Marchioro v. Chaney

PETITIONER:Marchioro
RESPONDENT:Chaney
LOCATION:Adult Store

DOCKET NO.: 78-647
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Washington Supreme Court

CITATION: 442 US 191 (1979)
ARGUED: Mar 26, 1979
DECIDED: Jun 04, 1979

ADVOCATES:
Charles A. Goldmark – for appellants
Daniel P. Brink – for appellees

Facts of the case

Question

Audio Transcription for Oral Argument – March 26, 1979 in Marchioro v. Chaney

Warren E. Burger:

We’ll hear arguments first this morning in Number 647, Marchioro against Chaney.

Mr. Goldmark, you may proceed whenever you’re ready.

Charles A. Goldmark:

Mr. Chief Justice, and may it please the Court.

A Washington statute Revised Code of Washington 29.42.020 regulates the State Committee of Washington’s major political parties.

One requirement of this statute is that these State Committees be composed of two persons from each county in the state no more, no less and none other.

The issue presented here is whether this requirement that the State Committees be composed of two persons per county no more, no less and none other can be constitutionally applied to bar the Democratic party of Washington from establishing its State Committee composed of two persons from each county, plus one person from each legislative district in the state.

William H. Rehnquist:

Mr. Goldmark, as I understand it in the Supreme Court of Washington you also challenged the requirement that the composition of the committees be one man and one woman.

You don’t renew that here?

Charles A. Goldmark:

Mr. Justice Rehnquist, that is correct we do not challenge that requirement here.

Harry A. Blackmun:

And the last amendments didn’t change that sex provision.

Charles A. Goldmark:

Mr. Justice Blackmun, in my knowledge they did not.

Appellants challenge here only the two-person per county requirement and the court below ruled that this provision was severable from the remainder of the statute.

Appellants are eight members and officers of the Washington Democratic Party.

Four of them were persons elected as legislative district representatives to the Democratic State Committee and denied their seats on the basis of the challenge statute.

Appellees are the Democratic State Committee and its chairman at the time this suit was instituted.

The State of Washington was served, as required by state law, with a copy of the complaint when this litigation began and notified of the appeal for the Washington Supreme Court.

It has not appeared at any stage in this proceeding.

The Democratic State Committee is the governing body of the Washington Democratic Party.

In 1970, the Washington Supreme Court in the case of King County Republican Central Committee versus Republican State Committee interpreted the authority of State Committees regulated by RCW 29.42.020.

The court ruled there that these Party State Committees have the inherent power to govern the statewide operations of parties as political organizations subject —

William H. Rehnquist:

Between conventions.

Charles A. Goldmark:

Between, subject only to the overriding authority of the party state convention.

That is correct Mr. Justice Rehnquist they only govern between conventions.

Potter Stewart:

And they are defined and provided for by legislation enacted by the legislature of your state, are they?

Charles A. Goldmark:

Mr. Justice Stewart, that is correct.

Potter Stewart:

And how long has that been true?

Charles A. Goldmark:

I’m not aware, Your Honor.

The statute authorizes that Party State Committees to call conventions and to plan them.

It specifically precludes them from setting rules to govern the operations of the convention.

Potter Stewart:

They are creatures of statute, aren’t they, the State Committee?

Potter Stewart:

I tell you I’m asking these questions, this is for me a puzzling case and I’m sure you’re going to be helpful in straightening me out.

But if a State Committee is a creature of statute and if it’s — performed some sort of statutory function in the State of Washington it’s one thing.

If it’s a private organization it’s another.

In other words, I suppose the Federal Trade Commission to take the national government, which is a creature of statute couldn’t all of a sudden have a meeting and say “We’re going to expand our membership to 15.”

And then have an argument with the Government of the United States saying that their rights of association had been impaired because the statute provided for a lesser number.

On the other hand, I suppose that it’s equally clear that a garden club could have a legitimate constitutional claim if the legislatures, federal or state said purported to begin to direct what its membership should be.

And this — these committees are creatures of statute, aren’t they?

Charles A. Goldmark:

Mr. Justice Stewart it is not freely —

Potter Stewart:

They’re not voluntary self —

Charles A. Goldmark:

Let us begin.

Potter Stewart:

— selecting organizations.

Charles A. Goldmark:

Democratic Party has been characterized in the King County Republican Central Committee case as a voluntary political association.

That association has the right to establish a governing body.

Whether the statute that regulates what that governing body does actually creates it, regulates it or as I believe the Court also said in that case, gives it statutory body in being may only be matters of terminology because it seems clear that this is a voluntary association and this regulation regulates the way in which it can do certain functions.

