2) was "different from
that in force or effect" on the dates specified in the statute. 42
U.S.C. s 1973c. LaRouche also must overcome the contention of
several defendants that the district court lacks venue and personal
jurisdiction over them.

13 The Arizona defendants contend that they, too, should be
treated differently because the actions LaRouche complains of--the
cancellation of the state's presidential preference primary election
as to which he had qualified for a ballot position--was accomplished
through an Arizona state court order. See Appellees' Br. at 27
(citing Arizona State Democratic Comm. v. Secretary of State, No.
CV 96-00909 (Ariz. Super. Ct., Maricopa Co. Feb. 1, 1996)) (J.A.
342-50); see also supra note 2. But the fact that an electoral
change was ordered by a state court rather than some other state
body does not necessarily take it out of the coverage of section 5,
and we therefore cannot conclude that the claim against the Arizona
defendants is "obviously frivolous." Cf. Hathorn v. Lovorn, 457
U.S. 255, 265-66 n.16 (1982) ("[T]he presence of a court decree does
not exempt the contested change from s 5.... [Section] 5 applies
to any change reflecting the policy choices of the elected represen-
tatives of the people, even if a judicial decree constrains those

V

LaRouche also contends that Rule 11(K) and the Fowler
letter deprived plaintiffs of their rights under 42 U.S.C.
s 1983 and under the following provisions of the Constitution:
Article II, Section 1; the First and Fifth Amendments; the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment; and the Fifteenth Amendment. These claims,
like the Voting Rights Act claim, are certainly not frivolous.
Here, however, the district court's jurisdiction and our stan-
dard of review are considerably different. These statutory
and constitutional claims do not require a three-judge court
for decision. Although they were asserted in the same
complaint as the Voting Rights Act claims, a single district
judge may decide them and then refer the Voting Rights Act
claims to a three-judge court. See Hagans v. Levine, 415
U.S. 528, 543-44 (1974); 17 Charles A. Wright et al., Federal
Practice and Procedure s 4235 (2d ed. 1988). And the
district court's dismissal of these claims under Fed. R. Civ. P.
12(b)(6) is subject to our de novo review. See Taylor v.
FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997).

Although LaRouche bases his claims on both s 1983 and
the Constitution, we have previously recognized that the case
law relating to s 1983 claims, and that relating to claims
brought directly under the Constitution, "have been assimilat-
ed in most ... respects." Williams v. Hill, 74 F.3d 1339,
1340 (D.C. Cir. 1996) (internal quotation and citation omitted)
(ellipsis in original); see Hafer v. Melo, 502 U.S. 21, 28 (1991);
National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S.
179, 182 n.4 (1988). LaRouche offers no argument for treat-
ing the two sets of claims differently and we therefore
address them as one.14

__________
choices.") (internal quotation omitted); Cousins, 419 U.S. 477 (hold-
ing that state court decision interpreting state election law is "state
action" for purposes of Fourteenth Amendment); League of United
Latin Am. Citizens, 113 F.3d at 55 (claim that state court interpre-
tation of previously precleared state law is subject to section 5
preclearance is not "wholly insubstantial" under Goosby).

14 LaRouche also asserted claims under 42 U.S.C. s 1985(3)
which, he contends, provides a cause of action for conspiracies to

Similarly, LaRouche presents his constitutional claims as
an amalgam of the constitutional provisions cited above. He
suggests no separate analysis for his First Amendment claims
and asserts no difference between the appropriate analyses
under the Due Process and Equal Protection Clauses.15 As

__________
violate constitutional rights even if the defendants are not state
actors. Since we conclude infra that LaRouche's constitutional
rights were not violated even if the defendants are considered state
actors, s 1985(3) does not advance LaRouche's cause. In any
event, the discussion infra also demonstrates that plaintiffs can
establish neither of the two requirements for a s 1985(3) cause of
action: "(1) that some racial, or perhaps otherwise class-based,
invidiously discriminatory animus [lay] behind the conspirators'
action, and (2) that the conspiracy aimed at interfering with rights
that are protected against private, as well as official, encroach-
ment." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263,
267-68 (1993) (alteration in original) (citations omitted); see also
United Bhd. of Carpenters of America, Local 610 v. Scott, 463 U.S.
825, 840 (1983).

15 But see infra note 37 (discussing plaintiffs' allusion to proce-
dural due process claim). In the circumstances of this case, plain-
tiff's reference to the Fifteenth Amendment also adds nothing to
the analysis. Cf. Mobile v. Belden, 446 U.S. 55, 65-67 (1980)
(plurality opinion) (applying similar analysis under both Fifteenth
Amendment and Fourteenth Amendment's Equal Protection Clause
to claim that at-large system of municipal elections was unconstitu-
tional); Shaw v. Barr, 808 F. Supp. 461, 469 n.7 (E.D.N.C. 1992)
(same for racial gerrymandering and vote dilution claims), rev'd on
other grounds sub nom. Shaw v. Reno, 509 U.S. 630 (1993).

Nor is anything added by LaRouche's passing reference to Arti-
cle II, Section 1, of the Constitution, which sets forth the qualifica-
tions for President of the United States. Although the DNC rule
may have added a qualification for the position of Democratic
candidate for President, it did not and was not intended to add a
qualification for the Office of President itself any more than would
any political party's basic requirement that its nominee be a mem-
ber of the party. Cf. Storer v. Brown, 415 U.S. 724, 746 n.16 (1974)
(state requirement that independent candidate in general election
for U.S. Representative be unaffiliated with political party "no more
establishes an additional requirement for the office of Representa-

the Supreme Court's recent election law cases also treat such
claims using a single basic mode of analysis,16 we will do so
here as well. Finally, LaRouche does not distinguish be-
tween his rights as a citizen and candidate and the rights of
his adherents as citizens, supporters, and voters. The Su-
preme Court has found these various interests closely tied
together and, except as indicated below, we find it unneces-
sary to disentangle them in order to resolve the merits of
LaRouche's challenge.17

To succeed on his claims under s 1983 and the Constitu-
tion, LaRouche and his adherents must show (1) that the
conduct they complain of is a form of "state action," 18 and (2)

__________
tive than the requirement that [an affiliated] candidate win the
primary to secure a place on the general ballot"); U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779, 835-36 (1995) (state limita-
tion on access to general election ballot violates congressional
Qualifications Clauses where it has the likely effect and sole pur-
pose of creating additional qualification for service in Congress).

