dissenting:
The majority indicates that the plan which plaintiff seeks to have implemented is at variance with the four formulas sanctioned by the National Democratic Party. This view materially diminishes the facts that the plan presently at issue was approved by the Compliance Review Commission of the Democratic National Committee as well as the position of this committee in its amicus brief which urges the adoption of the relief sought by plaintiff.
The majority’s reservation that a national political party will formulate delegate apportionment plans to be implemented at State expense implies the consideration that a national political party will devise a selection method imposing an undue financial burden upon the taxpayers of this State. I do not believe that a national political party would act in such an irresponsible manner, and the plan now sought to be implemented certainly does not entail a financial burden in excess of that created by section 7 — 14.1. Moreover, the General Assembly is not without recourse to prevent a potential abuse because it could amend section 7 — 6 of the Election Code relating to primary expenses to deal with such a situation.
Further, I do not agree with the majority’s constitutional implication concerning the “ Tunneling’ function assigned to the court.” The terminology utilized by plaintiff is unfortunate but does not raise a constitutional impairment for relief.
The majority has severely restricted the impact of Cousins v. Wigoda, wherein the Supreme Court stated:
“But respondents overlook the significant fact that the suffrage was exercised at the primary election to elect delegates to a National Party Convention. Consideration of the special function of delegates to such a Convention militates persuasively against the conclusion that the asserted interest constitutes a compelling state interest. Delegates perform a task of supreme importance to every citizen of the Nation regardless of their State of residence. The vital business of the Convention is the nomination of the Party’s candidates for the offices of President and Vice President of the United States. To that end, the state political parties are ‘affiliated with a national party through acceptance of the national call to send state delegates to the national convention.’ Ray v. Blair, 343 U.S. 214, 225 (1952). The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to National Political Party Conventions were left to state law ‘each of the 50 states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result.’ ” (Emphasis added.) (419 U.S. at 489-90, 42 L. Ed. 2d at 604-05, 95 S. Ct. at 548-49.)
I do not believe that the aforesaid language imparts a restrictive meaning upon the Cousins decision.
The majority seems to fault plaintiff for not seeking enactment of formula No. 1 by the legislature or adoption of Alternative B by the National Committee. There are four formulas devised by the National Democratic Committee, and this court is not in a position to pass upon the merits of any one plan. In any regard this consideration does not appear to have relevant bearing on disposition of this case. And it should be further noted that Alternative B does not comport with the formulas or variation thereof authorized by the National Democratic Committee.
The majority closely scrutinizes the various statutory and party selection formulas, concluding that plaintiff’s plan would result in an unjustified change in the number of delegates from several congressional districts. The majority deems the inclusion of the factor of the 1974 Democratic Party primary as crucially significant in rejection of plaintiff’s plan. Apparently the majority has determined that inclusion of this factor in allocating delegates to each congressional district is not an accurate indicator of actual party strength. It should be noted that inclusion of the factor pertaining to the number of votes cast by voters for the Democratic presidential candidate in 1972 in allocating delegate strength in Alternative B may be said to create the same speculation. Barring definite establishment of some constitutional deprivation, which has not been done in this case, I do not find that inclusion of the results of the 1974 primary as a factor in delegate allocation is improper, nor do I believe it to be the function of this court to consider the wisdom or unwisdom of any particular plan.
Finally, the majority finds that factual matters are presented which might pose a question as to the continuing viability of the Touhy plan. To support this conclusion the majority observes that State legislation to implement the Touhy plan has not been enacted, and the majority quotes from paragraph 19 that “This plan is dependent upon passage of legislation ***.”
I would reemphasize that Alternative B is in conflict with the formula that is acceptable to the Democratic National Committee. In the latter’s amicus brief it is candidly said that “The delegate selection procedure required by existing Illinois state law conflicts with the approved Plan and with the Delegate Selection Rules adopted by the Democratic National Committee.” In light of the decision of Cousins v. Wigoda, 419 U.S. 477, 42 L. Ed. 2d 595, 95 S. Ct. 541, the assertion of the Democratic National Committee as to the existence of such conflict must be given substantial import. See also O’Brien v. Brown, 409 U.S. 1, 34 L. Ed. 2d 1, 92 S. Ct. 2718.
I disagree with the majority in its interpretation of the failure to enact legislation to implement the Touhy plan. Such basis should not be the reason to procedurally defeat consideration of plaintiff’s claim, especially in view of this court’s observation that mandamus may be an appropriate remedy in situations where the traditional elements of this action have not been present. (See People ex rel. Rice v. Cunningham, 61 Ill.2d 353, 356.) Moreover, had legislation to which the majority refers been enacted, plaintiff would have had no reason to seek relief.
The broad assertion that a question of whether the “Touhy plan remains viable” is unclear. But if the majority opinion is to be read as suggesting that legislative action is preeminent for consideration of the merits of this case or is a condition precedent to actual implementation of the Touhy plan by the National Democratic Committee, such reliance is misplaced. The State does not possess a compelling interest in the selection of delegates to a national party convention and in determination of their eligibility or qualifications. (Cousins v. Wigoda, 419 U.S. 477, 42 L. Ed. 2d 595, 95 S. Ct. 541.) The language to which reference is made in paragraph 19 of the Touhy plan may be construed as merely a recognition of the existing conflict and the normal attempt to be made for orderly implementation of the formula approved by the Democratic National Committee without resort to extraordinary activity to implement the plan. Moreover, the present posture of the Democratic National Committee can hardly be construed as an abandonment of the Touhy plan.
The majority has not advanced convincing reasons for rejection of plaintiff’s claim, and for this reason I respectfully dissent.