Potter Stewart:

Well it creates it almost doesn’t it, it — the statute?

Charles A. Goldmark:

The 1970 decision —

Potter Stewart:

It says what a State Committee is and what it shall be composed and then it gets its certain statutory duties in that —

Charles A. Goldmark:

The statement of the Washington —

Potter Stewart:

— in that respect is not unlike any governmental agency.

Charles A. Goldmark:

The statement of the Washington Supreme Court interpreting this statute was that the Party State Committee had inherent power, not statutory power, but inherent power to govern the statewide operations of a party as a political organization.

And that is a quote from the court’s decision.

Potter Stewart:

And how many other states are the — are political parties created and defined by state statute?

Charles A. Goldmark:

Mr. Justice Stewart, it is not clear to me whether they are created by the statute.

Potter Stewart:

Or defined by state statute.

Charles A. Goldmark:

To appellant’s knowledge, they are regulated in approximately 32 states.

Twenty of those merely reference the existence of a State Committee and leave the composition to the party’s choice.

Four of them establish a minimum number but allow the remainder to be added by the party.

Fourteen, mandate that the party State Committee shall be composed on the basis of one person one vote.

Twelve, like Washington, set an absolute figure.

William H. Rehnquist:

Well, aren’t almost all of them provide for elections of county delegates or representatives and then provided that the county delegates shall elect the State Committee?

Charles A. Goldmark:

Mr. Justice Rehnquist, not to my knowledge.

In a number of instances, congressional district organizations for example, are entitled to elect the representatives to the State Committee, or legislative district organizations.

Not all are county based, but most have a constituency of some kind like a county.

Thurgood Marshall:

Mr. Goldmark —

Harry A. Blackmun:

The state’s Attorney General is noticeably absent from this litigation.

Has he ever been in it at all trying to defend the statute?

Charles A. Goldmark:

Mr. Justice Blackmun, he has not.

Appellants served the Attorney General with a copy of their complaint when the suit began, and notified him of the appeal to the Washington Supreme Court.

He is not here at any state —

Thurgood Marshall:

And also the amended complaint.

Charles A. Goldmark:

That is correct Mr. Justice Marshall.

Harry A. Blackmun:

Just one more question, I didn’t hear your last sentence.

His what?

Charles A. Goldmark:

He was also served with a copy of our — of the appellant’s amended complaint and of the — and the notice of the appeal from the trial court to the Washington Supreme Court.

Harry A. Blackmun:

But he — then he has never appeared?

Charles A. Goldmark:

He has never appeared.

Harry A. Blackmun:

Then in the litigation at any stage?

Charles A. Goldmark:

That is correct.

Thurgood Marshall:

That wasn’t what I wanted to ask.

Aside from that, is there any other marker that we can find that shows the interest that the state has in this statute?

Charles A. Goldmark:

Appellants are not aware of any Mr. Justice Marshall.

I would like to —

William J. Brennan, Jr.:

Did you serve him and submit to some state requirement that he must be served of a state statute’s constitutionality?

Charles A. Goldmark:

Mr. Justice Brennan, yes I did.

The Washington declaratory judgment statute requires the Attorney General to be served in any suit challenging the constitutionality of the state statute.

William J. Brennan, Jr.:

But leaves it to him whether or not he shall defend it?

Charles A. Goldmark:

That is correct, Your Honor.

I would like to add in further response to the question from Mr. Justice Stewart that even if the statute is the sole power that gives this committee being, it is clear that the functions, the statute requires that committee to perform are protected by freedom of association.

The statute authorizes and requires that committee to call and plan state party conventions.

That is an activity protected by freedom of association.

Potter Stewart:

Well, that’s almost — that’s the question in this case.

Charles A. Goldmark:

The statute requires the Democratic State Committee to provide for election of delegates to the Democratic national — to a national party convention.

As this Court knows from the case of Cousins versus Wigoda, the power within a party to provide for the election of delegates to national convention is considered to be extraordinarily political and a vital matter within that party.

Potter Stewart:

Now this statute which is quoted in your brief refers to the State Committee of each major political party.

I suppose elsewhere in the legislation, major political party is defined one way or the other isn’t it?

Charles A. Goldmark:

That is correct Mr. Justice Stewart.

A major political party is one that received 5% or more of the total vote cast in any proceeding statewide election.

Potter Stewart:

In general too in your state?

Charles A. Goldmark:

That’s correct.

Potter Stewart:

That by definition.