16 See Anderson v. Celebrezze, 460 U.S. 780, 787 n.7 (1983)
("[W]e base our conclusions directly on the First and Fourteenth
Amendments and do not engage in a separate Equal Protection
Clause analysis. We rely, however, on the analysis in a number of
our prior election cases resting on the Equal Protection Clause of
the Fourteenth Amendment."); see also Norman, 502 U.S. at 288
n.8; Republican Party v. Faulkner County, 49 F.3d 1289, 1293 n.2
(8th Cir. 1995) ("In election cases, equal protection challenges
essentially constitute a branch of the associational rights tree.").

17 See Anderson, 460 U.S. at 786 (" '[T]he rights of voters and
the rights of candidates do not lend themselves to neat separation;
laws that affect candidates always have at least some theoretical,
correlative effect on voters.' ") (citation omitted); Bullock v. Carter,
405 U.S. 134, 143 (1972) (same); Rhodes, 393 U.S. at 30 ("In the
present situation, the state laws place burdens on two different,
although overlapping, kinds of rights--the right of individuals to
associate for the advancement of political beliefs, and the right of
qualified voters ... to cast their votes effectively.")

18 For the kind of conduct at issue here, the "under color of
state law" standard of s 1983 and the "state action" requirement
for a claim under the Constitution are synonymous. See Hafer, 502

that such action deprived them of their constitutional rights.
See Washington v. District of Columbia, 802 F.2d 1478, 1480
(D.C. Cir. 1986) (citation omitted); see also Tarkanian, 488
U.S. at 191 (holding that only state action is subject to
scrutiny under Due Process Clause of Fourteenth Amend-
ment). We examine these issues in the following sections.

A

The Supreme Court first considered whether political party
activity constituted state action in the White Primary Cases
described in Part IV above. We construed those cases
broadly in Georgia v. National Democratic Party, where we
found state action in the formulas the national parties used to
allocate delegates to national nominating conventions. See
447 F.2d at 1275-76. We viewed the White Primary Cases as
mandating that we regard the action of the individual state
parties in selecting their convention delegates as state action,
and concluded that the same was true when those parties
acted through their delegates at the national convention. We
also concluded that by placing the nominee of the convention
on the ballot, the states "have adopted this narrowing process
as a necessary adjunct of their election procedures." Id. at
1276. We followed Georgia in Bode v. National Democratic
Party, holding that the Democratic National Committee's
adoption of a formula for the allocation of delegates to its
1972 national convention was "tantamount to a decision of the
States acting in concert and therefore subject to constitution-
al standards applicable to state action." 452 F.2d at 1304-
05.19

__________
U.S. at 28 ("[I]n s 1983 actions the statutory requirement of action
'under color of' state law is just as broad as the Fourteenth
Amendment's 'state action' requirement."); Tarkanian, 488 U.S. at
182 n.4; see also Lugar v. Edmonson Oil Co., 457 U.S. 922, 935 &
n.18 (1982) (holding conduct that satisfies "state action" require-
ment of Fourteenth Amendment also satisfies "under color of state
law" requirement, but noting that conduct satisfying latter may
sometimes not satisfy former).

19 Although we found state action, we rejected plaintiffs' chal-
lenges in both Georgia and Bode on the merits. See Georgia, 447
F.2d at 1280; Bode, 452 F.2d at 1310.

We initially took the same approach again in Brown v.
O'Brien, holding that delegate-seating decisions by the Cre-
dentials Committee of the 1972 Democractic National Con-
vention constituted state action. We rejected one constitu-
tional attack on such a decision on its merits, but sustained
another attack on the ground that the Committee's action was
so unfair as to violate the Due Process Clause. See 469 F.2d
563, 565, 569-70 (D.C. Cir. 1972).20 As noted above, however,
the Supreme Court stayed that decision, leaving it to the
Convention itself to decide whether to give the litigants the
relief they had sought in federal court. Although the Court
did not decide the issue, it found that "[h]ighly important
questions are presented concerning ... whether the action of
the Credentials Committee is state action" and expressed
"grave doubts as to the action taken by the Court of Ap-
peals." O'Brien v. Brown, 409 U.S. at 4-5. In the same
opinion, the Court also seemed to limit the reach of the White
Primary Cases, noting that "[t]his is not a case in which
claims are made that injury arises from invidious discrimina-
tion based on race in a primary contest within a single State."
Id. at 4 n.1 (citing Terry, 345 U.S. 461, and Smith, 321 U.S.
649).

Three years later, in a case arising out of the same
delegate-selection battle, see supra note 4, the Supreme
Court again sidestepped the question of whether party action
was state action. In Cousins v. Wigoda, the Court held that
an Illinois court had unconstitutionally attempted to enjoin
delegates selected pursuant to Democratic Party rules from
taking their seats at the 1972 national convention. Because
the case arose in the context of a state court injunction,
however, the existence of state action was clear and it was

__________
20 Brown rejected an attack by Illinois' uncommitted Wigoda
delegates on their unseating and enjoined them from further prose-
cuting an Illinois state court action they had brought against those
who challenged their seats before the Credentials Committee. See
469 F.2d at 570-75; supra note 4. Brown upheld an attack by
California's McGovern delegates on their unseating and remanded
for entry of an order enjoining the Democratic Party from unseat-
ing them. See 469 F.2d at 566-70.

"not necessary" to determine "whether the decisions of a
national political party in the area of delegate selection consti-
tute state or governmental action." 419 U.S. at 483 n.4
(internal quotation omitted).

