Cousins v. Wigoda – Oral Argument – November 11, 1974

Media for Cousins v. Wigoda

Audio Transcription for Opinion Announcement – January 15, 1975 in Cousins v. Wigoda

del

Wayne W. Whalen:

72, in which 59 respondents were elected as delegates to the 1972 Convention.

On March 31, 1972, 10 petitioners filed the challenge in accordance with the rules of the Democratic National Party contending that respondents have violated National Party rules.

And that they’ve discriminated invidiously and substantially on the basis of race against women and young people and that they had held secret and close slate making meetings, all in express violation of the National Party rules.

On April 19, 1972, the respondents filed the complaint in the Circuit Court of Cook County, alleging that respondents because they were elected in accordance with state law, were the only delegates who could be seated at the 1972 Convention.

Petitioners sought to remove that case to the Northern District of Illinois federal court.

The motion to remand the case was granted on the grounds that no constitutional or federal question was presented by the case.

Petitioners also sought to enjoin the action in the state court pursuant to Section 1983, an injunction was issued for time but was subsequently vacated by the Seventh Circuit Court of Appeals and stay of the Seventh Circuit Court was denied by Mr. Justice Rehnquist in Chambers.

Pursuant to the National Party rules, on May 31, June 1, and June 8, 1972, hearings were held in Chicago at which both respondents and petitioners participated presenting argument, filing motions, presenting witnesses and documentary evidence all before a hearing examiner appointed by the Democratic National Committee, Mr. Cecil F. Poole.

On June 25, 1972, Mr. Poole issued a report in which he upheld the allegations of petitioners and that is that respondents had discriminated invidiously and substantially on a basis of race and against women and young people.

He also found that respondents had conducted closed and secret slate meetings in violation of National Party rules and he also found that respondents had no rules for governing their procedures, although, that too was required by Democratic National Party rules.

Potter Stewart:

Who are the respondents?

Wayne W. Whalen:

The respondents are the 59 delegates selected in accordance with the Illinois Election Code.

Potter Stewart:

The delegates themselves?

Wayne W. Whalen:

They were the delegates that were elected according to the Illinois law.

That’s correct.

Potter Stewart:

Right.

Thank you.

Wayne W. Whalen:

In late June 1972, petitioners held caucuses throughout the City of Chicago in which they selected an alternative delegation.

The delegates — the candidates for delegate who had been on the ballot on March 17th but which had not violated the National Democratic Party rules selected an alternative delegation, 59 — essentially, the 59 petitioners in this case.

On June 30, 1972, —

William J. Brennan, Jr.:

Are the 59 petitioners include any of the 59 respondents who elect?

Wayne W. Whalen:

No, they do not.

All the 59 respondents were found to have violated the National Party rules, Your Honor.

On June 30, 1972, after a highly publicized and intense debate before the Credentials Committee of the Democratic National Party, the Credentials Committee ruled to seek petitioners and not to grant respondents’ credentials to the 1972 Convention.

The Credentials Committee expressly rejected respondents’ claim that state law exclusively governs the selection of delegates to the 1972 Convention.

In minority report of the Credential’s Committee favoring respondents’ position was filed with the 1972 Democratic National Convention.

On Monday, July 3, 1972, respondents filed and action in the Federal District Court for the District of Columbia in which they sought to reverse the decision of the Credentials Committee.

They alleged that they have been exclusive — they have been elected in accordance with state law and therefore were entitled to be seated.

They also alleged violation of constitutional rights under the First and Fourteenth Amendments.

On the same day, July 3rd, the Federal District Court Judge Hart dismissed respondents’ complaint.

Wayne W. Whalen:

Now, the Credentials Committee had also voted to unseat the part of the delegates which had been elected in accordance with the California primary law and to seat in it instead that delegation selected by appointment of the presidential contenders other than Mr. McGovern.

That delegation, the unseated California delegates also brought an action in Federal District Court and their complaint was also dismissed by Judge Hart.

On the 4th of July, the day after the dismissal by Judge Hart, the Court of Appeals for the District of Columbia combined both the California and the Illinois cases for oral argument.

Oral argument was heard on the 4th of July.And on July 5th, the Court of Appeals issued its ruling.

The Court said and expressly approved the resolution of the Credentials Committee seating petitioners and unseating our respondents.

To protect this jurisdiction, the Court of Appeals also granted an injunction to prohibit the Illinois respondents from proceeding in any other Court.

On the same day the respondents’ petitioned this Court for writ of certiorari and for a stay of the elec — of the Court of Appeals of the District of Columbia decision.

On the evening of July 7, 1972, this Court’s opinion issued granting a stay of both the Illinois and the California decisions of the Court of Appeals but also expressly denying — expressly refusing to act on respondents’ petition for writ of certiorari.

The following evening, July 8th, respondents petitioned the Circuit Court of Cook County for an injunction to enjoin the petitioners from participating as the delegates from the Chicago districts in the 1972 Convention.

Petitioners did participate in that convention and after a hard fought political battle, after which numerous comprises were offered and rejected by various parties, the 1972 Convention upheld the ruling of a hearing examiner and the holding of its Credentials Committee that respondents had violated National Party rules and that National Credential should be awarded to petitioners and not to respondents.

On August 2, 1972, briefly after the convention was over, respondents again went to the Circuit Court of Cook County and sought an injunction against petitioners from participating from in the selection of National Committee Men and Committee Women from Illinois.

On October 10, 1972, this Court remanded the case of Keane v. National Democratic Party to the Court of Appeals for the District of Columbia.

And on February 16, 1973, the Court of Appeals for the District of Columbia found that the National Convention had acted within its confidence in granting its credentials to petitioners and refusing the credentials to respondents.

The Court of Appeals found the case moot but nonetheless affirmed the decision of Judge Hart dismissing respondents’ complaint.

