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June 30, 1981


The opinion of the court was delivered by: Shadur, District Judge.


This action stems from a political dispute between the Republican-affiliated party*fn1 and the Democratic-affiliated party*fn2 in the Lyons Township elections held April 7, 1981. This Court has already dealt with various of the issues in opinions dated March 30, April 3 and April 6, 1981, which state the facts of the case in some detail. 512 F. Supp. 695. Now defendants move to dismiss for lack of subject matter jurisdiction, asserting the absence of action "under color" of state law.*fn3 For the reasons stated in this memo randum opinion and order defendants' motion is denied.

As for Section 1983, the gravamen of the Complaint is defendants' attempted frustration of the electoral process by the deliberate deception of Republican voters. Beginning with the "white primary cases," Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) and its progeny, it has been established that private conduct that is an integral part of that electoral process meets the need for "state action" as a predicate for federal jurisdiction. However, none of the Supreme Court decisions in this area of law provides more than dicta from which each side tries to draw solace. For example, both plaintiffs and defendants seek to invoke Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978):

  One such area has been elections. While the
  Constitution protects private rights of association
  and advocacy with regard to the election of public
  officials, our cases make it clear that the conduct of
  the elections themselves is an exclusively public
  function. This principle was established by a series
  of cases challenging the exclusion of blacks from
  participation in primary elections in Texas. Terry v.
  Adams, 345 U.S. 461 [73 S.Ct. 809, 97 L.Ed. 1152]
  (1953); Smith v. Allwright, 321 U.S. 649 [64 S.Ct.
  757, 88 L.Ed. 987] (1944); Nixon v. Condon, 286 U.S. 73
  [52 S.Ct. 202, 76 L.Ed. 984] (1932). Although the
  rationale of these cases may be subject to some
  dispute, their scope is carefully defined. The
  doctrine does not reach to all forms of private
  political activity, but encompasses only
  state-regulated elections or elections conducted by
  organizations which in practice produce
  "the uncontested choice of public officials." Terry,
  supra, [345 U.S.] at 484 [73 S.Ct. at 820] (Clark,
  J., concurring). As Mr. Justice Black described the
  situation in Terry, supra, at 469 [73 S.Ct. at 813]:
  "The only election that has counted in this Texas
  county for more than fifty years has been that held by
  the Jaybirds from which Negroes were excluded."

Though the issue is certainly not free from doubt in a case where, as here, neither party's nomination is the functional equivalent of election, some language in the Fifth Circuit's opinion in Riddell v. National Democratic Party, 508 F.2d 770, 774-75 (5th Cir. 1975) tends to support jurisdiction in this case, as the quoted language from Flagg would not.

But this Court need not rely on the arcane mysteries that sometimes attend decisions as to what conduct of persons other than public officials is nonetheless "under color" of state law. See, e. g., Jenkins v. White Castle Systems, Inc., 510 F. Supp. 981 (N.D.Ill. 1981). Section 1985 confers federal court jurisdiction over private conspiracies where the defendants are allegedly infringing plaintiffs' rights to equal protection or equal privileges and immunities under the laws. Griffin v. Breckinridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971). Both the First Amendment freedom of political association and the voting franchise must be viewed as among the most valuable "privileges and immunities" in our democratic system. And the Griffin v. Breckinridge requirement that the private conspiratorial discrimination involve a "class-based animus" must be held satisfied by an alleged effort to disenfranchise Republican voters. Though the particular conduct charged was of course different, the language in Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973) might well have been written for this case:

  We hold that § 1985(3)'s protection reaches
  clearly defined glasses, such as supporters of a
  political candidate. If a plaintiff can show that he
  was denied the protection of the law because of the
  class of which he was a member, he has an actionable
  claim under 1985(3). This interpretation does not
  transform the statute into the "general federal tort
  law" feared by the Griffin Court and gives full effect
  to the congressional purpose in enacting to statute.

Defendants' arguments cannot be dismissed lightly. On analysis, however, this is not the kind of general tort law claim that the Supreme Court refused to encompass within the coverage of Section 1985(3) in Great American Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 378, 99 S.Ct. 2345, 2352, 60 L.Ed.2d 957 (1979).

With plaintiffs' action thus withstanding defendants' motion to dismiss, the parties will be expected to proceed actively with necessary discovery. This case is set ...

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