The Green Papers Commentary
 

THEATRE OF THE POLITICALLY ABSURD
The Relationship between State Law and Party Rules
and the "Punishing" of the former where violative of the latter
(PART TWO)

Wednesday, March 19, 2008

by Richard E. Berg-Andersson
TheGreenPapers.com Staff

Having already considered- in PART ONE under the title of this series of Commentaries- the way the Classic and Allwright cases altered the views of the Federal Judiciary (as had earlier been expressed in Grovey) as regarded the relationship of Party nominations to office to the Right to Vote in both Federal and State elections (a Right- in both cases- that, as I've said, primarily derives from one's State citizenship [though it can, up to a point, be the subject of Federal regulation, as I've already explained), it is now time to discuss how these same views might well come to affect the manner in which political Parties nominate candidates for what is, after all, the Federal Presidency and Vice-Presidency (especially in light of all the controversy surrounding the complete erasure of Florida's and Michigan's Democratic National Convention delegations by the Democratic National Convention [pending some kind of "do over" in these States before the delegate selection event "window" closes- per Democratic Party rules- on 10 June of this year (though, as I type this, Florida's Democrats have recently rejected just such a "do over" and the possibility of a Michigan "do over" seemingly now hangs by a mere thread]).

To, first, see how all this might well play out in the courts, we should closely examine the most recent important judicial case involving a dispute over which delegates should be seated at a Major Party's National Convention and that happened to be one which came out of the contest for the 1972 Democratic presidential nomination. This examination will be the sole subject of this PART TWO and I will then wrap this whole series up, relating all I have so far written in both PART ONE and PART TWO to the very similar situation faced in 2008, with a final PART THREE in the days to come:

California held its Presidential Primaries on Tuesday 6 June of that year (the original "Super Tuesday", by the way: 415 Democratic delegates were being distributed as a result [whether direct or indirect] of the Presidential Primaries being held that day-- as this was nearly 14% of the total number of delegate votes at the Party's upcoming Convention [3,016] and, therefore, more than a quarter of the number of delegates needed to win the nomination, the media [perhaps inspired by the growing popularity of a then-still relatively new sporting event, though one ever increasing in popularity, called the Super Bowl] dubbed the day "Super Tuesday"). On the Democratic side, California (with 271 delegates [65% of all those up for grabs on "Super Tuesday '72"]) was a Winner Take All Primary- that is, whoever won the Primary would win all the delegates to the Democratic National Convention from the Golden State.

The problem was that, a year earlier, the Democratic Party had implemented reforms which intended, among many other things, to eventually do away with such Winner Take All contests. These reforms came to be known as the "McGovern-Fraser reforms" because they were proposed by a commission authorized by the Party hierarchy (in response to an amendment to the Rules Committee report presented to the Party's 1968 National Convention in Chicago) chaired, first, by Senator George McGovern of South Dakota and, later, by Congressman Donald Fraser of Minnesota. McGovern had given up his chairmanship of this reform commission when he announced, in January 1971, that he would be seeking the Democratic presidential nomination; it would be McGovern who would, nearly a year and a half later, win the California Democratic Winner-Take-All Presidential Primary and, with it (as things eventually turned out, after no little wrangling- to be described below), the Democratic presidential nomination at the Party's 1972 National Convention in Miami Beach, Florida.

California was allowed to keep its Winner Take All Presidential Primary as part of the Democratic presidential nomination process in 1972 in part because, by the time the McGovern-Fraser reforms were formally approved by the Party (by making them an official part of the Call for the Party's 1972 National Convention) in February 1971, it would have been rather difficult (mostly because of State constitutional requirements related to the structuring of the sessions of the State's legislature) for a few States (including California) to so quickly adopt the technical changes in their Election Codes necessary to bring these States' Democratic delegate selection procedures into full compliance with the reforms by the time the Primary/Caucus "season" got underway the following Spring (back in 'them there' days, New Hampshire's 'first-in-the-Nation' Presidential Primary was still held in March [though the Granite State had moved it (for the first- but, obviously, not the last [;-)] time)- in this case, up a week from its original date of the State's "Town Meeting Day" (the second Tuesday in March) because Florida had moved its Presidential Primary from late May to what had, up till then, been New Hampshire's traditional date (hmmm... Florida and New Hampshire disputing over Presidential Primary dates-- sounds vaguely familiar! [;-)])]). Although there had been at least one serious legislative attempt to change the method of pledging delegates based on the results of California's Presidential Primary, it had failed of passage and, thus, the Golden State was, come 1972, stuck with a Winner Take All Primary for both Major Parties, despite the new Democratic Party rules.