When we again considered the question of whether national
party action was state action, we found the answer to be
"much less clear" than we had in Georgia and Bode. See
Ripon Soc'y, Inc. v. National Republican Party, 525 F.2d
567, 574 (D.C. Cir. 1975) (en banc). Ripon involved an equal
protection challenge to the delegate-allocation formula
adopted by the Republican Party for its 1976 national conven-
tion. We noted that O'Brien had specifically questioned our
finding that decisions by a party credentials committee consti-
tuted state action, and also appeared to narrow the White
Primary Cases. See id. at 575. This gave us "reason to
question the premise of our first line of reasoning in Georgia,
i.e., that the elective processes of individual state parties
constituted state action for all purposes." Id. at 575 n.20.
We also noted that "[e]ven assuming our finding of state
action in Georgia rested ... on the ... placement of the
candidate's name on the [state] ballot," the Supreme Court's
subsequent decisions in "Moose Lodge and Jackson must still
give us pause. Both cases rejected claims of state action
based on the award to the defendants of a state benefit...."
Id. at 575 n.18.21 And we pointed out that the "nexus
between the states and the delegate-allocation formula is
open to question particularly since the Supreme Court has
also now held in Cousins v. Wigoda, 419 U.S. 477 (1975), that
an individual state is without power to interfere with the
delegate selection procedures of a national convention." 525
F.2d at 574. In light of these uncertainties, and because it
was "clear to us that plaintiffs' case must fail on its merits
without regard to whether or not there is state action," we
"decline[d] to decide" the state action question. Id. at 576.

__________
21 In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-77 (1972),
the Court held that the state's issuance of a liquor license to a
private lodge was insufficient to render the lodge's refusal to serve
an African-American "state action." In Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 358 (1974), the Court found that the
state's grant of regulated monopoly status to a privately-owned
public utility was insufficient to make the utility a state actor.

Unfortunately, the question of whether the delegate- or
candidate-selection rules of political parties constitute state
action has not become any clearer since Ripon. Subsequent
Supreme Court decisions dealing with party rules all have
involved conflicts between those rules and state laws, rather
than intra-party disputes like this one. See, e.g., Eu, 489 U.S.
at 216-19; Tashjian, 479 U.S. at 210-13; LaFollette, 450 U.S.
at 109-20. In Flagg Bros. v. Brooks, 436 U.S. 149 (1978),
however, although the Court was not faced with a challenge
to party electoral rules,22 it did in dictum again suggest a
narrow view of the White Primary Cases. Then-Justice
Rehnquist attributed the Court's finding of state action in the
White Primary Cases to a conclusion that the elections in
those cases constituted "public functions." Id. at 158. A
public function, he said, is not simply one "traditionally
performed by governments," but rather one "traditionally
exclusively reserved to the State." Id. at 157-58 (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352
(1974)).23 Moreover, he continued, "[t]he doctrine does not
reach to all forms of private political activity, but encompass-
es only state-regulated elections or elections conducted by
organizations which in practice produce 'the uncontested
choice of public officials.' " Id. at 158 (quoting Terry, 345
U.S. at 484).

If a party must produce the nation's "uncontested choice"
for President of the United States to qualify as a state actor,
the Democratic (or Republican) Party plainly does not qualify.
Nor did the actions of the DNC at issue here involve a "state-
regulated election" in the Flagg Bros. sense. Although argu-
ably the state parties could have read the Fowler letter as
instructing them to keep LaRouche off state primary ballots,

__________
22 The challenge in Flagg Bros. was to a warehouseman's
proposed sale of goods entrusted to him for storage, as permitted
by New York law. See 436 U.S. at 151-52.

23 The quotation from Jackson has been repeated in several
subsequent state action cases. See, e.g., San Francisco Arts &
Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544
(1987); Blum v. Yaretsky, 457 U.S. 991, 1011 (1982); see also
Tarkanian, 488 U.S. at 197 n.18.

there is no allegation that they attempted to do that, and an
affidavit filed by the DNC indicates that it did not intend the
letter to be read in that way. See J.A. 273 (Aff. of Richard Q.
Boylan, Director of Party Affairs and Delegate Selection for
the DNC). In fact, LaRouche participated in all of the state-
run primary elections at issue, and his adherents expressed
their support by voting for him. The rub did not come until
he wanted to use the results of those state-run primaries to
require the Party to accept his convention delegates. At that
point, the DNC simply ignored the results of the primaries
and selected delegates according to internal party rules.24

Nor does a national political convention readily fit the
Flagg Bros. description of a "public function" as one "tradi-
tionally exclusively reserved to the State." Indeed, history is
largely to the contrary. See V.O. Key, Jr., Politics, Parties
and Pressure Groups 475 (1953) (noting that the institution of
the convention "[e]volv[ed] completely outside the Constitu-
tion and laws.... [It is] an extraconstitutional, semiprivate
gathering"). But see id. at 400 ("The national conventions,
creatures of party custom, remain beyond state jurisdiction,
yet state law often prescribes the methods for the choice of
delegates to the convention.") (referring to practice prior to
the decisions in Cousins and LaFollette, discussed infra).25

__________
24 This distinguishes the case from the Eleventh Circuit's find-
ing of state action in a decision by Georgia's "presidential candidate
selection committee" to delete David Duke's name from the list of
potential Republican presidential candidates on the Georgia presi-
dential preference primary ballot. See Duke v. Cleland, 5 F.3d
1399, 1404 (11th Cir. 1993). The Georgia Code established the
committee, named its members (including the Secretary of State of
Georgia and specified state legislative officers), and gave it the
power to delete a name from the list if all committee members of
the same party as the candidate agreed. See id. at 1401-02 & n.1.
The Eleventh Circuit's decision involving a similar committee's
deletion of Duke's name from the list of candidates for the Florida
presidential primary is distinguishable on the same ground. See
Duke v. Smith, 13 F.3d 388 (11th Cir. 1994).

