dissenting. I dissent from the majority’s disposition of this case, because it is a flat, flagrant, and open violation of the rights guaranteed to Judge Keefe by the Constitution of the United States. And, if this were not enough, the majority also commits the grievous error of undercutting the basic and fundamental right to vote of those who would support Judge Keefe, and those judges similarly situated, in their bids for reelection.
In actual operation, the judicial “retirement” provision in Section 6(C), Article IV of the Ohio Constitution does not preclude a judge from occupying the bench after he turns seventy. For example, if elected at age sixty-nine, an Ohio judge can complete the term for which he was elected, not “retiring” until age seventy-five. Also, he may be appointed to temporary service by the Chief Justice of this court at any age. The “retirement” provision only bars a candidacy for election after age seventy. So, while a judge can finish a term begun before age seventy and can, at any age, serve by assignment of the Chief Justice, he is forbidden to serve by assignment of the people of Ohio. As a result, we face two intertwined and related problems: first, the right of a person to be a candidate for the bench after age seventy, and second, the right of the electorate to vote for the septuagenarian judicial candidate.
The majority opinion relies on irrelevant precedent, and refuses to acknowledge the most recent pronouncements from the United States Supreme Court which govern the issues herein.
The majority states that the federal Constitution dictates only a rational basis standard of review in mandatory retirement cases, Vance v. Bradley (1979), 440 U.S. 93; Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307. But because of the right-to-vote implications of this case, and because voting is a personal, fundamental right, Reynolds v. Sims (1964), 377 U.S. 533, a higher standard of review is required.
In ballot access cases, the United States Supreme Court has considered both the right of the candidate to have his name put before the electorate as well as the interests the voters have in considering the candidate and voting for him.
In Bullock v. Carter (1972), 405 U.S. 134, the court considered a challenge to a Texas filing fee system. There, it was claimed that the fees *180imposed were excessive and effectively barred some candidates from the ballot. Chief Justice Burger wrote at 143 that “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” He further noted that some candidates “are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support.” Id. The court used a strict scrutiny standard of review in Bullock: “Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper [v. Virginia Board of Elections (1966), 383 U.S. 663], that laws must be ‘closely scrutinized’ * * Id. at 144.
Lubin v. Panish (1974), 415 U.S. 709, was another ballot access case involving filing fees. The state of California there contended that its fee scheme was necessary to discourage frivolous candidacies. The court agreed that such candidacies tend to result in “laundry list” ballots, which “discourage voter participation and confuse and frustrate those who do participate * * *.” Id. at 715. But, Chief Justice Burger, writing for the court, said at 716: “This legitimate state interest, however, must be achieved by a means that does not unfairly or unnecessarily burden either a minority party’s or an individual candidate’s equally important interest in the continued availability of political opportunity.” (Emphasis added.) And, echoing Bullock, the Chief Justice remarked: “The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on the ballot is entitled to protection and is intertwined with the right of voters. ” (Emphasis added.) Id. Continuing, the court declared: “[T]he right to vote is ‘heavily burdened’ if that vote may be cast only for one of two candidates in a primary election at a time when other candidates are clamoring for a place on the ballot. It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Id. “The point, of course, is that ballot access must be genuinely open to all, subject to reasonable requirements.” Id. at 719.
In Communist Party of Indiana v. Whitcomb (1974), 414 U.S. 441, the court considered a challenge to a statute that denied ballot space to candidates who refused to take an oath that they did not advocate overthrow of the government. Again reverting to a strict scrutiny review, the court noted that the First Amendment’s freedom of association protects “access to the ballot, rights of association in the political party of one’s choice, interests in casting an effective vote and in running for office * * *. ” (Emphasis added.) Id. at 449.
*181Another case compelling a result opposite to the majority opinion is Illinois State Bd. of Elections v. Socialist Workers Party (1979), 440 U.S. 173. Challenged was the state’s requirement as to the number of signatures for nominating petitions. The claim was that the number established by law was excessive and prohibited new and. minority parties from participating in elections. Consistent with its previous cases, the Supreme Court at 184 said:
“Restrictions on access to the ballot burden two distinct and fundamental rights, ‘the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’ Williams v. Rhodes, supra [(1968), 393 U.S.] [45 O.O.2d 236], at 30.5 The freedom to associate as a political party, a right we have recognized as fundamental * * * [citation omitted], has diminished practical value if the party can be kept off the ballot. Access restrictions also implicate the right to vote because absent recourse to referendums, ‘voters can assert their preferences only through candidates or parties or both.’ * * * [Citations omitted.] By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences. And for reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure. * * * [Citations omitted.]
“When such vital individual rights are at stake, a State must establish that its classification is necessary to serve a compelling interest. * * * [Citations omitted.]” (Emphasis added.)