The Democratic National Committee, in the end, had to settle for "substantial compliance" with the McGovern-Fraser rules in at least a handful of States (including California) with "full compliance" required for all States by 1976 (except, interestingly, for Illinois [home of then-Chicago Mayor Richard J. Daley] and West Virginia [home of U.S. Senator Robert C. Byrd], which were each permitted to continue using an Advisory "beauty contest" Presidential Preference Primary with the pledged delegates actually chosen in a separate Delegate Selection section of the same ballot [Daley and Byrd being rather important "top dogs" within the Democratic Party hierarchy of the era]: someone noticed that it was possible for a presidential contender- regardless of how he might do in the Presidential Preference voting- to win all the delegates from either State by having all his delegates elected by the voters in this second part of the Presidential Primary ballot and, therefore, dubbed these "Loophole" Primaries [since they would provide a "loophole" that might still turn said Primaries into Winner-Take-All contests, despite the new Democratic Party reforms]). The DNC, in fact, specifically informed California- ahead of time- that its 1972 Winner-Take-All Presidential Primary on the Democratic side was, indeed, permissible (though, of course, it would not be come 1976).

Come "Super Tuesday '72", then- again, on 6 June that year- George McGovern emerged as the victor in California with 43.5% of the vote; Senator Hubert Humphrey of Minnesota, the former Vice President who had become the Party's standard-bearer in that most tumultuous Convention in Chicago four years before and was, by the end of the '72 Primary/Caucus "season", the only presidential contender who still could, conceivably, keep McGovern from winning the nomination on the First Ballot of the Convention Roll Call of the States (the thought was that, unless McGovern won outright on the First Ballot, the Party would begin looking for a more "electable" presidential nominee beginning with a Second Ballot) received 38.6 % to finish a disappointing second (no other presidential contender received more than 7.5% in that Primary [and that 7.5% was made up of "write-in" votes for Alabama Governor George Wallace, at the time still recovering from an assassination attempt the month before; no contender other than McGovern and Humphrey actually on the California ballot received more than 4.4%]). Under the rules of the State's Winner-Take-All Primary, then, McGovern was entitled to the pledges of all 271 of California's delegates to the 1972 Democratic National Convention.

Humphrey immediately protested, arguing that- under the reforms proposed by the commission McGovern himself had once chaired- the South Dakotan should only receive the pledges of 120 delegates (the number to which he would have been entitled to had the delegates been pledged proportionally [by the way, there was not yet the requisite threshold of 15% of the vote that has since become so well established within the Democrats' presidential nominating process]), thus- so Humphrey argued- 151 of California's 271 delegates should be taken away from McGovern and redistributed among the other presidential contenders (Humphrey, obviously, was merely trying to keep McGovern from reaching the "magic number" of 1,509 delegate votes [a majority of the total 3,016 at the Convention] needed in order to nominate; it was thought that, without all 271 delegates from California, McGovern was still short of clinching the nomination, thus would be prevented from winning outright on the First Ballot). The Minnesotan was soon joined, in his protest, by most of the other presidential contenders on the California ballot, none of whom had yet formally withdrawn from the nomination contest (seeing that the nomination might still be undecided, they continued to hold on to any National Convention delegates that might have already been pledged to them).