25 The institution of the national nominating convention, which
emerged in 1831, could be regarded as taking a step away from

This brings us back finally to the splintered majority
opinions in Morse, which appear to revive a considerably
more expansive view of state action and the White Primary
Cases than that expressed in Flagg Bros. As noted above,
the opinions of both Justice Stevens and Justice Breyer
rested their conclusions that the party was the "state" for
purposes of the Voting Rights Act on their reading of the
history of the White Primary Cases. Justice Stevens relied
particularly on the fact that Virginia reserved the two top
positions for the major parties to fill with their nominees,
thus delegating to the parties "the power to determine part of
the field of candidates from which the voters must choose."
Morse, 116 S. Ct. at 1195. He essentially rejected Flagg
Bros.' dictum that, to be classified as a state actor, the party
must produce an uncontested choice for the position. "Voting
at the nomination stage is protected," Justice Stevens said,
"regardless whether it 'invariably, sometimes, or never deter-
mines the choice of the representative.' " Id. at 1205 (quoting

__________
state action (at least under certain criteria), as it supplanted nomi-
nation by caucuses of each party's members of Congress as well as
nomination by state legislatures. See Key, supra, at 400-03; Con-
gressional Quarterly, Guide to U.S. Elections 5 (1975). Although
conventions were intended as a step toward the selection of nomi-
nees by the entire party membership, they often came under the
control of party bosses. See id. at 404-07. President Harding, for
example, reputedly won his party's nomination in the infamous
(although possibly apocryphal) "smoke-filled room" at Chicago's
Blackstone Hotel in 1920. See Edward McChesney Sait, American
Parties and Elections 590 n.93 (3d ed. 1942). Although state-run
primaries were introduced in the beginning of the 20th Century, it
was not until 1972 that the parties chose the majority of their
delegates through primaries. See Leonard P. Stark, The Presiden-
tial Primary and Caucus Schedule: A Role for Federal Regulation,
15 Yale L. & Pol'y Rev. 331, 333 (1996). Credentials challenges
have occurred at almost every convention, and the conventions
historically have been the judges of the qualifications of their
members. See Key, supra, at 458-59; Congressional Quarterly,
supra, at 11; see also O'Brien, 409 U.S. at 5 ("[F]or nearly a
century and a half the national political parties themselves have

United States v. Classic, 313 U.S. 299, 318 (1941)). And
"state delegation of selection powers to two adversaries in-
stead of just one state actor does not preclude a finding of
state action." Id. at 1208 n. 36.26 The States' authorization
to the parties to make their own decisions regarding delegate
selection was sufficient, and the absence of "extensive" state
regulation of the process was "irrelevan[t]." Id. at 1196 n.17.

The Justices' opinions in Morse on the constitutional import
of the White Primary Cases do not, of course, represent
holdings on that issue, since the question in Morse was
whether the Virginia Republican Party's actions were those of
a "state or political subdivision" under the Voting Rights Act,
and not whether they where those of a "state" under the
Constitution and s 1983. Nonetheless, Justice Stevens' opin-
ion made clear that he equated the two, and that he based his
conclusion about the Voting Rights Act on his reading of the
constitutional test of the White Primary Cases. See, e.g., id.
at 1206 ("The Voting Rights Act uses the same word as the
Fifteenth Amendment--'state'--to define the authorities
bound to honor the right to vote.... Imposing different
constructions on the same word is especially perverse in light
of the fact that the Act ... was passed to enforce that very
Amendment."). Whether Justice Breyer intended to equate
the two is much less certain. See id. at 1215 (Breyer, J.)
("We need not go further in determining when party activities
are, in effect, substitutes for state nominating primaries
because the case before us involves a nominating convention
that resembles a primary about as closely as one could
imagine."). Justice Thomas, writing for himself, the Chief
Justice, and Justice Scalia, however, had no doubt. He
described both the Stevens and Breyer opinions as "sug-
gest[ing] that the meaning of the statutory term 'State' in s 5
is necessarily coterminous with the constitutional doctrine of
__________
determined controversies regarding the seating of delegates to their
conventions.").

26 That view was in sharp contrast to the view of three of the
dissenters, who would have limited the White Primary Cases to
"state-regulated elections or elections conducted by organizations
which in practice produce the uncontested choice of public officials."
Id. at 1229 (Thomas, J., dissenting) (quoting Flagg Bros., 436 U.S.
at 158).

state action." Id. at 1228 (Thomas, J.); see also id. at 1234
("The basis for today's decision ... can only be the state
action doctrine.").

If the result in Morse signals the Court's future view of
state action in the electoral context, then there would be
grounds for concluding that the Democratic Party's conduct
here constituted state action. As noted in Part IV, the states
have delegated substantial control over the delegate-selection
process to the state party. The states also have given the
candidates that emerge from the national party conventions
various forms of preference in access to the states' general
election ballots. Cf. Mrazek v. Suffolk County Bd. of Elec-
tions, 630 F.2d 890, 894 n.8 (2d Cir. 1980) (suggesting that
nominating procedures must conform to constitutional re-
quirements because "ensured access to the ballot [may] con-
stitute[ ] a form of state action").

But even if a political party could be considered a state
actor, it is at the same time clothed with strong First
Amendment protections against intrusion by the state.27 This
is not simply a matter of dividing the universe of potential
party activities into their public (state) and private (First
Amendment-protected) spheres. The Court's cases have
made clear that the very actions at issue here--the Party's
decisions about who can be nominated as delegates and even

__________
27 See Eu, 489 U.S. at 224 ("It is well settled that partisan
political organizations enjoy freedom of association protected by the
First and Fourteenth Amendments."); Tashjian, 479 U.S. at 214
("The freedom of association protected by the First and Fourteenth
Amendments includes partisan political organizations."); LaFollette,
450 U.S. at 121 (" 'The National Democratic Party and its adherents
enjoy a constitutionally protected right of political association.' ")
(quoting Cousins, 419 U.S. at 487); see also Faulkner County, 49
F.3d at 1295 ("The Supreme Court has located political parties
roughly midway between conventional public and private institu-
tions, attributing to parties elements of both."); cf. Polk County v.
Dodson, 454 U.S. 312, 321, 325 (1981) (holding that "it is the
constitutional obligation of the State to respect the professional
independence" of public defenders, even though some actions of
public defenders may be under color of state law).

about who can be considered a Democrat--are themselves
clothed in First Amendment protection. Indeed, those cases
suggest that if the State of Louisiana had tried to assist
LaRouche by attempting to enforce the results of its primary
(which yielded him one delegate) against the DNC, it would
have been met with the bar of the First Amendment.