On September 12, 1973, the Illinois’ appellate court affirmed the two injunction orders of the Circuit Court of Cook County.

The Illinois appellate court found that Illinois law was exclusive and convention rules and national rules were of no effect and that the Illinois law exclusively govern the election of delegates to the convention and the convention was without power or authority to refuse the seat them.

The Supreme Court of Illinois declined to review the Illinois appellate court decision.

Warren E. Burger:

In the — under Illinois law do that delegation at that stage have any authority or power other than the election of the members of the National Party Committee?

Wayne W. Whalen:

That was the —

Warren E. Burger:

Or have all of their other functions expired?

Wayne W. Whalen:

All of their functions had expired with the exception of the power to select the National Committee Men and Committee Women.

Warren E. Burger:

Is the — are the delegates then discharged once that function is performed?

Wayne W. Whalen:

No, they’re not.

They still continue to hold office as delegates to —

Warren E. Burger:

Until the next convention?

Wayne W. Whalen:

Until the next convention.

William J. Brennan, Jr.:

Or the next file reading?

If the Illinois law is cooperative, I’ll take it that it would be another primary for the selection of the delegates?

Wayne W. Whalen:

There will be another primary Your Honor.

But our position is that a person is not a delegate until he’s been granted the credentials by the appropriate authority of the National Party.

William J. Brennan, Jr.:

Well, what I’m trying to get at is if the Illinois appellate court is correct and then under Illinois law there would be another election where they’re not a delegate?

Wayne W. Whalen:

The Illinois appellate court simply sustained the injunction of the Cook County Court which prohibited petitioners from acting in anyway its delegates, for holding themselves out as delegates.

William J. Brennan, Jr.:

But the respondents act as delegates only until they’re replace under Illinois law by another election, isn’t that true?

Wayne W. Whalen:

That’s correct.

William J. Brennan, Jr.:

And that will be when?

Wayne W. Whalen:

The next primary election will be in March of 1976.

Warren E. Burger:

I thought you said, until another election and until that election had been acknowledged and approve by the National Party Convention.

Wayne W. Whalen:

If I didn’t say that I certainly meant to imply that Mr. Chief Justice.

Warren E. Burger:

In the meantime the people elected are merely delegate designates —

Wayne W. Whalen:

By the state of Illinois.

Warren E. Burger:

And they remain in that posture until their credentials are accepted by the convention?

Wayne W. Whalen:

On the other hand, the petitioners are the certified delegates to the convention and have the credentials which have been granted by the National Party.

William H. Rehnquist:

Mr. Whalen, we’ve certainly taken jurisdiction of some cases where there’s been an appeal from an injunction without any contempt citation where the party has yet to disobey the injunction.

And we’ve taken jurisdiction of cases where a party has disobeyed an injunction and had a contempt citation or contempt penalty imposed on it.

But I know the trouble about the posture of your case.

You have had an injunction issued against your client.

Your clients have disobeyed the injunction, so the injunction didn’t frustrate anything they wanted to do and there’s a possibility of contempt proceedings against them.

But as I understand it, no actual contempt penalties have been imposed on them.

Wayne W. Whalen:

There are two injunctions involved, Your Honor.

One injunction is the August 2nd order which currently restrains petitioners from acting as delegates in selecting National Committee Men and Committee Women, that’s the August 2nd order.

William H. Rehnquist:

Now, what practical effect does that injunction have in your clients at this time?

Wayne W. Whalen:

It is preventing the clients from holding a meeting, selecting a National Committee Man and Committee Women — woman from Chicago –from Illinois and presenting them to the Democratic National Committee.

William H. Rehnquist:

What — does that come every two years?

Wayne W. Whalen:

That comes up under National Party rules as a duty and responsibility of the certified delegates from each state.

William H. Rehnquist:

Would the National Committee Man or Committee Woman and doesn’t have any particular term?

Wayne W. Whalen:

It’s a four-year term.

William H. Rehnquist:

Well, when was the — when were they elected last in Illinois?

Wayne W. Whalen:

Respondents participated in an election because petitioners were enjoined on August 5, 1972.

So, the term of National Committee Man and Committee Woman from Illinois will run from the National Convention in 1972 until the end of the National Convention in 1976.

William H. Rehnquist:

And by that time there’ll be new delegates by anybody’s rule?

Wayne W. Whalen:

That’s correct.

William J. Brennan, Jr.:

I get it then at the National Committee Men suppose is filled now —

Wayne W. Whalen:

It is Your Honor.

William J. Brennan, Jr.:

And Committee Woman?

Wayne W. Whalen:

It is — it is filled —

William J. Brennan, Jr.:

And then did the — did the National Committee accept those —

Wayne W. Whalen:

It accepted —

William J. Brennan, Jr.:

Those elections by respondents?

Wayne W. Whalen:

It accepted them subject to challenge.

We — the petitioners were unable to challenge because there enjoined by the Cook County Court.

William J. Brennan, Jr.:

Let’s assume that you win this case, what will happen with respect to the National Committee Man and Woman?

Wayne W. Whalen:

The petitioners will hold a meeting which they were enjoined from holding by the August 2nd Order.

They will select nominees for National Committee Men and Committee Women and present them to the Democratic National Committee.

I might say that the July 8th Order of 1972 is in our judgment that still has some force and that the trial judge in Cook County has deferred any action on the contempt proceedings until such a time as this Court has had an opportunity to rule.

Petitioners respectfully submit that all the proceedings in the Cook County Court after the July 5, 1972 judgment of the Court of Appeals for the District of Columbia were barred by clear and unambiguous principles of res judicata.