The battle for California first moved on to the Convention's Credentials Committee (which had to certify the Temporary Roll of National Convention Delegates before the Convention itself could actually meet [after all, one can't hold a meeting until one knows who is actually entitled to walk in through the door]): while a preliminary hearing ruled in favor of McGovern, the Credentials Committee as a whole backed Humphrey's claim (politically, so-called "regular" Democrats of the era were not at all happy about McGovern's presidential candidacy, which they saw as an attempt by the "Left-ies" to take over "their" Party [the scars of Chicago'68 ran quite deep and were, therefore, rather difficult to heal]; such "regulars" still tended to overshadow the Convention's key Committees on Rules, the Platform and the like- including Credentials: there were more than a few members of the Credentials Committee who felt that they owed Humphrey one [which was rather ironic, considering that Humphrey- at the time the Mayor of Minneapolis- had spearheaded the rise of the post-WW2 liberal wing of the Party at its 1948 Convention, a rise that was largely responsible for many Southern Democrats bolting that Convention to endorse Strom Thurmond of South Carolina and his State's Rights "Dixiecrats"; yet, in both 1968 and 1972, Humphrey had emerged as the chief opponent of the next generation's version of that same liberal wing]; officially, the Credentials Committee ruled that California's Presidential Primary had violated the very essence of the motion made back in Chicago by a delegate from Buffalo named Joseph Crangle [who was the Party leader in Erie County and whose motion to so amend the report of the '68 Rules Committee went through rather quietly in the midst of an otherwise unruly Convention] requiring that the delegates be chosen as the result of "open" and "public participation" which, in turn, had been the basis of the McGovern-Fraser Commission doing its work in the first place).

So rebuffed by the Party's Credentials Committee, McGovern's campaign sued in the U.S. District Court for the District of Columbia to get their (under the rules of the Presidential Primary as it had actually been conducted) 151 of California's 271 delegates back (McGovern- who had served 14 out of the previous 16 years in both houses of Congress and, before that, had been executive secretary of his State's Democratic Party- could count votes, too! [thus, he well knew what he had to do on the First Ballot come the Convention if he wanted to be his Party's 1972 standard-bearer: those extra 151 delegates looked, more and more, as if they would- indeed- be the difference between his winning the nomination and failure to do so]). The resultant case was Brown v. O'Brien: the Brown was California Assemblyman Willie Brown- at the time, Chairman of that body's Ways and Means Committee (later, Brown would become Assembly Speaker and, later still, Mayor of San Francisco); the O'Brien was Lawrence O'Brien, one-time aide to President John F. Kennedy, later President Lyndon Baines Johnson's Postmaster General and, by 1972, Chairman of the Democratic National Committee (later, O'Brien would serve as Commissioner of the National Basketball Association; in fact, the trophy nowadays annually awarded to the NBA Champions is named for him). O'Brien was, at the time, in the midst of a rather busy June: besides preparing for his role as Chairman of the upcoming Democratic National Convention and being named as a defendant in a Federal lawsuit over California's Democratic National Convention delegates, his office had just been the victim of what President Richard Nixon's Press Secretary, Ron Ziegler, would describe as a "third rate burglary" but one which would eventually evolve into the so-called "Watergate Scandal" (the DNC's headquarters were in the Watergate complex along the Potomac in D.C.; besides giving a name to a whole slew of questionable political activities that would eventually force a President to resign, the DNC being at this location was the very reason that the McGovern campaign's suit- brought by Willie Brown, as McGovern's California campaign co-chairman- was filed in D.C. District Court in the first place).

