(dissenting).
I believe that a remand for the convening of a three-judge court to consider the constitutionality of the Delaware statutes or of the Republican party rule is neither necessary nor desirable.
I.
A brief review of the background of this litigation may be helpful for an understanding of my specific objections to the remand required by the majority.
Under current Delaware law, no one may get onto a party primary ballot unless he received at least 35% of the vote at the party’s nominating convention. If a person seeking his party’s nomination as a candidate in the general election receives 50% of the delegate vote at the nominating convention, and no other person receives at least 35% of the vote, that person becomes the party’s nominee. 15 D.el.C. §§ 3116, 3301(c)(i).1 If an ■ additional person receives at least 35% of the vote, at his request a party primary is held. 15 Del.C. § 3116. The person receiving a majority of the at-large votes in the party primary is certified as the party nominee. 15 Del.C. § 3301(c) (i), (ii). The ultimate party nominee will therefore have either been nominated at the convention or will win a primary that was required as a result of the convention vote.
Because of the significance of the nominating convention in the selection of the party’s ultimate nominee, the allocation of delegates to the convention is crucial. As no state statute specifically addresses this question, allocation is determined by party rule. The State Republican Committee allocates 120 of 220 delegates to four convention districts of disparate population on the basis of 30 delegates to each district. The remaining 100 delegates are allocated among the four districts on the basis of one delegate for each 1% of the statewide Republican party vote which was cast by voters in that district during the preceding presidential election. Rule 2, Republican State Committee. The Republican party delegate allocation formula is challenged in this appeal by the voters of the most populous convention district, New Castle County, on the ground that the allocation denies them equal voting strength in the party nominating process, in violation of the Equal Protection Clause of the Fourteenth Amendment.
The district court granted plaintiffs’ motion for summary judgment, holding that the Republican party delegate allocation formula was unconstitutional.2 Because of the disparity of population in the four convention districts, it held that the allocation of an equal number of delegates to each district (i. e., 30) results in highly disproportionate voting strength. The court enjoined all future use of the allocation formula and further ordered the state committee to devise an allocation formula consistent with the one-man, one-vote principle. The court held that the party function in nominating -candidates for statewide and national office constituted “state action,” and that the one-man, one-vote principle applied to nominating conventions. The court considered and rejected contentions regarding the “political” nature of the controversy, the alleged justifications for the formula, and the propriety of a three-judge court as opposed to a single-judge court.3 The defendants have appealed.
Neither Judge Gibbons nor Judge Al-disert reach the merits of this contro*1131versy. For somewhat different reasons, each would remand the case to a three-judge court, unless the plaintiffs withdraw their request for injunctive relief.
II.
I first consider the approach taken by Judge Gibbons. He would remand the case to the district court with directions to consider the constitutionality of 15 Del.C. § 3116 and § 3301(c). As I read his opinion, the denial of equal voting strength to voters in the Republican primary flows from the combination of (1) the party rule that provides for equal allocation of convention delegates to districts unequal in population, and (2) the state statute that limits candidates in a party primary to those who received at least 35% of the delegate vote at the party’s nominating convention. •
Judge Gibbons suggests that this denial of equal voting strength can be remedied by two alternative means if necessary to avoid a constitutional violation. The first alternative, which was the approach taken by the district court, is to invalidate the party rule, in effect upholding the state statute. The result is a party nominating convention in which delegates are apportioned on a one-man, one-vote basis. The second alternative, proposed by Judge Gibbons although neither presented to nor considered by the district court, is to allow the party rule to stand but to declare unconstitutional the Delaware statute that limits candidates in a party to those receiving at least 35 % of the vote at the nominating convention, § 3116. The effect would be to create a primary open to all Republican party members and to limit the power of the convention to nothing more than an endorsement of a candidate. Because the ultimate party nominee would be selected at an at-large primary election on a one-man, one-vote basis, no denial of equal voting rights would occur.
I disagree for several reasons with Judge Gibbons’ direction to the district court to consider the constitutionality of § 3116 on remand. An appellate court should not suggest the drastic alternative of declaring a state legislative enactment unconstitutional, when none of the litigants request such relief. Although the complaint lists two Delaware statutes, § 1014 and § 3301(c),5 the statute with which the majority is concerned, § 3116,6 is nowhere mentioned in *1132the complaint. Nor do I believe that a fair reading of the complaint allows the inference that the plaintiffs sought to attack the constitutionality of § 3116. In the course of briefing in the district court, moreover, plaintiffs expressly disclaimed any challenge to the constitutionality of Delaware statutes, directing their attack solely to the party rule. In response to a suggestion by defendants that a three-judge court was required in light of the complaint, plaintiffs stated:
In the present case, plaintiffs challenge the constitutionality of the delegate apportionment formula utilized by the State Republican Committee, under color of state law, in allocating delegates among the four Convention Districts. The immediate source of this unconstitutional result is Rule 2 of the Rules of the Republican State Committee, not any statute of the State of Delaware. Therefore, a three-judge court is not required and would not be proper in the present case.