Charles A. Goldmark:

The major benefit of being a major political party is that you are allowed to participate in the state’s primary system.

Minor political parties must hold state conventions in order to place their candidates in the general election ballot.

Warren E. Burger:

How are these parties structured before the statute was passed?

Charles A. Goldmark:

The record does not show, Mr. Chief Justice, I —

Warren E. Burger:

Does that the matter of which we could take judicial notice if we knew about it?

Charles A. Goldmark:

Mr. Chief Justice —

Warren E. Burger:

Tell me, was it a purely voluntary organization like that Parent-Teachers Association or a Garden Club as Justice Stewart suggested?

Just a voluntary —

Charles A. Goldmark:

That would be my assumption.

This statute, the State of Washington has had statutes regulating the composition of Party State Committees since 1907.

If the Democratic Party in Washington is like other political parties in American history, it was a voluntary political association up until the end of about the 1890’s when as the Court will recall, there were abuses enough in primary election systems and other areas to cause states to gradually bring political parties within their regulatory power.

Potter Stewart:

But it’s almost a definition first of all, isn’t it?

Charles A. Goldmark:

Mr. Justice Stewart —

Potter Stewart:

It states to me “of each major political party shall consist of”.

And there’s nothing in there that says that some other Democratic political voluntary organization isn’t entirely free to form itself and have whatever rules it wants to.

But the legislature has defined what a State Committee of each major political party is.

Charles A. Goldmark:

Mr. Justice Stewart, perhaps I could explain further the ruling the Court in this case with respect to the charter enacted by the Democratic Party, which may further shed light on your concern.

That charter was adopted by the Democratic State Convention in 1976.

The charter is contained in the party’s joint appendix, to establish the Democratic Party’s permanent statewide organization.

Article 4 (g) of that charter states that the Democratic State Committee shall be the governing party — body of the party while the convention is in adjournment.

Charles A. Goldmark:

In the decision below, the Washington Supreme Court held that the Democratic State Convention as the supreme party authority is implicitly empowered.

It did not say empowered by statute, but implicitly empowered to establish the party’s permanent statewide political organization, and to delegate authority within that organization.

William H. Rehnquist:

Is it that the Democratic State Party?

That was what you just said.

Charles A. Goldmark:

The Democratic State Convention, meaning the 1976 adopted the charter.

Excuse me, Mr. Justice Rehnquist the Washington Supreme Court could’ve held that the Washington Democratic State Convention was implicitly empowered to establish the party’s permanent statewide organization, and to delegate authority within that organization.

William H. Rehnquist:

And that is a relatively voluntary organization, I take it?

Charles A. Goldmark:

That is correct, Your Honor.

William H. Rehnquist:

What’s an example supposing that the Democratic State Central Committee were on the outs with the Democratic State Party as represented by the state convention?

What sort of serious burdens could the Democratic State Committee put on the Democratic State Convention or party?

Charles A. Goldmark:

For example Your Honor, if the Democratic State Convention adopted a party platform which the State Committee then refused to implement that would be a very substantial burden on the party’s freedom of association.

William H. Rehnquist:

Well how would a Democratic State Committee, composed such as this one is by a statute play a role in implanting the platform of the state party?

Charles A. Goldmark:

Because that is its inherent function.

It is as you’ll notice clause 5 of this statute authorizes the State Committee to perform all inherent functions of such organization.

And in the court in the decision below, the court held that the Democratic Party State Convention is implicitly empowered to establish its permanent statewide party organization and delegate authority within it, and that was the Statutory State Committee.

The court below held that the Democratic Party charter is binding authority on the Democratic State Committee absent valid state law to the contrary.

William H. Rehnquist:

But nothing that the State Central Committee to do would prevent the members of the Democratic State Party, or the people who adhere to the platform without the convention from espousing their views as to how good a platform it was.

Charles A. Goldmark:

A political party is an organization established to influence policy and to win elections.

The only permanent statewide organization that members of the Democratic Party have, the only organization to carry this out between conventions is the Democratic State Committee.

If this committee does not implement the party platforms, raise money as the record shows it does, raises money for Democratic candidates and distributes money to those candidates.

If the committee does not perform these functions as the convention desires, that would be a very substantial burden —

William H. Rehnquist:

Well can’t the party itself raise money quite apart from the activities of the State Central Committee?

Charles A. Goldmark:

The State Central Committee is under the common law of the state under this statute, and under the party’s charter its governing body.

If the Democratic Party attempted to establish some other organization, appellants have no doubt that it would be denounced as an illegal body.