The Federal District Court ruled in favor of the Credentials Committee's redistributing the 151 delegates among candidates other than McGovern. Brown- on behalf of the McGovern campaign- immediately appealed to the D.C. Circuit Court of Appeals which reversed the court below and found that the summary unseating of 151 California Democratic delegates already pledged under the rules of the State's Presidential Primary by a political Party was in violation of the U.S. Constitution (on grounds related to the Supreme Court's decisions in both U.S. v. Classic and Smith v. Allwright), ordering that the Democratic National Convention seat McGovern's delegates as the legitimate 151 among the delegates in dispute. O'Brien- on behalf of the Democratic Party and its Convention's Credentials Committee- now appealed to the U.S. Supreme Court via petition for a Writ of Certiorari (from the Latin: "to be more certain of": it is a writ through which a court orders an inferior court to produce the complete record of a case below [so that the higher court can then "be more certain" that the Law had been properly applied by the lower court]: in modern practice, it is the more usual method through which cases are heard by an appellate court where an appeal is not "one of right" [that is, where the higher court- as is true of the U.S. Supreme Court- has discretion over most of the cases which might be appealed to it]). Thus, the U.S. Supreme Court- convening in Special Term in early July 1972 immediately after the regular October 1971 Term of Court had already ended at the end of June '72- got O'Brien v. Brown [409 U.S. 1 (1972, obviously)] dumped into its lap .

On Friday 7 July 1972, the Nation's Highest Court issued a per Curiam Opinion (a joint Opinion of the Court not issued under any Justice's name specifically) denying the Writ of Certiorari (thus, it was declining to hear the case) yet, at the same time, staying the decision of the D.C. Court of Appeals- vacating that court's order in so doing. The principal reason that the Court gave for refusing to hear the case was that, considering that the Democratic National Convention would be convening the following Monday (10 July), it had come to the conclusion that it cannot in this limited time give to these issues the consideration warranted for final decision on the merits.

As for its stay of the lower appellate court's order, however, the Court stated that [a]bsent a stay, the mandate of the Court of Appeals denies to the Democratic National Convention its traditional power to pass on the credentials of the California delegates in question. The grant of a stay, on the other hand, will not foreclose the convention's giving the respective litigants [technically, Brown and O'Brien-- but, in reality, the McGovern campaign and the Democratic Party itself: REB-A] the relief they sought in federal courts. In light of the availability of the convention as a forum to review the recommendations of the Credentials Committee, in which process the complaining parties might obtain the relief they have sought from the federal courts, the lack of precedent to support the extraordinary relief granted by the Court of Appeals, and the larger public interest in allowing the political process to function free from judicial supervision, we conclude the judgments of the Court of Appeals must be stayed.

We recognize that a stay of the Court of Appeals judgments [the D.C. Court of Appeals had also ruled in the case of Keane v. National Democratic Party, which involved disputed Illinois Democratic National Convention delegates; Keane's appeal (another petition for a writ of Certiorari likewise denied by the Supreme Court) was combined with O'Brien in the Court's per Curiam Opinion: REB-A] may well preclude any judicial review of the final action of the Democratic National Convention on the recommendations of its Credentials Committee. But, for nearly a century and a half, the national political parties themselves have determined controversies regarding the seating of delegates to their conventions. If this system is to be altered by federal courts in the exercise of their extraordinary equity powers, it should not be done under the circumstances and time pressures surrounding the actions brought in the District Court and the expedited review in the Court of Appeals and in this Court.

Note two important things about this per Curiam Opinion, dear reader: first, it did not say that the federal courts could never exercise judicial supervision over disputes relating to the seating of delegates to a political Party's National Convention (indeed, the Court never ever ruled on the merits of O'Brien v. Brown at all!); second, without so much as saying so, the Court had placed O'Brien v. Brown within the rubric of what judges call "political questions"- that is: legal issues (however much differing interpretations of the Constitution and Law of the jurisdiction a court serves might be involved) which the court feels are best left to what the courts themselves refer to as the "political branches" (that is: the Executive and Legislative branches) of Government (at any level: Federal, State or local)- and the American Judiciary generally does not like to, if it can at all help it, enter the realm of such "political questions" in the course of applying Law to a specific "case or controversy" brought before it. (In addition, the Court, also without directly saying so, clearly felt that the "case or controversy" involved here was not all that much of a "live" one, since the Convention- which, as the Court had said, ever retained the authority to seat, or not seat, delegates to itself- had yet to even meet at the time the per Curiam Opinion was issued).