Further in that same vein, the court pointed out: “However, our previous opinions have also emphasized that ‘even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty,’ * * * [citation omitted], and we have required that States adopt the least drastic means to achieve their ends. * * * [Citation omitted.] This requirement is particularly important where restrictions on access to the ballot are involved.” Id. at 185. “[A]n election campaign is a means of disseminating ideas as well as attaining political office. * * * [Citations omitted.] Overbroad restrictions on ballot access jeopardize this form of political expression.” Id. at 186.
And finally, just a short while ago, the United States Supreme Court decided Anderson v. Celebrezze (1983), 460 U.S. 780. At issue was this state’s requirement that independent candidates for President and Vice *182President file nominating petitions no later than seventy-five days before the primary election date. In holding this provision unconstitutional under the First and Fourteenth Amendments, the court reiterated the stand it had taken in the cases we have thus far discussed. The court said at 786: “Our primary concern is with the tendency of ballot access restrictions ‘to limit the field of candidates from which the voters might choose.’ Therefore, ‘in approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.’ ” The court then provided these guidelines on evaluating such restrictions under the federal Constitution: A 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 also must 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.” Id. at 789.
The “character and magnitude of the asserted injury” has manifested itself. Under Section 6(C), Article IV of the Ohio Constitution, relator is denied a chance to be a candidate for reelection to the court of appeals. His supporters are denied an opportunity to vote for a candidate whose conduct of the office is in accord with their own philosophy. Together, these restrictions operate to prevent both relator and his backers from associating for the advancement of political beliefs, and such restrictions, as well, preclude them from effectively casting their votes, in violation of the First and Fourteenth Amendments.
What are the “precise interests put forward by the State as justifications” for infringing on these rights?
Respondents rely primarily on Maimed v. Thornburgh (1980), 621 F. 2d 565, where the Third Circuit Court of Appeals upheld Pennsylvania’s prohibition on candidates standing for election to judicial office after age seventy. The Maimed opinion sets forth four reasons in support of the ban: (1) that retired judges furnish a pool of judicial manpower to help ease court congestion, while younger judges are provided a means to move into the system, (2) that mandatory retirement eliminates the unpleasantness of selectively removing senile judges, (3) that mandatory retirement prevents harm to the justice system by senile judges who can “ ‘undo the efforts of a hundred excellent Judges,’ ” and (4) that mandatory retirement conforms to the recommendations of bar associations and other groups, and corresponds with the trend in other public and private employment.
Can the interests promoted by the respondents withstand the strict scrutiny we are required to give them, and are they of such magnitude and *183importance that relator’s federal constitutional rights must give way in the face of them? Unquestionably and absolutely not.
The Pennsylvania constitutional provisions under review in Maimed v. Thornburgh, supra, were markedly different from Ohio’s. Pennsylvania’s judges do not run in competitive elections, but rather must periodically face a retention election where no other candidate is considered. Section 15, Article V of the Pennsylvania Constitution.6 Also, upon reaching seventy, a Pennsylvania judge must retire immediately. He cannot complete his term. Section 16(b), Article V of the Pennsylvania Constitution. Retired judges can, however, be assigned to temporary service. Section 16(c), Article V of the Pennsylvania Constitution. Also, the Maimed decision seriously errs by not considering the right-to-vote issue always discussed by the Supreme Court in ballot access cases. Consequently, Maimed employed only a rational basis standard of review, instead of strict scrutiny. Maimed is unpersuasive in the present case because of that omission.
The claim that retired judges increase judicial manpower is undoubtedly true, but if court congestion is a real problem, the legislature should act, since it alone has the power to establish courts and provide for the number of judges. Section 15, Article IV of the Ohio Constitution. This remedy is far more desirable than trampling under foot a seventy-year-old’s right of ballot access with its consequent removal of his candidacy from voter consideration.
The state may indeed be saved in a few cases from the unpleasant task of removing a disabled judge from the bench. But I cannot endorse — as the majority does — the violation of a candidate’s right to compete for judicial office and sanction the denial of the electorate’s right to consider him, when less constitutionally intrusive means of addressing the problem are available. For example, R.C. 2701.11 and 2701.12 allow for the removal and forced retirement of judges for disability. In addition, this court’s Rules for the Government of the Judiciary permit the suspension of a judge for mental illness. See, e.g., Gov. Jud. R. II 5(b) and II 10(b). It is commonly known that mental disease can occur at any age. In fact, the judicial age ban was completely ineffective as a remedy to the problems we faced in the disabled judge case of Ohio State Bar Assn. v. Mayer (1978), 54 Ohio St. 2d 431 [8 O.O.3d 434]. Another safeguard in Ohio is the fact that candidates compete for judicial office, and during the campaign itself all sorts of information — both good and bad — become available to the voting public. What better way to preserve the integrity of the state’s *184judicial system than to resort to the repository of democracy — the electorate — and allow it to choose those who are qualified, and to reject and put to pasture those who are not? Finally, there is no age restriction on any other elected official to prevent his consideration by the voters. In all fairness, judges should not carry this age burden if no other official is required to carry it. In fact, given our adversary system of justice, it stands to reason that parties to any lawsuit, in vigilant advocacy of their positions, would be the first to detect and take steps to remedy the situation should the robe of senility cast itself about the bench. The opportunity for this kind of personal association with other official decision makers is not generally present; yet, other- officials can aspire to elective office at any age.