William H. Rehnquist:

Are you saying that the Supreme Court of Washington would tell you if the Democratic Party had a fund raising event in Seattle or Spokane and Tacoma that wasn’t sanctioned by the State Central Committee that you couldn’t have that event?

Charles A. Goldmark:

No, Mr. Justice Rehnquist, I’m not suggesting that.

I’m suggesting that this is the party’s permanent statewide organization.

It has the authority.

When the Democratic State Committee speaks on an issue, it speaks with the authority of the Democratic Party.

It elects the party’s chairman or elects that state chairman.

Charles A. Goldmark:

When he speaks, he speaks with the authority of the Democratic Party.

For the convention to establish some other body would not only be contrary to state law, it would be extraordinarily divisive with the party.

This is the group that leads this party.

Party members have no other organization to look to for this function.

The record is clear that this State Committee raises and distributes money to party candidates, passes resolutions and performs all the normal functions of the governing body of a political party.

Four of appellants were elected as members to serve and participate in its decisions and have been denied from doing so on the basis of this statutory requirement.

And there is no evidence anywhere in the record of any compelling state interest of the State of Washington that justifies the implicitness of such a burden.

Potter Stewart:

Well isn’t it that the legislature has defined what the State Committee is and what it shall consist of.

Now, it’s not at all unusual for a legislature, state or federal, to set up advisory committees.

There’s a committee a generation — almost a generation ago set up by the federal government.

I don’t know if it was by legislation or resolution or what antitrust study group of which my brother Stevens was a member.

And I’m sure whatever it was whether it was legislation or a resolution or an executive order whatever it was, set up put the membership of that should be.

And now could that organization passed a meeting and said “We want to double our membership and have a member from every state.”

Once the government, legislative or executive had set it up and defined it?

Charles A. Goldmark:

I do not believe that that organization had its genesis in a voluntary private association.

Potter Stewart:

There’s no indication that this one did either.

What we have before us is a legislative act defining what a State Committee is.

Charles A. Goldmark:

Your Honor, appellants believe as the Washington Supreme Court has said, and with the Court’s indulgence, I’ll read its statement that appears on page 5 of appellee’s brief in which the Washington Supreme Court stated the powers of the state committees, and stated their role in under this statute.

Representative of a permanent state party organization, those subordinate to the overriding power of the Party State Convention.

So the two were linked and the state convention has power over this body.

Potter Stewart:

Is the state convention, I interrupt just for a moment, to say is that defined by statute anywhere?

Charles A. Goldmark:

It is not Mr. Justice Stewart.

Potter Stewart:

No.

Charles A. Goldmark:

Is a State Committee created by RCW 29.42.020, as a committee designed to function on a statewide level, it is necessarily invested with the inherent power to adopt rules and regulations for its own internal government, as well as to promulgate subject to the overriding authority of the state convention.

Intraparty rules governing statewide operations of the party as a political organization during the interval between conventions.

For this reason, appellants submit that state law regulates the activities of the Democratic State Committee.

It does not so create them as to strip them of any First Amendment protection.

John Paul Stevens:

Doesn’t everything you read say it’s all subject to what the convention dictates?

Charles A. Goldmark:

Yes, Mr. Justice Stevens.

John Paul Stevens:

Can’t the convention widely it wants to?

Charles A. Goldmark:

Yes, Mr. Justice Stevens and it has.

John Paul Stevens:

Well that’s — what?

Charles A. Goldmark:

And the convention has.

The convention in its charter —

John Paul Stevens:

We’ll take the platform example you gave in Mr. Justice Rehnquist’s we’re talking.

Say the central committee says it shall be A, and the convention says it shall be B.I

t’ll be B won’t it?

Charles A. Goldmark:

That is, Mr. Justice Stevens that is what the suit is about.

The convention said that State Committee shall be two persons per county.

John Paul Stevens:

Oh no, forgetting the membership.

You’re talking about if we’re getting who — on any issue except who shall comprise the membership of State Central Committee, wouldn’t the convention’s views prevail?

Charles A. Goldmark:

No, Mr. Justice Stevens.

John Paul Stevens:

And what example would they not prevail?

Charles A. Goldmark:

To give you an example of something that occurred during the pendency of this case.

And I refer to a matter outside the record, something contained in the minutes of the Democratic State Committee meeting, and I believe the Court may take judicial notice of this under the case of Texas Railway v. Pottorff 291 U.S., simply for the fact that the State Committee took such an action.

The Democratic State Party platform for a number of years has espoused, repealed state sales taxes on food and drugs.

At a meeting prior to a general election to vote on an initiative which would’ve accomplished this repeal, the State Committee adopted a resolution opposing it.