But how might a future U.S. Supreme Court rule if the same issue of disputed delegates to a Party's National Convention were to be presented to it again (something that, at least hypothetically, could even occur this Presidential Election year)?

The per Curiam Opinion in O'Brien was not, in fact, unanimous: Justice Byron White and William Douglas did not agree with the Court staying the orders of the Court of Appeals in either O'Brien or Keane (though this, in itself, yields no potential clues: the lower court's order in Keane upheld the Credentials Committee's decision regarding Illinois delegates-- here, by the way, I am concentrating on the O'Brien end of things, not only because it was the lead case of the two but because the circumstances of that case seem closer to the current situation involving not only Florida and Michigan on the Democratic side, but also the 5 States sanctioned by the Republicans for the same reasons [holding their Primaries too "early"]: in all the present-day circumstances, a Party formally stripping a State of delegates [as regards California back in 1972, they were not taken away but redistributed, 'tis true, but the action itself is essentially the same as what is being done- or, at least, potentially being done- by both Major Parties in 2008). Meanwhile, Justice Douglas also joined a dissent by Justice Thurgood Marshall which, besides disagreeing with the stays, also argued that the time to decide O'Brien and Keane was the present (while they were still "live": in Marshall's opinion, once the Convention met, they no longer would be) and, further, that the Court should not be able to evade its responsibility to decide the cases that come before it simply because of a time constraint, thus it should decide the cases on its merits imminently and not use the stay mechanism as, in Marshall's view, a "sleight of hand" manner of effectively deciding them anyway.

Marshall's dissent in O'Brien is, indeed, most instructive when it comes to how the Federal courts might handle the kinds of delegate disputes we are seeing, in both Major Parties, in 2008:

Marshall wrote I agree with the Court of Appeals that the action of the Party in these cases was governmental action, and therefore subject to the requirements of due process. The primary process was, by State law, the first step in a process designed to select a Democratic candidate for President; the State will include [presidential] electors pledged to that candidate on the ballot in the general election; the State is intertwined in the process at every step, not only authorizing the primary but conducting it, and adopting its result for use in the general election. In these circumstances, the primary must be regarded as an integral part of the general election [per United States v. Classic, which has been extensively examined in PART ONE of my Commentaries under this title: REB-A].

Justice Marshall then turned to one of the more specious arguments made, insofar as the disputed delegates from California were concerned, in favor of the Credentials Committee's redistribution of what would otherwise have been delegates pledged to Senator McGovern (an argument I myself will touch upon again, in that later PART THREE of this series of Commentaries under the above title), that the Credentials Committee's action could not be construed as "state action" by the Democratic Party as agent of the state (if the concept enunciated in Classic be applied) because the State had made a failed attempt to alter the law so as to allow the 1972 California Presidential Primary to be held using a method other than Winner Take All.

Marshall noted that, while [i]t is suggested that California at least, cannot be charged with responsibility for the rules that are challenged there, because California by law sought (albeit unsuccessfully) to prohibit the Party from adopting those rules, [t]hat argument is somewhat disingenuous, however, unless it can seriously be contended that California will decline to recognize on its ballot in the general election the nominee of the Democratic convention. For so long as the State recognizes and adopts the fruits of the primary as it was actually conducted, the State has made that primary an integral part of the election process, and infused the primary with state action, no matter how vociferously it may protest. A State cannot render the action of officials "private" and strip it of its character as state action, merely by disapproving that action.