The Court of Appeals for the District of Columbia expressly held: first, that all the parties in the federal form were the same as all the parties in the state form; secondly, the Court of Appeals for the District of Columbia expressly approved the resolution of the Credentials Committee seating petitioners and unseating respondents and granting petitioners National Convention delegates.

William J. Brennan, Jr.:

Mr. Whalen, may I just interrupt you.

Wayne W. Whalen:

Yes.

William J. Brennan, Jr.:

If I may get back to you about a matter of the Committee Men and Committee Women.

You say they were elected by the 59 respondents, when?

Wayne W. Whalen:

On July 5, 1972.

William J. Brennan, Jr.:

And that what was before the National Convention was?

Wayne W. Whalen:

And that was after the —

William J. Brennan, Jr.:

Well, that was —

Wayne W. Whalen:

It was August 5, 1972?

William J. Brennan, Jr.:

But after the National Convention.

Wayne W. Whalen:

After the National Convention.

And that was — the National Party —

William J. Brennan, Jr.:

Are they now seated by the National Committee or in office?

Wayne W. Whalen:

They are seated subject to challenge.

William J. Brennan, Jr.:

Subject to challenge before whom?

Wayne W. Whalen:

The Democratic National Committee.

William J. Brennan, Jr.:

Well, has the National Committee permitted them to participate in National Committee?

Wayne W. Whalen:

Yes, they have.

William J. Brennan, Jr.:

Subject to challenge?

Wayne W. Whalen:

Yes.

William J. Brennan, Jr.:

And what is the Committee going to rule on the challenge?

Wayne W. Whalen:

The committee can’t rule on the challenge because the petitioners are currently enjoined from bringing it.

William J. Brennan, Jr.:

I see.

Warren E. Burger:

The state court.

William J. Brennan, Jr.:

I thought this case was moot.

Maybe, I hope so?

Wayne W. Whalen:

I might say, Your Honor that it’s a continuing reoccurring question which is inevitably will arise at the last minute just as this case.

Potter Stewart:

With Democrats, its sure will.

Wayne W. Whalen:

I said before that the Court of Appeals for the District of Columbia expressly held that all the parties were the same.

It also expressly approved the resolution granting respon — granting petitioners’ credentials and denying respondents’ credentials.

It further held that respondents state court claim was to be rejected and if it were to be considered that there would be an impairment of the First Amendment rights of association.

This Court expressly refused to grant respondents’ petition for writ of certiorari and under unambiguous law, a stayed but unreversed judgment is res judicata in an absolute bar to subsequent proceedings.

For this reason, we respectfully request that the judgments below should be dismissed.

For over a 100 —

William H. Rehnquist:

It was a subsequent vacation of by the Court of Appeals of its judgment?

Wayne W. Whalen:

The Court of Appeals did not vacate its judgment, Justice Rehnquist.

On October 10, 1972, this Court vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals for a determination of whether the case was moot.

So, at the time that both orders were entered by the Cook County Court, July 8th and August 2nd, the judgment of the Court of Appeals was outstanding but stayed.

William H. Rehnquist:

Would you concede that after the vacation of the judgment in the Court of Appeals by this Court that that judgment was no longer in effect?

That judgment was no longer in effect at that time.

But then on February 16th, the Court of Appeals acted again on remand from this Court and at that time, the Court said that the convention had acted within its competence in seating petitioners and refusing credentials to respondents, and further it affirmed Judge Hart.

Under the Munsingwear decision, the affirmance is important because it is a — that that decision holds that eventhough the case was found to be moot that Keane v. National Democratic Party continued to have a res judicata bar.

For over 150 years, the National Parties have met in quadrennial conventions to select their nominees and citizens from the states have brought credentials challenges to assert principles ranging from party loyalty, racial discrimination, basic principles, silver or gold, are often times just to established a true National Republican Party or a true National Democratic Party.

And credential’s challenges are the proven and historic means for citizens in exercise of this First Amendment activity to uphold party principles and to assert of the rights of the National Party.

Warren E. Burger:

Are there any cases in the state courts other than the two that you’ve mentioned in this period in which the power of the National Convention to seek their own delegates’ passed on credentials have been questioned?

Wayne W. Whalen:

The two reported cases where the McQueen case and the Houser case which are in our brief —

Warren E. Burger:

Any, any beside those —

Wayne W. Whalen:

You —

Warren E. Burger:

Beside those two.

Wayne W. Whalen:

Mr. Chief Justice, you’re aware of a lower court decision in the State of Georgia which purported to pass on the credentials of the — which was lawfully elected delegation from Georgia.

Warren E. Burger:

Did that go to the Supreme Court of Georgia or was that in the intermediate and lower court?

Wayne W. Whalen:

That was in the intermediate and lower courts.

That same year, there was a decision by the trial court in Mississippi, on a Mississippi challenge to the republican nation — in the Republican National Committee.

In 1972, in the Riddell case, there’s a decision in which the Federal District Court in Mississippi held that the loyal democrats not selected in accordance with state law could be seated at the National Convention and the regular democrats elected in accordance with state law were properly excluded.

The interests of a state are in large part at odds or could be at odds with the interest of the National Democratic Party.

This is certainly been true in the area of party loyalty.

It’s been true in the area of racial discrimination.

Potter Stewart:

Mr. Whalen, what is the — what’s the federal question here?

What’s the question of federal law?

Wayne W. Whalen:

Your Honor, the complaint by its terms does not raise a federal question and indeed that was established by Judge Will in the Seventh Circuit on respondent’s motion to remand.

The federal question from the point of view of petitioners is at least three-fold.

First of all, our basic rights of association had been violated by the injunction —

Potter Stewart:

By the State of Illinois.

Wayne W. Whalen:

By the State of Illinois.

Secondly, we think that the Privileges and Immunities Clause guarantees us as citizens of the United States the right to participate in a national process.

So, we believe that our rights under the Fourteenth Amendment had been breached by the injunction.