For example, the plaintiffs in Cousins v. Wigoda, the
Wigoda delegates, had been elected in the state-run Illinois
primary as Chicago's delegates to the 1972 Democratic Na-
tional Convention. The Cousins delegates, who had been
picked at private party caucuses, successfully challenged the
seating of the Wigoda delegates before the Credentials Com-
mittee on the ground that the latter had been selected in
violation of party rules requiring, inter alia, participation by
minorities, women and youth. The Wigoda delegates coun-
terattacked by obtaining an injunction from an Illinois court
barring the Cousins delegates from taking their seats. See
419 U.S. at 478-81 & n.1. The Supreme Court vacated the
injunction, holding that "[t]he National Democratic Party and
its adherents enjoy a constitutionally protected right of politi-
cal association," id. at 488, that the "subordinating interest of
the State must be compelling ... to justify the injunction's
abridgement of the exercise" of those rights, id. at 489
(internal quotation omitted), and that Illinois' interest in
ensuring that its primary results were honored "cannot be
deemed compelling in the context of the selection of delegates
to the National Party Convention," id. at 491.

The Court followed Cousins in LaFollette. There, the
Court ruled that the Wisconsin Supreme Court could not
insist that delegates chosen through the state's non-partisan,
open primary be seated at the 1980 Democratic National
Convention, when DNC rules provided that only voters
publicly affiliated with the Party could participate in the
delegate-selection process. "The issue," the Court said, "is
whether the State may compel the National Party to seat a
delegation chosen in a way that violates the rules of the
Party. And this issue was resolved, we believe, in Cousins v.
Wigoda." 450 U.S. at 121. Finding that the State did not
have "compelling interests ... [to] justify its substantial

intrusion into the associational freedom of members of the
National Party," the court reversed the Wisconsin court's
decision. Id. at 124-26.

The fact that the actions of the Democratic Party at issue
here themselves have a First Amendment dimension strongly
suggests that we should not apply the usual test for the
validity of electoral restraints imposed by state govern-
ments--even if we were to conclude that the Party is a state
actor. As the Court said in O'Brien, even if party delegate-
selection rules are state action, we still must consider "the
reach of the Due Process Clause in this unique context." 409
U.S. at 4; cf. Ripon, 525 F.2d at 578-79 (noting that a given
constitutional command may impose different requirements
on different parts of the state). We consider the appropriate
test to apply to the DNC rules in the next section, and apply
that test in the one thereafter. We conclude that even were
we to view Rule 11(K) and the Fowler letter as state action,
defendants did not violate constitutional rights guaranteed to
LaRouche and his supporters. For that reason, as we did in
Ripon, we assume without deciding that defendants are state
actors and proceed to the next stage of the analysis.

B

In this section we consider how strictly to scrutinize the
conduct attacked by LaRouche. LaRouche contends that the
appropriate standard is strict scrutiny, requiring the party to
demonstrate that its rules are "narrowly tailored to serve a
compelling interest." Although in the past the Supreme
Court did apply strict scrutiny to state restrictions on candi-
dates and parties seeking access to the ballot, see, e.g.,
Rhodes, 393 U.S. at 31; see also Gerald Gunther & Kath-
leen M. Sullivan, Constitutional Law 890 (13th ed. 1997),
more recent cases have employed the two-pronged approach
described in Burdick v. Takushi, 504 U.S. 428 (1992). Under
this approach, "when [First and Fourteenth Amendment]
rights are subjected to 'severe' restrictions, the regulation
must be narrowly drawn to advance a state interest of
compelling importance." Id. at 434 (internal quotation omit-
ted). However, "when a state election law provision imposes
only 'reasonable, nondiscriminatory restrictions'..., the

State's important regulatory interests are generally suffi-
cient...." Id. (internal quotation omitted); see also Tim-
mons v. Twin Cities Area New Party, 117 S. Ct. 1364, 1370
(1997).

Accordingly, even if we were to apply the Burdick test to
the DNC's rules, it would not necessarily result in strict
scrutiny. LaRouche and his supporters plainly do have First
Amendment interests at stake.28 But if the restrictions im-
posed on plaintiffs are viewed from the standpoint of the
"state's" electoral process as a whole--that is, as a combina-
tion of ballot access provided through both political party
nomination and independent candidacy--it is not necessarily
clear that the restrictions on plaintiffs were "severe." La-
Rouche's adherents still retained the right to express their
political views by supporting other Democratic nominees,
even if they could not nominate LaRouche.29 And LaRouche
retained the right to run, and his supporters the right to vote
for him, as either a third-party or independent candidate.30

__________
28 See Tashjian, 479 U.S. at 214 ("The right to associate with
the political party of one's choice is an integral part of this basic
constitutional freedom."); Anderson, 460 U.S. at 787-88 ("The
exclusion of candidates ... burdens voters' freedom of association,
because an election campaign is an effective platform for the
expression of views on the issues of the day, and a candidate serves
as a rallying-point for like-minded citizens.").

29 Cf. Anderson, 460 U.S. at 791 n.12 (finding burden imposed
by state disaffiliation requirement in Storer v. Brown less severe
than early filing deadline for independent candidates in Anderson
because, "[a]lthough a disaffiliation provision may preclude [inde-
pendent] voters from supporting a particular ineligible candidate,
they remain free to support and promote other candidates"); Tim-
mons, 117 S. Ct. at 1371, 1372 ("[Although] Minnesota's fusion ban
prevents the New Party from using the ballot to communicate to
the public that it supports a particular candidate who is already
another party's candidate," "the New Party remains free to endorse
whom it likes, to ally itself with others, to nominate [other] candi-
dates for office, and to spread its message to all who will listen.").