Here Marshall specifically cited the case of Monroe v. Pape [365 U.S. 167 (1961)], a case arising when Chicago, Illinois police officers had invaded a home and searched it without a warrant while unreasonably detaining a member of the family living there: one of the legal arguments made in the police officers' favor was that, if the officers had- in fact- violated State law by what they had done, their actions could not then be considered to be "under color of State law" nor at all "state action" (the Monroe case had been brought in Federal court under Federal civil rights statutes and the police officers were here arguing that the case, rather, belonged in an Illinois state court, as Federal law did not at all apply: the complainant, meanwhile, had argued that the very same Federal law P.B. Classic of U.S. v. Classic had been accused of violating [Title 18, Section 241 of the United States Code, already quoted in PART ONE of this series of my Commentaries] properly applied to this very situation: the police were agents of the State, had violated the Federal statute in so acting, thus the proper forum for relief or remedy was Federal court, not State court). Justice Douglas, writing the Court Opinion in Monroe supporting the complainant's contentions, first dismissed any notion that the Federal statute in question "embraced only rights that an individual has by reason of his relation to the central government, not to state governments... But the history of the [statute]... presently involved does not permit such a narrow interpretation". Douglas then went on to state that "it is no answer that the State has a law which if enforced would grant relief. The federal remedy is supplementary to the State... the remedy created was... against those who representing a State in some capacity were unable or unwilling to enforce a state law [italics are Douglas's own]. It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claim of citizens to the enjoyment of rights, privileges and immunity guaranteed by the Fourteenth Amendment might be denied by state agencies". Douglas then went on to note that which Marshall, later, himself noted: that the fact that, according to its own laws, the State of Illinois would not have approved of the police officers' actions did not make their actions "private" and, therefore, non-"state action" beyond the scope of the Federal statute. "We conclude", Douglas specifically noted on behalf of the High Court, "that the meaning given 'under color of law' in the Classic case... was the correct one; and we adhere to it".)

Marshall's dissent in O'Brien went on to note that [w]hen the Party deprived the candidates of their status as delegates, it was obliged to do so in a manner consistent with the demands of due process... It is sufficient to say that beyond all doubt, these claimants are entitled to a judicial resolution of their claim. It is, of course, well established that the Constitution protects the right to vote in federal or state elections without impairment on the basis of race or color... or on the basis of any other invidious classification... With respect to federal elections, however, the right to vote enjoys a broader constitutional protection.

Here Marshall cited a case decided but a year and a half before, Oregon v. Mitchell [400 U.S.112 (1970)] and the Opinion in that case by a long-time Justice who had retired, and then died, only within the preceding year, Hugo Black. Oregon v. Mitchell, by the way, was a case that played a role in an element of the Right to Vote rather important to the youngest voters in this year's elections (a sequence of events that I well remember as they actually occurred while I was a freshman in high school and, thanks to this sequence, I was even allowed to cast my very first vote in an election just before graduating from high school!):

On 22 June 1970, President Nixon signed into law what is commonly known as the Voting Rights Act of 1970 [84 Stat. 314]- although, technically, its title was the 1970 Voting Rights Act (of 1965) Extension. Among its provisions was one mandating that all otherwise qualified persons who had reached the age of 18 must be permitted, by the States, to vote in all Federal, State and local elections. As part of Oregon v. Mitchell, decided on 21 December 1970, the U.S. Supreme Court ruled that, while Congress had power (under the authority granted it in Art. I, Sec. 4, clause 1 to regulate, among other things, the "manner of holding [Congressional] elections") to mandate 18 as the minimum voting age for Federal elections, it did not have power to force the States to lower their voting ages to 18 as regarded State and local elections.

In response, Congress passed a proposed Constitutional Amendment on 29 March 1971, sending it out to the States for possible ratification. It was ratified by the requisite 38th State on 1 July 1971 (just a little over three months later! The entire amending process, if we use the adverse decision in Oregon v. Mitchell as a starting point, only took a little over six months-- unusually "rapid transit" for an Amendment to the U.S. Constitution!) and formally certified as the 26th Amendment to the Federal Constitution by the General Services Administration on 5 July 1971.

Section 1 of this Amendment, of course, reads "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age". Whenever I get an e-mail from someone challenging my oft-stated view that if Americans really want to change things, they can do so if only they are willing to roll up their sleeves and at least break a sweat for a while (of course, I am here referring to affecting the legal, political or constitutional situation of moment), I cite the ratification of the 26th Amendment for, if an Amendment can achieve consensus and go through that quickly, any attempt to improve the American political and governmental system is well worth the serious effort it might take to implement such improvements!