And thirdly, we think that this process is inherently national in nature and if any state could abridge the rights to participate in a National Convention.

The National Party would lose its effectiveness.

Potter Stewart:

Well, that the same as your first point and your first and second.

Wayne W. Whalen:

I think that’s right.

Potter Stewart:

I mean the National Chamber of Commerce is national in nature and the state presumably can interfere with the right of those people to associate.

Wayne W. Whalen:

That’s right.

What we had in mind there were the interest which this Court has expressed in cases such as Shapiro against Thompson, Nelson against Pennsylvania where the City of Burbank where there’s a national interest at stake.

And therefore, a —

Potter Stewart:

Not a federal governmental interest that is there, is there?

Their private associational interest, is it not?

Wayne W. Whalen:

It is a private associational interest but to the —

Potter Stewart:

Of course the Court of Appeals, I know it held it was governmental.

Wayne W. Whalen:

But if there’s to be any regulation, it certainly has to be federal, it couldn’t be stayed.

William H. Rehnquist:

Do you feel you have a fundamental right to travel to the National Convention?

Wayne W. Whalen:

We certainly do but I don’t think that’s what it — what’s at stake here because the injunction order did not prohibit us from traveling by its terms.

It simply prohibited the petitioners from presenting themselves as delegates.

Potter Stewart:

Your basic claim is that the State of Illinois through this injunction has interfered with your First and Fourteenth Amendment right of association.

Wayne W. Whalen:

That is correct, Your Honor.

Thurgood Marshall:

Outside of the State of Illinois?

Wayne W. Whalen:

Yes.

If the law were any different on the 11th hour of every convention, state courts of general jurisdiction would be issuing injunction orders in accordance with state law which would affect the outcome of the National Conventions as Judge Will pointed in his decision, this is obviously intolerable result.

Byron R. White:

What if the — what you’re suggesting also I suppose that conventions have no business or political parties do have the business of saying how delegates to their convention could be elected if they’re going to be given credentials?

Wayne W. Whalen:

Yes.

And as a matter —

Byron R. White:

You could say, I suppose according to you that the party could say delegates must be chosen in the convention process rather than by election?

Wayne W. Whalen:

That is correct.

Byron R. White:

And the state has no — would have no business insisting that delegates be elected rather than chosen on convention?

Wayne W. Whalen:

That is correct.

William O. Douglas:

Well, as a matter fact I gather you go so far as to say the states have absolutely no role to play.

It’s a national — if the convention sets up —

Wayne W. Whalen:

I, I–

William O. Douglas:

The procedures and methods by which these delegates will be elected?

Wayne W. Whalen:

I don’t think — I don’t think we need to reach that decision here.

The National Conventions as a practical matter and indeed in most cases differ to the state’s process —

William O. Douglas:

Well, that’s alright.

If you say that’s the business of the National Convention to differ or not?

Wayne W. Whalen:

It might not be if a constitutional questions were presented which are not involved in this case or if there were federal regulation which is not involved —

Byron R. White:

On the other hand the convention has no business interfering with the state’s constitutional prerogatives with respect to the selection of electors?

Wayne W. Whalen:

That is correct, other than —

Byron R. White:

They’re not involved here, are they?

Wayne W. Whalen:

Electors are not involved and other than, to the extent —

Byron R. White:

And the state needed I suppose except the parties — the results of the parties work at the National Convention?

Wayne W. Whalen:

And as you know Your Honor that has repeatedly happened.

Byron R. White:

Yes.

Wayne W. Whalen:

In — to support the injunction in this case, the respondents had argued that there’s a compelling state interest.

While they don’t argue that there are any constitutional rights at stake, they say that the state has an interest in protecting its election process and to achieve this protection, they would have that injunction be issued.

But the effect of that injunction is one of two things.

First, it would force the National Party to seat respondents.

That’s what the Illinois appellate court said.

Individuals who the National Party has expressly found violated their most fundamental principles and with whom the National Party did not want to associate.

Or the second thing would be that there would be no persons from Illinois as seated at the National Convention.

It’s not conceivable what state interest is protected by having no citizens from the State of Illinois and that was certainly the interest which persuaded the Court of Appeals for the District of Columbia and the Riddell Court.

Also, that argument ignores the strong national interest of the party to associate so it can rally its members for its nominee to win the November election.

The argument ignores that.

For these reasons, we would respectfully request that the judgments below be reversed.

Warren E. Burger:

The only impact of decision here, am I correct, as to the immediate situation would be the identity of the members of the National Committee from state.

Is that not the only remaining question?

I’m not talking about what’s going to happen in 1976, but presently the only impact to what we would decide.

Wayne W. Whalen:

There’s that — there’s also the problem that if persons wanting to participate in a National Convention can have injunctions issued against them and if the judgments are subsequently reversed but those individuals have to stand for contempt, that’s certainly will chill in the future any First Amendment rights or incentive to bring this kind of —

Warren E. Burger:

I was excluding the consequences just the present ones.Decision of this Court now would decide who which body is going to elect the National Committee members from the State of Illinois.

Wayne W. Whalen:

It will decide that.

The tri — the Cook County judge has also deferred any further action pending review of this case.

Potter Stewart:

He will also decide whether or not your clients are going to jail?

Wayne W. Whalen:

That’s correct.

Warren E. Burger:

It’s also a future.

Thank you, Mr. Whalen.

Mr. Torshen.

Jerome H. Torshen:

Mr. Chief Justice and may it please the Court.

Jerome H. Torshen:

The issue in this case is whether the state’s interest is insufficient to enable it to enforce voting and associational rights of its citizens through injunction proceedings against certain of its citizens from assuming party officers to which they were not elected, and from representing a particular electorate which did not choose them.