30 See Storer, 415 U.S. at 728 ("[T]he State must ... provide
feasible means for other political parties and other candidates to
Nor is there any reason to believe that LaRouche's ultimate
chances of becoming President would have been measurably
lessened by taking those routes than by seeking nomination
at the Democratic National Convention--where by his own
count he would have had only two of 4320 delegates. See
Appellants' Br. at 8 n.8; Appellees' Br. at 3. Accordingly,
even if the specific burden imposed on LaRouche by the DNC
Rules were "severe," the overall burden imposed by the
"state" may not have been severe enough to require strict
scrutiny under Burdick.

More importantly, we are not persuaded that the Burdick
test is appropriate for application to this case. That test,
after all, was designed for a challenge to a state law by a
citizen or political party asserting First Amendment rights,
and hence weighs the state's interests against the rights
protected by the Amendment. It was not designed for a case
in which the First Amendment weighs on both sides of the
balance. The application of judicial strict scrutiny to the
internal rules of a political party (setting aside, because they
are not at issue here, party rules that effectively control
state-run primary ballots) simply raises too many troubling
questions. 31

May a court require a political party--itself a First Amend-
ment creature--to show a compelling justification before it

__________
appear on the general election ballot."); cf. Ripon, 525 F.2d at 586
("Theoretically at least, persons dissatisfied with the choice facing
them in [the general] election may gain access to the ballot by
means other than a major party nomination."); Duke v. Massey, 87
F.3d 1226, 1233 (11th Cir. 1996) ("Duke supporters do not have a
First Amendment right to associate with him as a Republican Party
presidential candidate. Duke's supporters were not foreclosed from
supporting him as an independent candidate, or as a third party
candidate in the general election.") (citation omitted).

31 As in Ripon, we also intimate no view about what standard
should apply in a situation, like the White Primary Cases, "where
there is only one party with a realistic chance to win the election,
and where a vote in the nominating process is the only effective
vote that can be cast." 525 F.2d at 589.

may limit a putative candidate's ability to associate himself
with the party? May a court require a political party to show
that such a limitation is narrowly tailored to meet that
compelling justification? The difficulty of the issue is made
manifest by holding it up to a mirror: if a state, finding Rule
11(K) unfair, were to adopt LaRouche's position by statute
(by, for example, outlawing "litmus tests" for party nomi-
nees), could the Party be required to show a compelling
interest for its rule to invalidate the statute? We already
know the Supreme Court's likely answer to this question, as
Cousins and LaFollette presented similar situations. The
answer is that the DNC would not have the burden of
justifying its rule. To the contrary, it is the state that would
have to show that its interest was "compelling ... to justify
the ... abridgment of the exercise by ... the National
Democratic Party of [its] constitutionally protected rights."
Cousins, 419 U.S. at 489; see LaFollette, 450 U.S. at 124; see
also Eu, 489 U.S. at 225 (holding that California law barring
political party from endorsing candidates in primary "can
only survive constitutional scrutiny if it serves a compelling
governmental interest").

But if a state cannot, at the behest of a plaintiff like
LaRouche, require a political party to change its rules unless
it can show a compelling reason for retaining them, then
should it make a difference if a federal court is asked to
impose the same requirement? The federal courts, after all,
act with the authority of the "state" (i.e., the federal govern-
ment), and their intrusion into the First Amendment rights of
a political party can be as invasive as that of any state. Cf.
Tashjian, 479 U.S. at 224 (" '[A] State, or a court, may not
constitutionally substitute its own judgment for that of the
Party.' ") (quoting LaFollette, 450 U.S. at 123-24) (emphasis
added); 32 O'Brien, 409 U.S. at 5 (recognizing that "[v]ital
rights of association guaranteed by the Constitution" are
involved in federal court challenges to party delegate-seating
decisions). As we have noted above, in Cousins the Wigoda

__________
32 Although LaFollette made this statement in the course of
reversing a state court judgment, Tashjian quoted it in the context
of a federal action.

delegates asserted the authority of state law to bar the
Democratic Party from seating delegates elected according to
Party rules. The Court responded that state law could not
support such an intrusion unless the State's interests were
compelling. See 419 U.S. at 489. If the Wigoda delegates
instead had asserted the authority of the U.S. Constitution to
support the same end, would the burden of showing a compel-
ling interest have been completely reversed? We doubt such
a change in argument would have so dramatically altered the
parties' burdens.

There is yet another reason for rejecting the applicability
of strict scrutiny to intra-party rules. One of the principal
triggers for such scrutiny in the usual First Amendment
context is viewpoint discrimination. See, e.g., Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-30
(1995). Yet that trigger is of doubtful applicability in the
political party context. In this case, for example, one of
LaRouche's complaints is that "[t]he very nature of the 'test'
which is embodied in Rule 11(K)"--a test limiting candidates
to "bona fide Democrats"--is by definition "an invasion of the
free speech of candidates." Appellants' Br. at 28. Indeed,
were the State of Louisiana to adopt a similar rule for the
general election--for example, by limiting the ballot to bona
fide Democrats, or to Democrats and Republicans while ex-
cluding independents--there can be little doubt that the
State's law would fall. See Rhodes, 393 U.S. at 32 (invalidat-
ing ballot access law that "favors two particular parties--the
Republicans and the Democrats--and in effect tends to give
them a complete monopoly"); supra note 30; cf. Burdick, 504
U.S. at 434 (applying lesser scrutiny only where state imposes
"nondiscriminatory restrictions").

But it is also obvious that viewpoint discrimination by a
political party is quite another matter. Indeed, it is the sine
qua non of a political party that it represent a particular
political viewpoint. And it is the purpose of a party conven-
tion to decide on that viewpoint, in part by deciding which
candidate will bear its standard: the liberal or the conserva-
tive, the free trader or the protectionist, the internationalist
or the isolationist. Unlike a state, which is largely barred

from making such decisions, a political party must make these
decisions. Since in the end there will be only one Democratic
and one Republican Party candidate on the general election
ballot, their conventions ultimately must choose a political
viewpoint. Surely even plaintiffs would agree that if the
Democratic Party had chosen LaRouche over President Clin-
ton as its candidate in 1996, the choice would have constituted
the expression of a particular political point of view.

