(concurring).
Although I find the nagging single-judge-statutory court issue most troublesome and not free from doubt, as long as plaintiffs insist on injunctive relief, I am persuaded that a three-judge court is necessary. This case presents a collision between countervailing principles: (1) an allegation of unconstitutional application of an otherwise constitutional statute for which a three-judge court is not necessary, see, Spencer v. Kugler, 454 F.2d 839, 844 (3d Cir. 1972), and (2) a challenge to a statewide rule of a political party so inexorably intertwined with the state’s election process that it must be considered a challenged administrative regulation of statewide operation, thus necessitating a three-judge court if an action is sought to enjoin its use. Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).
In Redfearn v. Delaware Republican State Committee, 362 F.Supp. 65, 67 (D.Del.1973), we learn:
The Delaware Republican Party is, as defined by 15 Del.C. § 101, a “political party, organization or association which elects delegates to a National Convention, nominates candidates for electors of President and Vice-President, United States Senator, Representative in Congress, Governor, and other offices, and elects a State Committee and officers of a State Committee by .a State Convention composed of elected members from each Representative District, provided a registered party member is available in each Representative District.” [Footnote omitted.]
In large measure Rule 2 of the Republican Party controls the selection of delegates in an annual state convention composed of 220 delegates. Any person desiring to stand for election as a delegate must comply with the provisions of 15 Del.C. § 3107(a)(2)(ii). Other Delaware statutes control the day of the primary election, state payment for the primary election, and as Judge Latchum summarizes: “In all other respects the voting procedure of the Republican primary election is conducted according to the State’s general election laws.” 362 F.Supp. at 68.
This Republican Party rule governs the composition of the convention which in turn determines whether one’s name may go on the Delaware ballot as a candidate in the primary. All of this relates to statewide operation and, except by name and form, it has all force and efficacy of an official regulation promulgated by a state agency. It is clear that a three-judge court is required where there is a federal constitutional challenge to a state regulation. Thus whether a three-judge court should be convened depends on whether Rule 2 qualifies as an administrative regulation. The rule is statewide. Where activities of a political party directly affect the electoral process, those activities are said to constitute state action. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). I would hold that the Delaware Republican State Committee, in this context, has the responsibilities of a statewide administrative agency, that its Rule 2 has the efficacy of an administrative regulation, and that a challenge thereto requesting injunctive relief requires a three-judge court.