Cite as: 517 U. S. 186 (1996)
Breyer, J., concurring in judgment
hold that this conclusion is incorrect, we postpone any consideration of the merits until after they have been addressed by the District Court.48
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Breyer, with whom Justice O'Connor and Justice Souter join, concurring in the judgment.
One historical fact makes it particularly difficult for me to accept the statutory and constitutional arguments of the appellees. In 1965, to have read this Act as excluding all political party activity would have opened a loophole in the statute the size of a mountain. And everybody knew it. They knew that, despite the enactment of the Fourteenth and Fifteenth Amendments, African-Americans had been systematically deprived of the right to vote in many places and for many years. They knew, too, that States had tried to maintain that status quo through the "all-white" primary—a tactic that tried to avoid the Fifteenth Amendment by permitting white voters alone to select the "all-white" Democratic Party nominees, who were then virtually assured of victory in the general election. Once the Supreme Court held unlawful the "all-white" primary, Smith v. Allwright, 321 U. S. 649 (1944), the obvious next step would have been to substitute an "all-white" preprimary Democratic Party nominating
48 Appellees make one final argument that this case is moot because the 1994 convention has already been held. We note, however, that the Party has not disavowed the practice of imposing a delegate filing fee for its nominating convention, nor has it returned the $45 collected from appellant Morse. Indeed, the Party has required fees as far back as 1964, and continues to assert that they are necessary to finance its conventions. Like other cases challenging electoral practices, therefore, this controversy is not moot because it is "capable of repetition, yet evading review." Anderson v. Celebrezze, 460 U. S., at 784, n. 3; Storer v. Brown, 415 U. S. 724, 737, n. 8 (1974); Moore v. Ogilvie, 394 U. S. 814, 816 (1969).
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