dissenting.
I respectfully dissent. I would sustain Carlos L. Correa’s challenge to the constitutionality of sections 172.021(e) and 141.-063(2)(B) of the Texas Election Code and deny relator’s application for mandamus.1
The United States Supreme Court held in Anderson v. Celebrezze, 460 U.S. 780, 787, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983), that the first and fourteenth amendments forbid a state from using its regulatory power to unnecessarily burden access to the ballot. In Pilcher v. Rains, 853 F.2d 334, 336 (5th Cir.1988), the United States Fifth Circuit Court of Appeals held that the Anderson case and the first and fourteenth amendments prohibit strict interpretation of the requirements of 141.063(2)(B) of the Texas Election Code. The Fifth Circuit held that a missing voter registration number did not invalidate a signature. This is the same provision in the Election Code which Judge Shipley claims makes the petition of candidate Carlos L. Correa deficient.2
Here, the majority disqualifies a candidate because he has only 248 valid signatures. The majority holds he lacks two valid signatures. To arrive at this result, the majority subtracted three signatures because of lack of voter registration numbers and five signatures for incorrect voter registration numbers. I think, at a minimum, the Pilcher case requires us to credit candidate Correa with those eight signatures.
Quoting from the Anderson case, the Pilcher opinion describes the constitutional test we should apply to a regulation that limits ballot access:
[The court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment the court must not only determine the legitimacy and strength of each of those interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional
*770Pilcher, 853 F.2d at 336.
We should identify and evaluate the precise interests of the State for limiting Cor-rea’s access to the ballot. To do that, we must look at the history of judicial selection.
Beginning in the late 1970’s, judicial elections in the large counties became partisan. In the elections of 1982 and 1984, a number of incumbent judges in Dallas and Harris Counties were defeated. In Harris County, for example, six incumbent Republicans were defeated in 1982; two years later, seven incumbent Democrats were defeated. A Harris County judicial candidate’s success in those years was often tied to the top of the ticket races.
As elections became more dependent on forces at the top of the ticket, some candidates filed for positions on their party’s ballot at the last minute. Without any encouragement from the political parties, some candidates filed for any open spot on their party’s ticket.3 Many of the last minute filers had no intention of even running a campaign.4 Instead, they were gambling that the top of their ticket would elect them.
The judges and lawyers of the large counties were understandably disturbed by the back and forth swings. The system was not stable. Judges were elected because of their affiliation with that year’s dominant political party.5 Qualifications and experience seemed to have little or nothing to do with the election of judges in the large counties.
As a result of the problem, the judges, lawyers, and public interest groups lobbied for an amendment to discourage last minute candidates for judicial position in the large counties. Section 172.021, Tex.Elec. Code Ann. (Vernon 1986), was amended to require candidates for judicial offices in counties with a population of more than 850,000, to file 250 signatures in addition to a filing fee.6 The purpose of the restriction on candidates for judicial offices in the populous counties was to limit last-minute access to the ballot. With the requirement of collecting signatures, a candidate for judicial position was required to make public his or her intentions to file for office weeks in advance. The amendment forced those who intended to run for judicial office to make their decisions in advance of the filing deadline and make it public.
I believe the system of restricting access to the ballot in large counties by requiring 250 signatures is unconstitutional. I do not see a legitimate state interest in protecting judicial incumbents in large counties. If the State has a legitimate interest in protecting incumbents against “frivolous filers,” then the State should assert this interest in all counties, and impose the same burden statewide. The unequal imposition of this burden makes the requirement under section 172.021(e) unconstitutional on its face.7
*771ORDER
PER CURIAM.IT IS ORDERED that the writ of mandamus of February 16, 1990, in Cause No. 01-90-00122-CV styled Donald K. Shipley v. Harris County Democratic Executive Committee and Carlos L. Correa is hereby vacated in accordance with the Supreme Court of Texas’ order of February 21,1990.
IT IS SO ORDERED.
. At oral argument, the Harris County Democratic Party waived the challenge to the constitutionality of section 172.021(e), Tex.Elec.Code Ann. (Vernon Supp.1990).
. In footnote 2, the majority says Pilcher does not apply here because it involved a political party's access to the ballot (as opposed to an individual candidate’s access), and the number of voter registration numbers required was 34,-415 (compared to 250). I do not think those distinctions are worth noting. A candidate’s access to the ballot cannot be less important than a party’s access. The purpose of the Libertarian party suit was to gain access to the ballot, so it could place its candidates on the ballot. The majority also says that the Libertarian Party had to fulfill requirements that were not imposed on other parties. The majority implies that Correa does not have to fulfill any requirements that are not imposed on other candidates. I disagree. Only the candidates in large counties have this burden. Candidates in small counties do not.
Finally, the majority says, because the restriction does not involve an unconstitutional burden on a political party’s access to the ballot, Pilcher does not control. I think the political party’s interest in protecting incumbents places the party at odds with their own candidates. Correa’s interest in the constitutionality of the process is sufficient to raise the issue.
. The last-minute filers became known as "frivolous filers.”
. In 1984, one of these last minute candidates was elected to a Harris County district bench while she was on vacation in England.
. In Harris County, 94% of incumbent Democrats won when a Democrat carried the top of the ticket. Champagne and Berry, The New Partisanship in Texas Judicial Elections, TexJB.J. 1102, 1105 (November 1987). Similarly, 83% of incumbent Republicans won contested district court races in Harris County when a Republican carried the top of the ticket. Id.
. In lieu of a filing fee, a candidate may file 250 signatures. A candidate could either: (1) pay a filing fee and file 250 signatures: or (2) file 250 signatures in lieu of a filing fee, and file 250 signatures (250 + 250 = 500). Tex.Elec.Code Ann. § 172.021(e) (Vernon Supp.1990).
.Section 172.021(e) also unfairly limits ballot access to potential judicial candidates in some small counties. The provision requires the candidates for a court of appeals district that serves a large county, to file 250 signatures. Besides Harris County, the First Court of Appeals serves 13 small counties. Because Harris County has a population over 850,000, any candidate for the First Court of Appeals must file the 250 signatures, even if the candidate lives in a small adjoining county, like Waller County for example.