The facts underlying this issue have been largely, totally ignored by petitioners and have not been properly heard in any Court until they were heard in the Circuit Court of Cook County.

Those underlying facts which give rise to the injunction and which were not heard are the Illinois election law.

The nature of the election itself, the voter and associational rights of Illinois citizens to choose their representatives, and to associate with each other in political parties, and the findings that were made concerning the nature of the petitioner’s slate of delegates itself and the manner in which they were chosen by the State.

With regard to all these things, we are here on a record which is largely uncontested and in which the findings of fact which came after two evidentiary hearings which all persons who participated were not objected to.

I would like to dispose, if I may, of the res judicata argument because that has taken up a large part of the petitioner’s brief and in the context of these cases, it creates a cloud which has to be dispelled.

If anything, res judicata requires an identity of issues in opportunity to litigate those issues.

The issues before the District of Columbia Courts, both the District Court and the Circuit Court, were the constitutionality of certain guidelines of the Democratic Party.

These included two guidelines concerning the imposition of quotas and two guidelines which dealt with slate-making in the endorsement of candidates.

When this came before the District Court, Judge Hart specifically refused to hear any questions concerning the legality of the slate’s chosen in Illinois but concern himself only with the questions of constitutionality of the guidelines holding three constitutional and one unconstitutional and he refused to issue an injunction sought by the Democratic National Committee against state court proceedings.

It should be noted that the original litigants in that case were the duly elected delegates in Illinois through a representative — the demo — and the Democratic National Committee.

When the case went before the Court of Appeals for the District of Columbia unreviewed, the Court sustained Judge Hart’s finding with regard to the one particular guideline which he held unconstitutional.

The Court stated specifically in part two of its opinion which dealt with the Illinois challenge to the guidelines that the issue before the court below was the constitutionality of the guidelines.

The Court then went on in part three which dealt with the Illinois counterclaim and said, “Because the convention is heard upon us, the issue must be decided, not heard but decided.”

And thereupon issue its injunction against the proceedings in the Illinois Court.

The Court made clear in its opinion that Judge Hart stated that the legality of the slate — of petitioners here was not for him but nevertheless issued its injunction which was subsequently stayed by this Court.

So that when the case went that to Illinois with all parties present by counsel for evidentiary hearing, there had been no finding concerning the legality of petitioner’s slate, and this was the only and precise question presented to the Illinois Court.

So, in these circumstances where there were no identity of issues, no opportunity to litigate, no pleadings or proof, and no finding concerning legality of that slate.

It seems difficult to us to concede or assume that there was some res judicata or collateral estoppel effect leftover after the injunction had been stayed by this Court at the time this Court criticized the District of Columbia — the Court of Appeals decision.

Potter Stewart:

The point is I guess that the federal litigation culminating in this Court’s stay was not concerned with the legality under Illinois law of your slate and on the other side of the coin, that this case is not concerned with the constitutional legitimacy of the Democratic Party’s guidelines.

Jerome H. Torshen:

That’s correct Your Honor.

They’re not at issue in the slate —

Potter Stewart:

Into the —

Jerome H. Torshen:

In this case and in fact at the outset of the hearing before District Judge Hart.

And I should say there were two hearings.

The first hearing was held about 10 days prior to that which gave rise to the case which reach your Court.

Judge Hart’s ruling was held to be premature at that time.

Judge Hart specifically instructed the litigants that he would not hear any questions concerning the Illinois election law or the legality of these slates but would concern himself solely with the constitutionality of the guidelines.

William J. Brennan, Jr.:

Was it open to respondents to raise the question of the legality of the petitioner’s slate before Judge Hart in that proceeding?

Jerome H. Torshen:

No one raised it.

William J. Brennan, Jr.:

Was it — No, that wasn’t my question.

Jerome H. Torshen:

No, no, sir.

William J. Brennan, Jr.:

Was it open to you to raise it?

Jerome H. Torshen:

No sir, Your Honor.

It was not open.

William J. Brennan, Jr.:

Why not?

Jerome H. Torshen:

Judge Hart specifically precluded that question.

William J. Brennan, Jr.:

Did you attempt to open it, to raise it?

Jerome H. Torshen:

Well, when we came in Your Honor.

We alleged the bona fides of the respondent group.

In other words, the duly elected delegate and we —

William J. Brennan, Jr.:

Does that imply the lack of bona fides of the petitioner’s brief?

Jerome H. Torshen:

No.

No, sir and we were even precluded from putting in evidence concerning the nature of the election in the manner which we were chosen.

So, we were held in the District Court to very narrow issues and these were the issues went up to the Court of Appeals and then were suddenly expanded upon in part three of the opinion of that Court which issued the injunction.

I should state the injunction, the complaint for injunction was, again, not based upon the bona fides of either of the slates but only upon the rights of association of the —

Potter Stewart:

Alright.

Jerome H. Torshen:

National Party.

Potter Stewart:

Now in the present case, at least as I understand it, it’s virtually conceded that your clients were the delegates chosen in accordance with Illinois law.

Jerome H. Torshen:

Not only —

Potter Stewart:

I don’t think there’s a — as I understand it, there’s no dispute about that.

Jerome H. Torshen:

There’s —

Potter Stewart:

The question is — the basic question in this case is whether the injunction of the Illinois state court violated the petitioners’ constitutional rights of free association —

Jerome H. Torshen:

Correct.

Potter Stewart:

Is that about it?

Jerome H. Torshen:

Yes, sir.

Potter Stewart:

And that was an issue that was not really of — was not the issue in the previous federal litigation.

Jerome H. Torshen:

That’s correct.

Potter Stewart:

That’s your point.

Jerome H. Torshen:

It was not an issue nor with defense which might give rise to a decision before the Court.