Plaintiffs’ Reply Brief in Support of their Motion for Summary Judgment, at p. 31; Docket No. • 21. Significantly, neither did the defendants raise the alternative of the uneonstitutionality of § 3116.
Moreover, even were the constitutionality of both Rule 2 and of § 3116 at issue in the district court, I believe that the constitutionality of the rule should be considered before the constitutionality of the statute is reached. This approach is dictated by traditional judicial deference to state legislatures, and judicial reluctance to declare state regulatory programs unconstitutional.
Judge Gibbons would no doubt maintain that departure from the traditional deference to state regulatory programs is warranted in the instant case because of the Republican party’s interest in freedom of association. I am unpersuaded by this argument for three reasons.
First, I believe that the majority’s concern with the party’s first amendment rights should be directed to the preliminary question of whether the party activity is “state action.” See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Judge Gibbons states, without extended discussion, that the district court’s findings in favor of state action are “obviously correct.” At this point I believe that the quasi-governmental entity’s freedom of association is no longer of central importance.
Second, even assuming we should consider the party’s first amendment interests, I do not believe that invalidating the state statute would significantly avoid interference with the party’s freedom to associate. Invalidating the statute would permit any party member to challenge in a primary the convention’s choice of candidates. In the primary, party voters may not give deference to the convention’s choice. To the extent that this is true, invalidating the statute, or invalidating the rule directly, would result in the same interference with the party’s first amendment interest in the convention process.
*1133Finally, invalidating the statute while upholding the party rule would result in (1) the present convention delegate allocation based on factors other than population or party voting strength, combined with (2) unlimited access to the primary ballot by party members desiring to challenge the candidate endorsed by the convention. Invalidating the rule while upholding the statute would result in (1) a convention delegate allocation based entirely upon population or party voting strength, combined with (2) access to the primary ballot limited to those receiving at least 35% of the vote at the nominating convention. As Judge Gibbons notes, the political parties in Delaware were no doubt influential in obtaining passage of the statute limiting access to the primary ballot. It is by no means clear, therefore, that the Republican party would prefer the first set of conditions to the second set. It is thus difficult to understand Judge Gibbons’ conclusion that invalidating the statute presents less of an intrusion into the party’s first amendment interests than does invalidating the rule.
III.
I now turn to the approach taken by Judge Aldisert. Apparently concluding that the constitutionality of § 3116 need not be considered by the district court on remand, he states that “whether a three-judge court should be convened depends on whether Rule 2 qualifies as an administrative regulation.” He answers this question in the affirmative. As I read his opinion, he reasons that given the context of the Delaware election system, once there is a finding that the rule involves state action, the rule becomes a state administrative order within the meaning of 28 U.S.C. § 2281.7 Judge Gibbons, although he does not decide the question, appears to agree that even a challenge directed solely to the party rule requires the convening of a three-judge court. As discussed below, I disagree with this conclusion.8
The Supreme Court has repeatedly stated that “the three-judge court statute is to be strictly construed.” 9 Considerable significance, therefore, must be attached to the point, apparently conceded by Judge Aldisert, that in this case the literal requirements of § 2281 have not been met. The party rule is not a state statute or order of a state administrative board or commission, and the private defendants are not state officers. •
Moreover, there is no reason in this case to expand the scope óf § 2281 beyond its literal language. The Supreme Court has stated that § 2281 provides
procedural protection against an improvident statewide doom by a federal court of a state’s legislative policy.
Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941) (emphasis supplied). The state *1134has expressed no legislative interest in any particular Republican party delegate apportionment formula, as is evidenced by the complete silence of the Delaware statutes on the question.
I note that even under present judicial construction, the scope of the term “State statute” under § 2281 is narrower than the scope of “state action” under the fourteenth amendment. A three-judge court is required under § 2281 “not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined.” Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967). Thus, state statutes of local application, although clearly state action, do not come within § 2281. See Moody v. Flowers, supra. I do not believe, therefore, that when a nominally private group promulgates a rule which is held to be “state action” for fourteenth amendment purposes, that rule is then automatically a state statute or administrative order for purposes of § 2281 and the nominally private defendants are then automatically state officers within the meaning of the statute.10
In any event, even if Rule 2 of the Republican party could somehow be deemed a state administrative order under § 2281, I do not believe that the rule meets the judicially imposed requirement that it be of statewide application. The rule, although it applies to Republicans spread throughout the state, does not apply to any other political party. This situation is similar to that in Board of Regents, supra. The Supreme Court there held that § 2281 did not apply to a challenge to a rule promulgated by the State Board of Regents which did not apply to all the public institutions of higher education in the state, even though the institutions to which the rule did apply were spread throughout the state.