In sum, we conclude that even if a political party is a state
actor, the presence of First Amendment interests on both
sides of the equation makes inapplicable the test applied to
electoral restrictions where the First Amendment weighs on
only one side. As the Supreme Court has not yet had to
devise a test for such a case, we return to the one this court
applied the last time it faced a similar situation. In Ripon,
we found that plaintiffs' equal protection interest in the
delegate-selection rules of a political party was "offset by the
First Amendment rights exercised by the Party in choosing
the [delegate allocation] formula it did." 525 F.2d at 588.
Accordingly, we concluded that even if the Party were a state
actor, the Constitution was "satisfied if [the party's rules]
rationally advance some legitimate interest of the party in
winning elections or otherwise achieving its political goals."
Id. at 586-87. Notwithstanding the passage of time since it
was first announced, this test remains the one that best
effectuates the Supreme Court's direction to approach judicial
intervention in this area "with great caution and restraint,"
and to recognize "the large public interest in allowing the
political processes to function free from judicial supervision."
O'Brien, 409 U.S. at 4-5.33

C

We begin the Ripon analysis by noting that the Party
interest at issue is a "legitimate" one. "There are no racial or

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33 While Ripon, unlike this case, involved a "one person, one
vote" challenge, this distinction does not change our analysis.
Notably, the Ripon court thought its case was analogous to others
involving different constitutional challenges, including those under
the First Amendment. See 525 F.2d at 586 n.61.

other invidious classifications here" as there were in the
White Primary Cases. Ripon, 525 F.2d at 588; see also Eu,
489 U.S. at 232 ("This .... is not a case where intervention is
necessary to prevent the derogation of the civil rights of
party adherents."). There is, of course, viewpoint discrimina-
tion at play. But as we have already noted, there is nothing
illegitimate about that kind of discrimination in a political
party's nomination process.

Moreover, the Party's interest is not merely legitimate.
Here, the associational rights of the Democratic National
Party are at their zenith. The Party's ability to define who is
a "bona fide Democrat" is nothing less than the Party's ability
to define itself. In Eu, for example, one of the challenged
state laws "prevent[ed] party governing bodies from stating
whether a candidate adheres to the tenets of the party or
whether party officials believe that the candidate is qualified
for the position sought." 489 U.S. at 223. The Court struck
the law down. "Freedom of association," Justice Marshall
said, "means ... that a political party has a right to 'identify
the people who constitute the association' ... and to select a
'standard bearer who best represents the party's ideologies
and preferences.' " Id. at 224 (quoting Tashjian, 479 U.S. at
214, and Ripon, 525 F.2d at 601 (Tamm, J., concurring)); see
also LaFollette, 450 U.S. at 122 n.22 (" 'Freedom of associa-
tion would prove an empty guarantee if associations could not
limit control over their decisions to those who share the
interests and persuasions that underlie the association's be-
ing.' ") (quoting L. Tribe, American Constitutional Law 791
(1978)).34

The Party's effort to limit the list of candidates who can
represent themselves to the voters as Democrats "rationally

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34 The Eleventh Circuit reached a similar conclusion in Duke v.
Massey, holding that "[t]he Republican Party has a First Amend-
ment right to freedom of association and an attendant right to
identify those who constitute the party based on political beliefs....
Therefore the ... Republican Party did not have to accept [David]
Duke as a Republican presidential candidate. Duke does not have
the right to associate with an 'unwilling partner.' " 87 F.3d at 1234.

advance[s the] legitimate interest of the party in winning
elections." Ripon, 525 F.2d at 586-87. By narrowing the
field of those who represent it, the Party seeks to define its
values, distinguish them from those of its competitors, and
thereby attract like-minded voters. At the same time, it
seeks to prevent confusion among those voters by excluding
from its list of potential presidential nominees those who do
not share those values. Cf. Munro v. Socialist Workers
Party, 479 U.S. 189 (1986) (holding state interest in avoiding
voter confusion, ballot overcrowding, or the presence of frivo-
lous candidates sufficient to justify reasonable restrictions on
ballot access by minor parties). It advances the Party's
ability to "achiev[e] its political goals" in other ways as well.
Id. at 587. As the Court said in LaFollette, when barring
Wisconsin from requiring the Democratic Party to accept
delegates selected through the state's open primary:

Here, the members of the National Party, speaking
through their rules, chose to define their associational
rights by limiting those who could participate in the
process leading to the selection of delegates to their
National Convention. On several occasions this Court
has recognized that the inclusion of persons unaffiliated
with a political party may seriously distort its collective
decisions--thus impairing the party's essential func-
tions--and that political parties may accordingly protect
themselves from intrusion by those with adverse political
principles.

450 U.S. at 122 (internal quotation omitted).

LaRouche, of course, would dispute the applicability of this
passage, arguing that unlike the open primary voters in
Wisconsin, he is not "unaffiliated" with the Democratic Party
and does not have "adverse political principles." But the
Party itself obviously disagrees--and vociferously so. See
J.A. 73-74 (Fowler letter) ("Mr. Larouche's [sic] expressed
political beliefs ... [are] utterly contrary to the fundamental
beliefs, values and tenets of the Democratic Party....").
Nor is the Party required to accept LaRouche's self-
designation as the final word on the matter. Rather, the

Party's "freedom to join together in furtherance of common
political beliefs 'necessarily presupposes the freedom to iden-
tify the people who constitute the association.' " Tashjian,
479 U.S. at 214 (quoting LaFollette, 450 U.S. at 122); see id.
at 224 ("The Party's determination of the boundaries of its
own association ... is protected by the Constitution.").