Jerome H. Torshen:

In that regard, Your Honor, it should be noted that the Illinois Court found that the Illinois elections was free, equal, open, and non-discriminatory.

That challenge was never — that finding was never challenged.

Secondly, with regard to the particular election with which we’re concerned, it should be noted that prior to the fight over the guidelines, there was certainly a great deal of federal intervention into the Illinois procedures.

For example, the delegates were chosen from single member from districts, congressional districts.

These districts had been recently reapportioned by a plan approved by the United States District Court in the Northern District of Illinois which enjoins state agencies from acting in any way to put forth their own plan.

So, the districts from which the delegates where chosen, the congressional districts, were established by the federal Court, one man one vote and no invidious discrimination.

Secondly, the persons who could choose the representatives for Democratic Party were also determine by the federal courts in Kusper versus Pontikes which voided the Illinois anti-rating statute which provided then that anyone could vote in a democratic primary.

This Court Kusper versus Pontikes subsequently affirm that finding and said, that the citizens of Illinois had to have the right to associate with other members of the party to choose their representatives.

Thirdly, the federal courts three years earlier, Court of Appeals for the Seventh Circuit in Weisberg versus Powell determined the method in which persons were to be place on the ballot in situations such as this.

It was to be by luck or half draw if you will base upon the day that your application was received by the Secretary of State.

So, here we have a situation in which many aspects of this particular election including the district, the electorate from which the choice was to be made and ballot position was determined by the federal Court, and it now appears to be petitioners position here that having done all these, the vote should not be counted.

Especially, after they concede that the election was free, open and non-discriminatory.

We think, Your Honor, that there can be no such result as they are but that the votes were entitled to be counted and that the election was not a charade.

The Illinois rules were very clear, anyone could run.

There were minimal requirements.

Anyone could vote and in fact they did vote.

There were challenged procedures at all phases of the election process and yet not one of the 180 candidates for the 62 delegate positions were challenged by anyone throughout the election process.

In it’s this particular election, this popular election, held under these safeguards that petitioners here say must be totally ignored.

We don’t think that that’s the result that can be reached.

And what was the state interest here that they were protecting?

We have to look to that, Your Honor, again to the hearings that were held in the state court because it’s the only place that such hearings were held and this concerns the manner in which the respond — the petitioners, I’m sorry.

The petitioners were chosen to represent the Illinois democratic election.

They were chosen in private caucuses.

The rules provided that only the losers in the general election could vote.

Secondly, strict quotas and race, sex, and age were applied.

Third, as stated in the appendix by one of the District Coordinators, one of the counsels for petitioners, the rights of the individual voters were to be ignored.

And lastly again is in the record, developed on cross examination from the co-leader of petitioners’ slate.

The voters who voted for those persons who won were disenfranchised because their candidates were tainted as were candidates themselves.

So, all of these people were excluded from the election process and yet, sought to represent the democratic electorate of Illinois and in it’s against this group that the state issued its injunction.

Now, when I talked about quotas, the evidence is very clear on that.

Jerome H. Torshen:

For example, the first congressional district of Illinois which encompasses the Hyde Park area is in large measure black, part white and at the caucus meeting held in private home, it was stated, all of the delegate selected could — must be black based upon the population or there could be at the very most one white.

Now, anyone who lives in Hyde Park in Chicago shops at the Hyde Park Co-Op, it’s a large supermarket.

And if you walked down the aisle there pass the produce sections, it’s quite obvious that there are a large number of Orientals who live in Hyde Park, persons of oriental descent and one of them asked at the caucus, “May I be elected?”

The answer was, “No, you can’t be elected.

You’re neither black nor white.”

In the Eight District where only four persons came to attend, it took two votes to determine who the delegates would be because the quotas weren’t met.

So, these were people and this was the selection process that was to be foisted upon the people of Illinois in connection with the convention.

Now, —

Thurgood Marshall:

Foisted upon the people of Illinois or upon the Democratic Convention?

Jerome H. Torshen:

It was upon the nine, I believe its nine congressional districts involved, Your Honor.

Thurgood Marshall:

But the question is as to whether they shall be seated not as to whether they shall be or how they should be elected in Illinois?

Jerome H. Torshen:

I think your —

Thurgood Marshall:

Well, may I finish.

Jerome H. Torshen:

I’m sorry Your Honor.

Thurgood Marshall:

Or whether they shall be seated at the Democratic Convention.

Now, if understand, am I correct, that the State of Illinois can elect a representative to Congress and Congress can refuse to sit them?

Jerome H. Torshen:

No, sir

Thurgood Marshall:

Am I right?

Jerome H. Torshen:

They cannot refuse to sit them.

Thurgood Marshall:

Oh, they can’t.

Jerome H. Torshen:

I believe that was Powell versus McCormack.

Thurgood Marshall:

Powell no, that was no seating.

Warren E. Burger:

Have there not been a number of occasions in history when Congress refused to seat a member elected by a particular district in a particular state?

Jerome H. Torshen:

My recollection, Your Honor —

Warren E. Burger:

And it does not in more such cases.

For example, one that was recently referred to in one of our opinions, the man elected was a General and he was refused to seat because he wouldn’t resign his commission and another case, he was the United States Attorney.

And he was refused to seat because he would not give up his position as United States Attorney.

Jerome H. Torshen:

He may have been refused his seat, Your Honor but I don’t think people were chosen in his place by Congress.

But the submission went back to the process established by the states for the election.

So, that I don’t think Congress reached out to choose a delegate.

Thurgood Marshall:

I didn’t say that.

Jerome H. Torshen:

I’m sorry.

Thurgood Marshall:

I’ve said that there were instance where the —

Jerome H. Torshen:

Yes, sir.

Thurgood Marshall:

The State had exercise its rights at all, is it?

Jerome H. Torshen:

Correct.

