concurring. I concur in the analysis and result of today’s decision. I regret, however, the loss of such a physically and mentally vigorous and capable jurist as relator, whose continued service would have greatly benefited the people of this state.
*171The issue of the constitutional validity of Section 6(C), Article IV of the Ohio Constitution is one of first impression in Ohio. However, the present posture of legal precedent in Ohio and in other state jurisdictions, as well as in the federal system, compels the upholding of this provision, denying relator the writ he seeks.
This case presents a very debatable legal issue. Today we deny relator’s claim of his right to be on the ballot as a judicial candidate on the basis that the age-seventy Ohio constitutional provision does not violate the equal protection or other provisions of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has not yet spoken on this exact issue. A flexible view and rationale could well guide a court to a conclusion that Section 6(C), Article IV of the Ohio Constitution violates the Fourteenth Amendment to the United States Constitution.
Malmed v. Thornburgh (C.A. 3, 1980), 621 F. 2d 565; Rubino v. Ghezzi (C.A. 2, 1975), 512 F. 2d 431; and Trafelet v. Thompson (C.A. 7,1979), 594 F. 2d 623, which upheld similar mandatory retirement provisions in the state Constitutions of Pennsylvania, New York, and Illinois, are decisions of three circuits of the United States Courts of Appeals and are not binding on our court or on the United States Supreme Court. Neither are state supreme court decisions of Idaho, Louisiana, Missouri, New Hampshire, New York, Utah or Vermont binding on our court or on the United States Supreme Court.
The United States Supreme Court has handed down a line of decisions which I believe at least arguably imply that the age-seventy provision at bar offends the federal Constitution. These cases involve the right to vote and the right of access to the ballot, and appear to be sufficiently analogous to the case at bar to warrant discussion.
In Bullock v. Carter (1972), 405 U.S. 134, the court examined a Texas statutory scheme requiring candidates for local office to pay filing fees as high as $8,900 as a condition to having their names placed on the ballot in a primary election. In determining what standard is appropriate for reviewing barriers to candidate access to the ballot, the court noted that “[t]he existence of such barriers does not of itself compel close scrutiny.” Id. at 143. “In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Id. The Bullock court considered the filing fee requirement therein to be “patently exclusionary,” precluding some candidates from the ballot no matter how qualified and no matter how broad or enthusiastic their popular support. Thus, the effect on voters was neither incidental nor remote. Id. at 143-144. The court concluded that these factors called for the use of the “strict scrutiny” standard, under which the limitation must be shown to be necessary, not merely rational. Id. at 147.
A credible argument could be made that the age-seventy limitation in the instant cause is analogous to the filing fee requirement in Bullock. It, *172too, may be reviewed as “patently exclusionary” in that all judicial candidates over a certain age, no matter how qualified and no matter how broad or enthusiastic their popular support, are excluded from the ballot. Thus, the strict scrutiny standard may be called for, requiring the state to demonstrate that the limitation is necessary to achieve some compelling state interest.
A showing of necessity in this case would be difficult. The state interest herein is ostensibly to prevent candidates prone to senility or other infirmities from serving as judges. But the age-seventy limitation is not necessary to achieve this objective. R.C. 2701.11 and 2701.12 allow for the removal and forced retirement of judges for, among other reasons, “disability.” See, also, Gov. Jud. R. II 5(b) and II 10(b).
Even if the age-seventy limitation were necessary for the achievement of some compelling state interest, it may still be constitutionally infirm. The United States Supreme Court has held that where a state intends to restrict access to the ballot, it must use the least drastic means to achieve that end. Illinois State Bd. of Elections v. Socialist Workers Party (1979), 440 U.S. 173, 185. In that case, the court reviewed an Illinois statutory scheme requiring new political parties and independent candidates to obtain the signatures of twenty-five thousand qualified voters in order to appear on the ballot in statewide elections. The court noted that “an election campaign is a means of disseminating ideas as well as attaining political office. * * * Overbroad restrictions on ballot access jeopardize this form of political expression.” Id. at 186. It could be argued that the age-seventy limitation in the instant cause, in its attempt to exclude unfit candidates, does not employ “the least drastic means” to achieve that end. It is a blanket exclusion of all judicial candidates over a certain age, no matter how fit a particular candidate of that age may actually be.