LaRouche makes clear that his fundamental complaint is
not so much with the Party's right to define itself, but rather
with the "unfair" manner in which he contends it has done so.
Even this claim is less than fully developed. Although he
complains of the vagueness of the "bona fide Democrat"
standard, he proposes no alternative substantive definition,
and we can think of none that a court could impose within the
strictures of the First Amendment. Indeed, LaRouche does
not even propose an alternative set of procedures for select-
ing delegates, nor does he insist that the only fair procedure
would be to seat any delegate whose candidate won sufficient
votes in a primary. Instead, he asks only that the Party be
enjoined "from promulgating similar provisions as found in
Rule 11(K), in the future." Compl. p 150 (J.A. 49).

The answer to this aspect of LaRouche's complaint is that
the Party's First Amendment rights extend not only to
defining itself, but also to determining how to define itself.
The Supreme Court made this point in both Cousins and
LaFollette by upholding the Party's right to determine who
could select its delegates, notwithstanding the states' views
that a different process would be more appropriate. See, e.g.,
LaFollette, 450 U.S. at 124 ("A political party's choice among
the various ways of determining the makeup of a State's
delegation to the party's national convention is protected by
the Constitution."). The Court faced a similar question again
in Eu, where the California Elections Code dictated, among
other things, the organization and composition of the state
parties' official governing bodies. To ensure fairness to the
state's various regions, the Code required that the position of
party chair rotate between residents of northern and south-
ern California. See 489 U.S. at 216. Citing its decisions in
Cousins and LaFollette, the Court struck the law down,
saying: "[A] political party's determination ... of the struc-

ture which best allows it to pursue its political goals is
protected by the Constitution. Freedom of association also
encompasses a political party's decisions about the identity of,
and the process for electing, its leaders." Eu, 489 U.S. at 229
(internal quotations and citations omitted). "[A] State can-
not," the Court said, "substitute its judgment for that of the
party as to the desirability of a particular internal party
structure." Id. at 233.

This court reached the same conclusion in Ripon, where we
rejected the contention that the Equal Protection Clause
required the Republican Party to allocate its national conven-
tion delegates on a one-person, one-vote basis. In letting
stand the Party's practice of awarding "victory bonuses" to
states voting Republican in prior elections, we observed:

A party is .... more than a forum for all its adherents'
views. It is an organized attempt to see the most
important of those views put into practice through con-
trol of the levers of government. One party may think
the best way to do so is through a 'strictly democratic'
majoritarianism. But another may think it can only be
done (let us say) by giving the proven party professionals
a greater voice....

Ripon, 525 F.2d at 585 (footnote omitted).

A party may, of course, pay heavily at the polls for the
perception that it treats its members, delegates, or candidates
unfairly. But that is a matter for the party to weigh, and for
the people to decide in the general election. It is not a basis
upon which a court can intervene as long as the party's
processes rationally advance its legitimate interests.

Rule 11(K) and the Fowler letter were issued pursuant to
the authority duly granted to the DNC and Chairman Fowler
by the Charter and Bylaws of the Democratic Party.35 If

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35 The Charter of the Democratic Party provides that "dele-
gates shall be chosen ... according to the standards ... as may be
specifically authorized by the Democratic National Committee in
the Call to the Convention." See Charter of the Democratic Party
of the United States art. 2, s 4 (1995) (J.A. 281). The Bylaws

LaRouche disputed Fowler's authority or conclusions, the
place to take that dispute was to the national convention's
Credentials Committee and, if he received no satisfaction, to
the floor of the convention itself.36 As the Supreme Court
said in O'Brien, "[i]t has been understood since our national
political parties first came into being as voluntary associations
of individuals that the convention itself is the proper forum
for determining intra-party disputes as to which delegates
shall be seated." 409 U.S. at 4.37 Because the First Amend-
ment protects the decisions made by defendants in this case,
we are unable to afford plaintiffs the relief they seek.38

__________
provide that "the Chairperson ... shall exercise authority delegat-
ed to him or her by the Democratic National Committee." See
Bylaws of the Democratic Party of the United States s 12 (1995)
(J.A. 296).

36 The Call for the 1996 Democratic National Convention pro-
vided that "[t]he Credentials Committee shall determine and re-
solve questions concerning the seating of delegates and alternates
to the Convention.... The committee shall report to the Conven-
tion for final determination and resolution of all such questions."
The Call for the 1996 Democratic National Convention art.
VII(I)(1) (J.A. 325). The Convention is "the highest authority of
the Democratic Party," Charter of the Democratic Party of the
United States art. 2, s 2 (J.A. 281), and its adoption of the
Credentials Committee report determines the final roll of those who
may be seated at the Convention, see J.A. 277 (Boylan Aff.).

37 Since the Credentials Committee forum was available to
resolve LaRouche's complaint before the contested delegates were
formally seated, we reject his brief suggestion that the DNC
deprived him of a liberty interest without an "opportunity to be
heard," in violation of the Due Process Clause. In any event, our
conclusion that the Constitution protects the decisions the Party
made here would render such a procedural due process claim
untenable. We also reject LaRouche's contention that Fowler's
characterization of his political beliefs as "racist and anti-Semitic"
deprived him of a "liberty" interest without due process of law. See
Siegert v. Gilley, 500 U.S. 226, 233 (1991).

38 This conclusion applies to plaintiffs' claims against all of the
defendants, who include state party officials and committees as well

VI

The district court's dismissal of the complaint as to the
District of Columbia Democratic Party, the District of Colum-
bia Democratic State Committee, and the Chairman of the
District of Columbia Democratic State Committee is affirmed.
Plaintiffs' claims against the remaining defendants under
section 5 of the Voting Rights Act are remanded to the
district court for the convening of a three-judge court. The
district court's dismissal of plaintiffs' claims under all other
statutory and constitutional provisions is affirmed.

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as Fowler and the DNC. Plaintiffs' constitutional claims do not
differentiate among the groups of defendants, nor do they suggest
that the state defendants did anything other than obey the instruc-
tions of Fowler and the DNC.