Now what remedy does the state convention have to bring the State Committee into line?

John Paul Stevens:

It doesn’t have to.

It just says the policy of the party shall be to favor it instead of opposing it.

And that controls under the statute.

Charles A. Goldmark:

If the state convention meets every two years, it has no power during the interim, except through the party’s representatives on the State Committee to see that its mandates are carried out.

Litigation, if the party cannot control the composition of its State Committee, so if the State Committee is responsive to the party it has no means except litigation, which courts properly are reluctant to bring.

Potter Stewart:

Well it’s certainly — the situation is now that what a State Committee is, is defined by statute.

Now your remedy is to go to the legislature of the State of Washington and they have to have them either to repeal that statute or amend it.

But the whole definition of what is a State Committee is contained in the statute of your state.

Thurgood Marshall:

But he says he can come here and give us then.

Potter Stewart:

That is right.

Charles A. Goldmark:

The common law of the State of Washington gives the Democratic Party the authority to assign functions to its Sate Committee, the same State Committee regulated by the statute and to delegate authority to it.

Potter Stewart:

It does not just regulate it, it’s created.

Potter Stewart:

It’s defined by the statute, and so far as one can see, created by the statute.

Charles A. Goldmark:

Mr. Justice Stewart, I must respectfully disagree in terms of terminology, given the decisions of the Washington Supreme Court in the King County Republican case and in the decision of the court below.

It seems odd that the Democratic State Convention can ask its State Committee to do anything, as the court below ruled, except to establish the composition of the Party State Committee.

John Paul Stevens:

Mr. Goldmark —

William H. Rehnquist:

What if the Democratic State Convention, Mr. Goldmark, had said that the Democratic State Central Committee shall not be subject to any elections at all, but simply be appointed by the Democratic State Convention every two years.

And this Washington state legislature passed the statute saying “No, you’re going to have some elections.”

Would you feel you had stronger case?

In other words, the Democratic State Party was asserting its authority over the central committee by saying that instead of having its — the central committee having its members elected, they were going to be appointed by the state convention.

Charles A. Goldmark:

It seems to me if the convention, since it’s a large body, was going to appoint these people, it would have to elect them.

William H. Rehnquist:

Well, but supposing that — supposing it said then that the chairman of the convention would appoint them?

Charles A. Goldmark:

It’s not clear to me whether that would be proper.

I do know in California for example, virtually every member of a part State Committee is appointed by the party officers.

For example, the governor appoints two members, the secretary of state appoints two members. This seems to be a common practice in a number of states.

Byron R. White:

What if the convention decided would be — initial committee should be composed of two members from each candidate, but the legislator then said “Oh no, the central committee should be selected on a population basis.”

Charles A. Goldmark:

Mr. Justice White, I thought about that question and it is not clear to me whether the state would have a compelling state interest enforcing a State Committee to be a portion on the basis of one person one vote.

In this case, the two-person per county requirement of this statute has already been superseded by a federal court injunction requiring the State Committee to vote on the basis of one person one vote whenever it exercises those electoral functions.

The federal court ruling that the Fourteenth Amendment required it to do so when it performed these electoral activities.

Byron R. White:

What is the status of that litigation?

Charles A. Goldmark:

That was a stipulated injunction between the Democratic State Committee and the parties in that case, that the State Committee only exercises its electoral functions on very rare occasions.

Thurgood Marshall:

Well it seems like most party political troubles that via the most states that they settle within the convention politically in Washington they settle them in courts.

Charles A. Goldmark:

There is no way for the party to settle this in the court Mr. Justice Marshall, because it can’t control its own State Committee.

What the convention decides can only be settled by litigation because it has a State Committee whose composition it can not control.

That is the substantial burden on freedom of association.

Thurgood Marshall:

So that’s the difference from other states where you’d vote it down and not politically?

Charles A. Goldmark:

Yes, Mr. Justice Marshall.

Thurgood Marshall:

So we’ll be supervising the parties eventually.

Charles A. Goldmark:

Mr. Justice Marshall, it is appellants belief that if parties are free to decide how their governing bodies are composed, and exert power over them through the political process —

Thurgood Marshall:

Then you go to the legislature and change the Act.

Charles A. Goldmark:

The fact that a legislature can remove a burden on freedom of association and provide that remedy does not excuse the substantial burden that is creating or justify them in prosecution as —

Thurgood Marshall:

But wasn’t that Act passed by political parties?

Thurgood Marshall:

Or they have nonpartisan elections in —

Charles A. Goldmark:

The state legislature is controlled by political parties.