In sum, it appears from the foregoing that a “patently exclusionary” state restriction on access to the ballot must be shown to be necessary to the achievement of a compelling state interest. Bullock, supra. See, also, Williams v. Rhodes (1968), 393 U.S. 23 [45 O.O. 2d 236] (striking down an Ohio statutory scheme requiring a new political party to obtain petitions signed by qualified electors totalling fifteen percent of the number of ballots cast in the last gubernatorial election as a prerequisite for a ballot position in presidential elections). Even if shown to be necessary, such restrictions must still employ the least drastic means to achieve their purpose. Illinois State Bd. of Elections, supra. See, also, Lubin v. Panish (1974), 415 U.S. 709, 716 (invalidating a state filing fee requirement which compels even indigents to pay the fee without providing reasonable alternative means of ballot access). It may be argued that the age-seventy limitation sub judice meets neither of these standards.
The age-seventy limitation may also impermissibly burden a second fundamental right: the right of voters to assert their political preferences at the polls. Illinois State Bd. of Elections, supra, at 184. Infringement of *173this fundamental right also calls for a strict standard of review, under which the state must show that the infringement is necessary to advance a compelling state interest. See, e.g., Harper v. Virginia Bd. of Elections (1966), 383 U.S. 663 (striking down a Virginia constitutional provision conditioning the right to vote on the payment of a poll tax).
Snowden v. Hughes (1944), 321 U.S. 1, arguably can be distinguished from the instant cause. Snowden concerned the alleged erroneous application by members of the state primary canvassing board of the Illinois election laws, thereby depriving petitioner of the Republican nomination for state representative and of election to that office. The petitioner alleged that members of the canvassing board refused to file a true certificate of his nomination, depriving him of election as state representative in a state assembly. In support of its dismissal of the complaint, the United States Supreme Court stated, inter alia, “[t]here is no allegation of any facts tending to show that in refusing to certify petitioner as nominee, the Board was making intentional or purposeful discrimination between persons or classes. * * *” (Emphasis added.) Id. at 7. “The unlawful administration by state officers of a state statute, fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. * * *” (Emphasis added.) Id. at 8. With reference to relator Keefe and his age class, there has been “intentional and purposeful discrimination.”
Likewise, Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307, is distinguishable. There, the court upheld a state law requiring uniformed state police officers to retire at age fifty, concluding at 317 that the state law “does not deny appellee equal protection of the laws.” The court noted that the record included testimony of three physicians concerning the relationship between aging and ability safely to perform police functions, id. at 311, and then applied a rational basis test, stating: “Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police.” Id. at 314. Unlike Murgia, there is no need to “protect the public by assuring physical preparedness” by barring relator Keefe and his age class from judicial office.
Vance v. Bradley (1979), 440 U.S. 93, held that the federal law requiring foreign service officers to retire at age sixty was constitutionally valid and did not violate the equal protection provision of the Fifth Amendment to the United States Constitution. Vance is also distinguishable. In upholding the mandatory retirement law therein, the Vance court emphasized the fact that the foreign service involves extended overseas duty under difficult and often hazardous conditions. However, the rationale in Vance supports the conclusion that a government is empowered to enact a law making retirement mandatory on the basis of age. Since Congress has the power to enact a law requiring foreign service officers to retire at age *174sixty, the people of Ohio have the power to enact an amendment to the Ohio Constitution requiring judges to retire on the basis of age. This is so even though this result appears to collide with, and to reject, the holdings of the ballot-access decisions of the United States Supreme Court in Bullock, Illinois State Bd. of Elections, Williams, and Lubin, discussed supra.
The observation is made that Section 6(C), Article IV is authorized by Section 2, Article I of the Ohio Constitution which grants power to the people to “alter” or “abolish” any part of their state government as they deem necessary. This observation gives no consideration to whether Section 6(C) conflicts with the Equal Protection Clause of Section 2, Article I. Nor have we decided, or even considered, this or any other state constitutional issue in this case. The basic issue herein is whether Section 6(C) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It does not violate the Fourteenth Amendment because of the rationale of the United States Supreme Court in a comparable situation in Vance, previously discussed, which applies to relator in the instant cause.
It is generally accepted that a court has power to declare a state constitutional provision unconstitutional because it violates a provision of the United States Constitution, or to uphold it because it does not. I note further that any observation concerning the constitutional validity of any possible future state constitutional amendment providing for the appointment of state court judges and abolishing their election is premature, and beyond the pale of the inquiry in this case.
It is evident from the foregoing that the case at bar presents a multitude of difficult constitutional questions as yet unresolved by this nation’s highest court. I look forward with interest to the possibility of more specific guidance from that quarter.