Thurgood Marshall:

And in this case the State exercised its rights and I thought convention was asserting its rights.

Jerome H. Torshen:

Correct Your Honor and I don’t —

Thurgood Marshall:

And if that’s what happened.

Jerome H. Torshen:

Yes, sir.

Thurgood Marshall:

That a convention refuse to sit him.

Jerome H. Torshen:

Correct!

And we’re not arguing that issue before this Court.

I think the issue here Your Honor, is whether the Illinois state court had the power to enjoin certain person from acting as delegates from specific Illinois congressional districts.

Thurgood Marshall:

Even if the democratic convention recognizes this as such.

Jerome H. Torshen:

Yes, sir.

Potter Stewart:

Your point is?

Thurgood Marshall:

With the long arm statute really is it?

Jerome H. Torshen:

Well, it maybe a long arm statute, Your Honor, but to say anything else of course, would be to negate the idea of popular elections of delegates nor do I think, Your Honor that is consistent with any great interest of the convention.

And I think Your Honor that that brings us to this problem of the associational rights that have been raised here.

Potter Stewart:

Your point, I gather with the respect to the reported congressional analogy is that it is not an analogy that’s your not complaining at all here of the convention’s refusal to sit the Illinois — your clients.

Jerome H. Torshen:

Correct.

Potter Stewart:

At all, that’s not an issue here at all?

Jerome H. Torshen:

No, sir.

That is not before the Court.

We think whether Illinois has an interest in its own election laws which govern the selection of party officials to prevent its citizens from usurping those laws and acting for representatives of Illinois citizens who did not elect them.

With regard to that, if I might Your Honor, the right of association here is not the right of a few individuals to associate at the convention with the Democratic National Convention.

I think the associational rights here, as this Court pointed out in Pontikes versus Kusper, are the rights of the voters to associate with other members of the party in selecting their representatives.

And secondly, to associate with other members in an election process that here is concededly free, equal, open and non-discriminatory to select those representatives.

And third, if we must, the right of the state parties themselves to associate through their duly elected representatives with the representatives of other state parties in the convention, so that they can choose the nominees for one of our major parties.

William H. Rehnquist:

What about the question that Mr. Justice White put to Mr. Whalen, Mr. Torshen?

What if the Democratic National Party decides, we don’t want popular elected delegates to our convention.

We want one just chosen by state conventions, is it free to go ahead on that basis even though Illinois law says that delegates to National Convention shall be chosen in an election?

Jerome H. Torshen:

I think they could say that Your Honor.

But I think it would have a serious — that would cause serious change in the nature of the convention process itself and I think what it would do Your Honor, —

William J. Brennan, Jr.:

But then, what about the answer to this question?

Is it —

Jerome H. Torshen:

They could say that.

They could —

William J. Brennan, Jr.:

And make it stick?

Jerome H. Torshen:

Well, they could —

William J. Brennan, Jr.:

They wouldn’t seat the delegate?

Jerome H. Torshen:

Sure.

Byron R. White:

But your point is I guess that they can’t seat anybody else either?

Jerome H. Torshen:

I suppose —

Byron R. White:

Is that, is that your point?

Jerome H. Torshen:

Yes, sir.

Byron R. White:

So that if you concede divided the convention that they must concede the state’s right?

Jerome H. Torshen:

We concede the right of the convention.

I suppose the state would not have to recognized the nominee of the convention —

William H. Rehnquist:

That would be its remedy.

Jerome H. Torshen:

Right.

William H. Rehnquist:

So you don’t get a spot on that —

Jerome H. Torshen:

Right.

But I also think Your Honor, that if that question were to arise, and it isn’t before the Court, we would some other questions to consider.

First the nature of state action, whether the convention itself is state action and whether its exclusion in its method of selection of delegates who will choose the nominee of one of our great party for President is a proper method.

In other words, the convention isn’t a voluntary association.

We don’t have to reach the question here of state action but it certainly is a great quasi-public body performing a very, very important function.

And for all practical purposes, the only way in which —

Byron R. White:

Together if that it is — we sustain your view here what or if your view would have been followed in 1972, Illinois would not have had delegates at the convention.

Jerome H. Torshen:

That’s conceivable Your Honor.

Well, I think conceivable —

Byron R. White:

Sure.

You say that the convention had no business seating anybody else?

Jerome H. Torshen:

Right.

That’s correct.

Illinois might not have had delegates and we would submit Your Honor that that result would be preferable to the result which did occur, in which the party sought to construct itself from the top-up rather than the bottom-down by picking out the people who would represent the Illinois electorate.

Byron R. White:

So you say the state has a — the party hasn’t got the right to say who is going to represent the —

Jerome H. Torshen:

Correct.

Byron R. White:

They can reject your delegates but they can’t do anything else.

Jerome H. Torshen:

Correct.

I think Your Honor —

Thurgood Marshall:

So that if you have a convention under the proposed party rules in the state you’d have the injunction and stop them from going to the National Convention?

Jerome H. Torshen:

If the state selection system has not been referred to a state party as it has been in some states and if the state selection system is it was in Illinois, a popular election which is free and open to all.

And I think Your Honor, the —

Thurgood Marshall:

My question is, they have a state convention with the State of Illinois says is not lawful under the state law and they elect delegates to the National Convention in the Pudong, outside the State Illinois.

The State of Illinois could enjoin them from going to the convention.

Jerome H. Torshen:

Yes, sir.

Thurgood Marshall:

How under what rule or law do you get that?

Jerome H. Torshen:

Not enjoin them from going there, not enjoin them from participating, not enjoining them from serving on convention committees by enjoining them from representing the electorate as delegates, Your Honor.

Thurgood Marshall:

Well, what does that mean?

Jerome H. Torshen:

Well —

Thurgood Marshall:

They go to the convention.