It is a fact of political life that often legislatures and politicians in office are not exactly excited about having strong or responsive party organizations, and prefer to see one that’s built around individuals.

John Paul Stevens:

Mr. Goldmark —

Byron R. White:

Oh, could the statute say this?“

The Party Central Committee shall be composed on the following ten people.”

And then list an accountant, a lawyer, an engineer and just list ten people.

It doesn’t say they have to be from anywhere, it just says “That’s going to be the governing body of the party.”

Would that be unconstitutional too?

Charles A. Goldmark:

Mr. Justice White, only if the party decided that if wish the governing body of some different composition.

Byron R. White:

Well it does.

It does.

It decides that it wants that it wants —

Charles A. Goldmark:

Two persons per county.

Byron R. White:

— it wants two lawyers and two — I suppose right down the list of them, two of everybody.

Charles A. Goldmark:

The party’s preference should control.

Byron R. White:

Well why is that?

Charles A. Goldmark:

Because it is a voluntary political association that has a right to decide for it self how a governing body shall be composed.

The composition of the party’s governing body can be as important to the success to that party as the choices it makes in its platform.

Byron R. White:

Well do you think — do you think the state can impose the duty on the party if the party doesn’t want to perform?

Charles A. Goldmark:

I don’t know Mr. Justice White.

Byron R. White:

Well, do you suppose it can prevent the party from doing something that the party wants to do?

Charles A. Goldmark:

If the party wishes to take a position on a particular issue, it certainly can do that.

If it wishes to conduct a voter educator program on a particular issue, I do not — really the state could prevent it from doing that absence some compelling state of which —

Byron R. White:

Well is there some law of Washington or under the Constitution that would — if you don’t like the rules about the Democratic Party or the Republican party in Washington, there’s no reason you can’t form another one.

Form another party and run it the way you want to.

Charles A. Goldmark:

This is not a realistic alternative for members of the Democratic Party because they’re permitted to its ideas.

Byron R. White:

I know because you — I know because you wanted to take advantage of the provision for getting candidates on the ballot.

Charles A. Goldmark:

We are not, Mr. Justice White, taking advantages of provisions for getting candidates on the ballot.

The functions performed by this committee exclusive of those activities are themselves calling and planning state conventions, electing delegates to national conventions are all protected by freedom of association under this Court’s prior decisions.

John Paul Stevens:

Mr. Goldmark, I want to ask you one question before you sit down.

If I understand your position correctly, if you just reverse the positions in this case and said you wanted the just two recommend per county or two representatives per county, and the others on the state statute required the legislative representation.

You’d say that was the statute would be equally unconstitutional?

Charles A. Goldmark:

Yes, Mr. Justice Stevens.

John Paul Stevens:

And is it your position then that no matter what the requirement of the statute is, it would be subject to this attack under the First Amendment?

Charles A. Goldmark:

No, Mr. Justice Stevens.

As I indicated in the question to Mr. Justice White, the state may have a compelling state interest in requiring political party state committees to be a portion on the basis of one person one vote.

Otherwise, I can conceive of no other compelling —

John Paul Stevens:

One party member per — I mean, one voting party member or one voter — I mean what —

Charles A. Goldmark:

So that the constituency is a State Committee members are composed of approximate equal members of party members or the electorate.

John Paul Stevens:

That would be a compelling state interest for having every county represented would not be a compelling state interest?

Charles A. Goldmark:

Yes, Mr. Justice Stevens, I said it might.

Warren E. Burger:

Mr. Brink.

Daniel P. Brink:

Mr. Chief Justice, and may it please this Court.

I think to understand the question, we do have to go back into the background of the system, the political structure of the State of Washington and the governmental structure.

It’s been of — we’re still fairly young state, but of some 70 years duration has there been this structure of 39 counties with 39 separate governments each having their own elected representatives, excuse me, legislative executive in judicial branches.

They elect their own county judges, the county commissioners and executives, prosecuting attorneys, county clerks and so on down the line.

The state has authorized by a section just one following this, and in the same basic enabling Act in 1907, the existence of county committees which are composed of precinct committee men elected in each county.

These organizations of course parallel the county governments.

Then the county committee of each county selects two members to the State Committee.

It originally was just one in 1907, and 1927 as I recall, they added the rights of one man or/and one woman from each county.

Potter Stewart:

Now, when you say “they” is that the state legislature?

Daniel P. Brink:

The state legislature, yes Your Honor.

The powers of the county committee are not restricted by statute.