Anyway, now back to Justice Thurgood Marshall's dissent in O'Brien v. Brown:

Marshall specifically cited those portions of the by then-late Justice Black's Opinion in Oregon v. Mitchell where Black- justifying the notion, among other things involved in the case, that Congress at least could lower the voting age to 18 for Federal elections by mere statute- had written that "[t]he Constitution allotted to the States the power to make laws regarding national elections, but provided that if Congress became dissatisfied with the State laws, Congress could alter them. A newly created national government could hardly have been expected to survive without the ultimate power to rule itself and fill its offices under its own laws... I would hold, as have a long line of decisions in this Court, that Congress has ultimate supervisory power over congressional elections. Similarly, it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications of voters for elections to those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections." (Black created a footnote to his Opinion- fn.7 at 400 U.S. 124- in which he stated that "inherent in the very concept of a supreme national government with national officers is a residual power in Congress to insure that those officers represent their national constituency as responsively as possible. This power arises from the nature of our constitutional system of government and from the Necessary and Proper Clause [Art. I, Section 8, clause 18 of the U.S. Constitution where The Congress shall have Power... To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers (that is, those within Art. I, Section 8 itself: REB-A), and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.]).

Marshall's dissent concluded with his belief that, based on the late Justice Black's reasoning in Oregon v. Mitchell, the right to vote in national elections, both congressional and presidential, is secured by the Federal Constitution. Moreover, federal protection of the right to vote in federal elections extends not only to the general election, but to the primary election as well [Marshall again cited U.S. v. Classic at this point]... Where the primary is by law made an integral part of the election machinery, then the right to vote at that primary is protected just as is the right to vote at the election. In the cases before this Court, it is claimed that the presidential primary is an integral part of the election machinery, and that the right to vote in the presidential primary has been impaired. That claim should be heard and decided on its merits.

So dissented Justice Thurgood Marshall as regarded the dispute before the Court involving the makeup of the 1972 Democratic National Convention delegation from California.

George McGovern, of course, went on to win his Party's nomination in 1972 and thereafter lose the ensuing Presidential Election in a landslide in which incumbent President Nixon won all but one State (Massachusetts) and D.C. The South Dakotan had won the nomination outright on the First Ballot, because- on the very first day of the Convention- that body had, indeed, voted to seat all 271 of his California delegates (thus allowing the Winner Take All results from California's Presidential Primary to stand): he won the initial vote on whether or not to seat the "disputed 151" as McGovern delegates (the vote was 1618.28-1238.22 [and, by the way, thank goodness that '72 was to be the last Democratic Convention that would see such widespread use of "fractional voting" (because of too many jurisdictions in which there were more actual delegates than "delegate votes")], including the 120 California McGovern delegates not in dispute [subtract these 120 and the resultant 1498.28 is still short of the Convention majority of 1509]) and then won a subsequent vote on a motion to overturn an earlier ruling from the Chair (Larry O'Brien himself) that allowed these 120 to have even voted the first time round (on grounds that, if some of the delegates from a given State are in dispute, that State's entire delegation should be precluded from voting on a question affecting that State)-- this second vote was 1689.52-1162.23 in McGovern's favor and against the motion (thus, even without the 120 California delegates not in dispute, there would have been a majority against this motion- the first clear sign that McGovern would be nominated on Roll Call of the States two nights later). In fact, these very votes I just cited would be the last time (at least so far! [;-)]) that a roll call vote of any kind on the floor of a Major Party National Convention at least in some way determined that Party's presidential nominee!

In the end, 1972's delegate dispute ended up being decided by the delegates to the National Convention itself; it, obviously, remains to be seen just who will get to decide the currently ongoing delegate disputes (in both Major Parties) and, more importantly, just how they are to ultimately be resolved!

My own views on the matter? Those will just have to wait for PART THREE.

To be further continued...

 


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