The popularity of mandatory retirement in other public and private employment is completely irrelevant to the instant dispute. Appointed officials and workers in the private sector do not hold their jobs by virtue of having been elected to them. Consequently, the First and Fourteenth Amendments’ guarantees concerning freedom of expression and association, with their related rights to vote and run for office, are not involved in such cases.
The majority embraces Maimed v. Thornburgh, supra, but that opinion is built around the erroneous presumption that a judge somehow becomes mentally incompetent as he passes his seventieth birthday. Then the majority retreats from this outrageous and astonishing proposition by attempting to soften its per curiam opinion with a parade of concurring opinions. What one is left with, as he ends this bewildering visit to the temple of justice, is a shell of reason that crumbles under the slightest weight of logic.
Whatever may have been the concept about age one hundred, fifty, or even eighteen years ago, it is a bright fact today that medical science, improved nutrition and better health have all combined to lengthen the span of salubrious living so that there is no presumption that in one’s seventies, eighties, or even nineties, one must fall victim to senility and decrepitude. But, even before the present age of added physical and mental longevity, history has taught us about scores of septuagenarians, octogenarians, and sometimes centenarians whose vigor did not diminish in their mature years. Three illustrious examples served in the United States Supreme Court. Justice Oliver Wendell Holmes served this nation into his ninety-first year. Justice Louis D. Brandéis did not retire until age eighty-three. And more recently Justice Hugo L. Black proved that the demanding work of a judge was no match for a man of eighty-five. The most highly acclaimed opinions of all three of these jurists were written in the post-seventy era of life. Even today, a majority of the justices serving on the Supreme Court of the United States are past seventy-six. Ronald Reagan, the President of the United States, remains vigorous at seventy-four, and of those in line to succeed him, the Speaker of the United States House of *185Representatives, Thomas P. O’Neill, Jr., is seventy-three and the President Pro Tempore of the United States Senate, Strom Thurmond, is eighty-three. The fact of the President’s overwhelming election triumph is conclusive evidence that the American people — and indeed the people of Ohio — no longer consider senior citizenship to be a condition of ineptitude calling for the wholesale shelving of this precious resource of humanity. Our country is increasingly becoming more aware of the unequaled value that the senior citizen can offer in the way of wisdom, experience, and acquired skill. We now know that old age is no more evidence per se of feeblemindedness than a beard is proof of sagacity and good judgment. But, in the face of this modern, enlightened attitude, the majority of this court has leveled a shameful attack on the mature citizens of our society — and particularly those whose backgrounds are filled with experience in the eminent vineyard of the law. It is as regrettable as it is incredible that at this late date in history, this court, by today’s decision, pins the loathsome badge of decrepitude and mental infirmity on the senior jurists of Ohio.
It is ironic, to say the least, that it took the experience and perceptiveness of Judge Keefe, a seasoned judge, to recognize the constitutional folly and manifest unfairness of this state’s age limit on judicial candidacies. Struggling against the flames of an age restriction that threatens to engulf and reduce to ashes his federal constitutional rights, Judge Keefe has called to this court for help. But instead of throwing him, and those like him, a fire extinguisher, the majority tosses him a gasoline canister that irretrievably ignites Judge Keefe’s cries for relief, and dooms his federal rights to the fires of arbitrary oblivion. As Justice Musmanno once wrote, “How all this can be done in this age of a supposedly more sensitive approach to [human] rights * * * is a riddle, wrapped in a mystery, enveloped in an enigma, and concealed in a labyrinth of inex-plicability.”
I dissent.
In Williams v. Rhodes, supra, it was further stated that “[b]oth of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. * * * Similarly, we have said with reference to the right to vote: ‘No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.’ ” Id. at 30-31.
This difference between judicial selection methods in Ohio and Pennsylvania is more important than it first appears to be. The philosophical debate between supporters of two competing candidates for the bench is almost always more intense than it is in retention elections where judges are measured only against their records. Hence, because the exercise of speech and exchange of ideas are more manifest in competitive elections, the interest in preserving First Amendment protections is much more compelling.