And when it is stated here that there can be no other organization speaking for the Democratic party, that is simply not true.

Each county speaks for itself and sometimes most vociferously and they’re not always in concert.

However, the state charter attempted to put the counties in line a little bit and did say that they do have a limitation upon them, and that is that they should attempt at least to follow the policy set forth in the national charter, the state — excuse me, the national platform, the state platform and the county platform.

The State Committee as I said was — is elected by the — composed of these people from the county committees, two from each, and just provides a skeleton of the state party and as an administrative, not an electoral and not a policy making body.

The policy making is reserved to the state convention.

The charter itself requires the State Committee to follow the policies set forth by the state convention and by the state charter.

Daniel P. Brink:

It’s important to understand that the functions of the State Committee are relatively limited.

We — I’d like to talk to you about what it does and what it does not do. It does not do a lot of the things represented by counsel.

By statute, it comes into being every —

William J. Brennan, Jr.:

May I ask this?

Are its powers limited to the five specified in the statute?

Daniel P. Brink:

Its powers, by statute, are limited to those.

However it has been assigned additional functions by the state convention.

And in further answer to that Your Honor, the state convention can of course assign additional committees to do additional things.

The state convention is all powerful in the view of the Washington State Supreme Court in any event.

Warren E. Burger:

What do you think, Mr. Brink, is the federal issue involved in this case?

Daniel P. Brink:

I do not believe there to be a federal issue because I do not believe there to be a — an infringement at all upon anybody’s rights to associate.

The State Committee does not nominate candidates.

It does not even endorse candidates.

It does not participate in the election process, it simply the administrative function to try to glue these 39 counties together to provide communication one to the other.

It is our position as appellees that there is no issue under the First Amendment.

Warren E. Burger:

But you make your case — do you make your case, I’ll put it that way, if you demonstrate to us that there is no federal issue involved in the case?

That it’s a matter for the state legislature and people of Washington?

Daniel P. Brink:

Mr. Chief Justice that is of course our position.

Warren E. Burger:

Well now, why not focus sharply on that?

Daniel P. Brink:

I will attempt to.

The state legislature has been requested in the past on several occasions in the last 10 years to change this composition make up of the State Committee.

This legislature which is made up by one man one vote basis has declined to do so.

In fact, it hasn’t even considered the — been strongly enough to pass from one house to the other.

I don’t know how I can answer you question further if you —

Byron R. White:

Well is there anything in the Washington law that would prevent the convention from forming a committee whatever you wanted it do to perform all the functions that the convention wanted it to perform except the ones that the statute says the central committee has to perform?

Daniel P. Brink:

I agree, Your Honor.

I think that is correct that they can do so that they could form a committee for fund raising.

They could form a —

Byron R. White:

And so that in so far as — so that you think the issue really is here whether or not it’s constitutional for the state to say that the committee that — that the central committee that is to perform these five functions have to be two from each county?

That’s the — you think that’s the issue?

Daniel P. Brink:

If the legislature said it should be two from each county and —

Byron R. White:

For it to perform these particular functions.

Daniel P. Brink:

Yes, just these limited functions.

That does not impinge upon anybody’s rights of association or expression.

Byron R. White:

I understand you say that’s really the only issue that’s here.

Daniel P. Brink:

That is to us the only issue that is here.

Byron R. White:

Because the party could provide for — under the statute that the party could have all the other functions that the State Committee might be given to perform.

It could be assigned to another committee.

Daniel P. Brink:

It can and in fact they have set up a judicial committee by the charter.

They did not set up the separate finance committee that has —

William J. Brennan, Jr.:

Well Mr. Brink, this category five perform all functions inherent in such an organization.

How broad is that?

Daniel P. Brink:

That is not very broad in view of the King County Republican case in which the Washington State Supreme Court said that subject to the overriding power of the state convention.

So I suspect the legislature went and said inherent just saying “Well, do whatever you can.”

William J. Brennan, Jr.:

Even the exercise of 1, 2, 3 and 4 under the case you mentioned, the subject to the overriding authority of the convention?

Daniel P. Brink:

Absolutely, that is the holding of the Washington State Supreme Court back at 1971 in King County Republican case.

I — this Court has not so far, as we can tell, gone so far —

Byron R. White:

So your — you say that under this — under the Washington law, the — while there must be a central committee with two members from each county, the convention could remove — could say if the committee has no functions?

Daniel P. Brink:

They could theoretically do that in our view.

Byron R. White:

And will set up another committee to do all the things they want them to do, and will have this committee composed any way they wanted to?