For these reasons, I perceive no justification for an expansion of the circumstances under which a three-judge court is required. This is particularly true in light of the many competing demands on judicial resources arid the heavy burden imposed on the Supreme Court by direct appeals from three-judge courts.
In view of the disposition of the case by my colleagues, I do not discuss the issue of the constitutionality of Rule 2.
. Party conventions are required to continue roll call votes until at least one nerson receives greater than 50% of the vote. 15 Del.C. § 3301(c).
. The district court stated :
The Court does find and declare . . . that the State Convention delegate allocation formula set forth in Rule 2 of the Republican State Committee violates plaintiffs’ rights under the equal protection clause of the Fourteenth Amendment.
Redfearn v. Delaware Republican State Committee, 362 F.Supp. 65, 74 (D.Del.1973).
. The court rejected the three-judge court contention on the ground that plaintiffs’ challenge was to the party rule and not to a state statute or administrative order.
. 15 Del.C. § 101 defines a party as follows:
“Party” or “political party” means any 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.
. 15 Del.C. § 3301(c) provides:
No candidate for the office of elector of president and vice president, United States senator, representative in congress, governor or other state officer to be voted for on a statewide basis, shall be deemed nominated and no certificate of nomination for such candidate shall be made or filed, nor shall the name of any such candidate be placed on the ballot in any general election in this State, unless the candidate:
(i) shall have been so nominated by receiving more than 50% of the eligible delegate vote on the final polled vote of a State nominating convention of the political party advancing his candidacy, at a convention held not later than the 4th Saturday in July in the year of such general election and who was not required to run in a primary election ; or
(ii) shall have received a majority of the votes cast by registered voters of the political party advancing his candidacy at a statewide primary election held pursuant to the provisions of Chapter 31 of this title.
No such state nominating convention shall have completed its business relative to such nominations until such time as 1 nominee for each of the aforesaid offices shall have received a vote greater than 50% of the total number of eligible delegate votes at such convention, which polled vote shall be considered final.
. 15 Del.C. § 3116 provides:
The presiding officer and secretary of the convention of any political party shall certify *1132to the several departments of elections, the state election commissioner, and the secretary of state, the names of all persons receiving at least 35% of the eligible votes cast on the final polled vote in the convention for the nomination of United States senator, representative in congress, governor and other state offices. The final polled vote shall be when 1 of the nominees for each of the above offices shall have received a vote greater than 50% of the total number of eligible delegate votes at such convention. Such certification shall be made within 5 days of such final vote. When the names of 2 such persons are so certified with respect to any office, a primary election shall be held on the Saturday immediately following the 1st Monday in September in all districts in which votes may be cast at the general election for that office and in the same manner as elsewhere provided in this title for primary elections, provided that the person receiving the lesser number of votes cast at the convention with respect to any office, shall, within 5 days of such final vote give notice pursuant to section 3107(a)(1) and (b) of this title.
. 28 U.S.C. § 2281 provides :
An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.
. I agree with Judge Aldisert’s implicit conclusion that the challenge to Rule 2 is not a challenge to any Delaware state statutes “as applied.” Rather, the attack on the rule is an attack on the “unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional,” and therefore does not require a three-judge court. Ex Parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1940). See also United States v. Christian Echoes Ministry, 404 U.S. 561, 565, 92 S.Ct. 663, 30 L.Ed.2d 716 (1972); Griffin v. School Board, 377 U.S. 218, 228, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).
. Board of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 655, 30 L.Ed.2d 697 (1972). See also, Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
. See Smith v. State Executive Committee, 288 F.Supp. 371, 374 (N.D.Ga.1968) (attack on party rule does not require three-judge court as no attack was made on underlying statute) (dictum); Maxey v. Washington State Democratic Committee, 319 F.Supp. 673 (W.D.Wash.1970) (single judge holds party rule on delegate allocation unconstitutional, without discussion of three-judge courts); Bond v. Dentzer, 325 F.Supp. 1343, 1348-1350 (N.D.N.Y.1971) (attack on state wage assignment statute does not require three-judge court, despite naming of state officer who “plays no role in implementation of [challenged statute]” which is self-implementing; private party defendants are not state officers within meaning of § 2281); Klim v. Jones, 315 F.Supp. 109, 112-113 (N.D.Cal.1970) (attack on state innkeeper’s lien statute does not require three-judge court “because no . . . state or local officer has been named as a defendant or is sought to be restrained”); Adams v. Egley, 338 F.Supp. 614, 616-617 (S.D.Cal.1972) (attack on state commercial code provisions authorizing repossession after default of debtor does not require three-judge court “since no action of either a state or local officer is sought to be restrained”). See also Dahl v. Republican State Committee, 319 F. Supp. 682, 683 (W.D.Wash.1970). But see Harper v. Vance, 342 F.Supp. 136, 139 (N.D. Ala.1972) (challenge to party rule requiring filing fees requires three-judge court as rule constitutes order of state - “administrative board”).