They vote in a convention.

But if they say, they vote as a delegate of Illinois, they violate the injunction.

If they say I voted Joe Jones, I don’t violate it?

Jerome H. Torshen:

In the Mississippi challenges earlier Your Honor, what the convention did was create positions of delegate at large for certain of the members of the Mississippi delegation and I suppose here, if the convention really wanted this particular group, they could have created offices for them.

Thurgood Marshall:

But is it right as the State of Illinois has to control the internal affairs of a National Party Convention held outside of the State of Illinois?

Jerome H. Torshen:

The State of Illinois, we would submit Your Honor, has a right to protect its own election laws and its own electorate which participated in an election held under the offices of the State of Illinois.

And it could protect that by issuing injunctions which would prevent Illinois citizens within the jurisdiction of its Court from subverting those laws.

Warren E. Burger:

Well, these men could go down to the convention?

Jerome H. Torshen:

Yes, sir.

Oh, sure.

Warren E. Burger:

And vote and do everything they wanted to but when they get back to Illinois, they might have a little problem with being in contempt to Court —

Jerome H. Torshen:

That’s correct.

They would have the problem of facing up to the consequences in Illinois and in this particular instance Your Honors, so that the contempt — the status of the contempt proceeding is known, petitions for rule of the show cause have been issued.

The trial judge has held the case pending the resolution on appeal of the various issues raised, so that that case, although not formally stayed by order is in fact stayed really awaiting the decision of the ultimate reviewing Court, in this instance, this particular Court.

Warren E. Burger:

If this hypothetical situation that we were just talking about that is these delegates go to the convention in violation of the state court injunctions, take their seats, perform all their functions, come back or cited for and found him in contempt, would the traditional remedies of federal habeas corpus be open to them?

Jerome H. Torshen:

I haven’t considered that question Your Honor.

But I would assume first —

Warren E. Burger:

I suppose, they would at the time, wouldn’t they?

Jerome H. Torshen:

The — I would think Your Honor that not only with habeas corpus be available but of course there would be an appeal route from the contempt conviction itself, if there were such a conviction and a penalty imposed.

The normal appeal procedures would be in effect through the Illinois courts and I suppose ultimately on certiorari by this Court, if the Court shows to take or if it went that far.

So, certainly the trial judge will not be the ultimate — will make — will not make the ultimate disposition in this case.

But the trial judge in this case was concerned because the issue was raised in the Illinois appellate court that he had no jurisdiction to act it all and it’s come up to this case.

Your Honor, we think that in this particular matter, the delegates were elected by the people of the state in a proper and fair election.

There is no fraud alleged in this election.

There were no challenges.

They had bonafide credentials to represent the democratic electorates.

We do not think that the petitioners had such credentials and we think in the circumstances of this case, the Illinois Court was entitled to protect not only those people who voted in the Illinois primary but those who took office and also to protect the Illinois election structure itself.

Now, I should conclude Your Honors by stating in the appendix at page 106, there’s a transcript of what happened at one of the caucuses held by the petitioners wherein their delegates where their slate were elected and in answer to complaints raised by the assembled citizenry, they said, “Raise this question in the state courts.”

And this is precisely what was done Your Honor, and we think it would be reversing the trend of history to say that the state courts did not held a sufficient interest to enable it to protect its own election laws in its electorate.

Warren E. Burger:

Did you say 106 of appendix or the transcript?

Jerome H. Torshen:

Of the appendix, Your Honor.

Potter Stewart:

This was also raised in the credentials committee —

Jerome H. Torshen:

Right.

Potter Stewart:

— is the same.

Jerome H. Torshen:

That’s correct.

Warren E. Burger:

Thank you.

Do you have anything further, Mr. Whalen?

Warren E. Burger:

You have one minute left.

Wayne W. Whalen:

Thank you, Mr. Chief Justice.

I wanted to address the question of whether the exclusivity of Illinois law was raised in Keane against National Democratic Party.

It was raised indeed at all three levels.

In their complaint before Judge Hart, respondents asked that the Court declare a judge in decree that the plaintiff and delegates, respondents —

Lewis F. Powell, Jr.:

What page is that, Mr. Whalen?

Wayne W. Whalen:

Its on page 9 of our brief.

Had been duly elected in accordance with the provisions of the Illinois election mode — code and that therefore they’ll be entitled to take their seats as delegates.

Potter Stewart:

You told us early I thought of no point laboring this thing very long that the Judge Hart precluded consideration of that issue.

Wayne W. Whalen:

Yes, he did but then it came up again in the Court of Appeals.

Potter Stewart:

And the Court of Appeals said no question of Illinois laws there involved in other words?

Wayne W. Whalen:

No.

Your Honor, Court of Appeals said that the challenge delegates claim if the National Party could not abridge their rights under Illinois law to have the delegate seats for which they’ve been elected.

The relationship in this case between the Illinois law and the party regulations offers no ground for relief.

And on page 5 of our reply brief, we quote the Court of Appeals which states, “The resolution of the committee which we have here approved, provides that the 59 plaintiffs in this suit are not to be seated as the delegates to the National Convention from which — from their districts in Illinois.”

It also provides that 59 other person shall be seated as the delegates from those districts.

And in their motion for this — a stay in this Court following July 5th, the same arguments were raised and the Illinois election law pleaded.

Potter Stewart:

Because as I understand it, it’s not even an argument.

It’s been conceded or at least virtually conceded all the way through, all of this litigation that your adversary’s clients are the delegates who were elected in accord with Illinois law.

Wayne W. Whalen:

That’s correct.

Potter Stewart:

Is that correct?

Wayne W. Whalen:

Yes, it is.

Potter Stewart:

There’s no argument.

Wayne W. Whalen:

There’s no argument on that point.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.

We’ll hear argument —