Daniel P. Brink:

Right, but they must allow the State Central Committee as set up by statute to exist to attempt to coordinate at least the election procedures of the 39 different counties and their own county committees.

And it does provide an element of stability between conventions.

It is there.

It is official.

The Secretary of State knows he can call up the State Chairman or the — of either party and plan ahead for conventions.

This is the most important function, seems to me, of the State Committee.

And that is to initiate the election procedures by calling conventions, setting dates, heading the precinct committee men and their various precincts.

They set the dates for precinct caucuses, for county caucuses and then for the state convention.

But as also limited by statute, they can’t tell the state convention what to do in its own convention.

The case that this Court has cited to of Kasper versus Pontikes and Cousins versus Wigoda are just so far and away from what we’re involved in here.

Daniel P. Brink:

Those were — Cousins versus Wigoda involved a national political party convention and as to which delegation from the State of Illinois should be seated, the one that was elected under the state law or the one that was selected in accordance with rules of the national convention.

And the state did attempt to interfere and this Court said it was an interference.

But that was a national convention case.

The Court was very concerned and well it should be, it’s of importance to all parties, all citizens that this convention be held without interference from 50 states.

It’s also, in the case of Kasper versus Pontikes, that was a nomination case and a state little again from the State of Illinois, and where an Illinois statute prevented appellee from voting in the Democratic primary because she had within 23 months previous, voted in a Republican primary.

Now the Washington State Committee does not affect at all primary elections.

It does not permit, prevent, deprived anyone from participating in primary or general elections.

The Ripon Society case is simply not in point again.

A national convention case in which the Republican — and an also was a Fourteenth Amendment case.

There’s no Fourteenth Amendment issue here nor is there one raised here.

The — assuming that there would be any kind of a burden upon the appellants, there is a state interest in maintaining the stability and integrity and continuity of the major political parties in the state.

To become a major political party in Washington State by getting 10% of the vote at the last general election, and then if the new party, new major party is still in being it can qualify for the primary ballot without a separate convention.

As a matter of fact, the only — I think the only time we had a party that achieved this was the Progressive Party back in 1948, and then of course by the year 1950, nobody was interested to pick up the fact that they were a major party.

So they — we have a lot of minor parties that come and go and a lot of them on the ballot.

Potter Stewart:

What party was that in 1948?

Daniel P. Brink:

Progressive Party, Your Honor.

Potter Stewart:

Progressive.

Daniel P. Brink:

They got enough vote to qualify for the next time.

Potter Stewart:

I see.

Daniel P. Brink:

Didn’t follow through.

The State Committee is not the policy maker, but it is important that it retain communications and maintain communications between these county organizations who are all out speaking for their selves — themselves as well.

It has the same constituency as those county committees.

We suggest the statute is narrowly drawn and serves a state interest to maintain this continuity of the major parties.

It is our suggestion that the Court affirm the Washington State Supreme Court.

Thank you.

Warren E. Burger:

Thank you Mr. Brink.

Do you have anything further Mr. Goldmark?

You have about three minutes remaining.

Charles A. Goldmark:

This case cannot be distinguished from Cousins versus Wigoda.

There, this Court held that a party’s choice and the composition of its higher governing body was a choice protected by freedom of association.

Charles A. Goldmark:

The matter there was regulated by state law, yet the Court hold — held that the State of Illinois could not interfere with the delegates chosen by the party to attend the Democratic National Convention, or more importantly a state caucus held to elect members to the Democratic National Committee.

And this Court said that that membership in that state caucus was protected by freedom of association because the representatives elected to the Democratic National Committee would be involved in planning the next Democratic National Convention.

William H. Rehnquist:

Didn’t the Illinois court there enjoin those representatives from presenting themselves as delegates to the national convention?

Charles A. Goldmark:

Yes, Mr. Justice Rehnquist and that is the effect of this statute.

It has prevented four of appellants from presenting themselves to the State Committee in participating in its deliberations.

William H. Rehnquist:

So you must have to say that the State Central Committee created by a statue in Washington is of the same political and associational significance as the Democratic or Republican National Convention sitting every four years to choose a presidential candidate?

Charles A. Goldmark:

It is of the same significance for freedom of association.

The fact that a national party convention was involved in Cousins, means that states may have different interests in regulating.

A state may not have an interest in regulating a national party convention or its membership, whereas it may in regulating participation in state party matters, but both are protected.

The difference in the compelling interest does not relate that to strip away the First Amendment protection of the association of party members.

And Cousins did hold that stating or state interference in a state party caucus to choose representatives to the Democratic National Committee was protected.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.