specially concurring:
The conclusion reached in the foregoing opinion as to the unconstitutionality of the Primary law necessarily follows from what was said in People v. Board of Election Comrs. 221 Ill. 9, and Rouse v. Thompson, 228 id. 522. This separate opinion is written because of my belief that the court should have set forth, in definite and explicit terms, its views concerning nominations, under a direct primary, of candidates for representatives in the General Assembly. The law on the question as laid down in the Rouse case seems to have been misunderstood by.the legislature in drafting the act here under consideration. It was there stated that the senatorial committee, by resolution or otherwise, might “suggest to the voters of their respective parties the number of candidates that ought to be selected by their party at the primary election, for representative in the General Assembly, and to have such suggestión placed in some form upon the official primary ballot for the guidance of the individual voter.” Manifestly, from that decision the committee could Only advise the voters and trust to their party loyalty to follow that advice. If three or more persons received votes for representative in the General Assembly in a given senatorial district, whether the names of such persons were printed on the primary ballot or were written in by the voters themselves, then the three persons receiving the highest number of votes must have had their names printed on the official election ballot, regardless of any resolution or suggestion of the senatorial committee advising that a less number be nominated. This, it seems to me, is the necessary conclusion to be drawn from the Rouse case. That might result in the nomination of three candidates for each party in many, if not all, of the senatorial districts. The only way in which minority representation can be made effective, under that decision, by a direct primary law, will be for the voters of the minority party in a given senatorial district to cumulate their ballots on election day for one or two candidates.
The opinion in this case states: “If each political party were required to nominate three candidates it would render nugatory the constitutional provision for minority representation.” From this language, taken in connection with all that is said in the opinion on the question of legislative nominations, it might be fairly argued that the court here intended to overrule, in effect, the Rouse case on this subject. But the question is left more or less obscure. No attempt is made in this opinion to point out particularly just how any direct primary law can be made effective as to nominations for representatives in the General Assembly. My own views touching the effect of the constitutional provisions as to such nominations are set forth at some length in the dissenting opinion in the Rouse case, but it was decided by the court in that case that the section of the constitution referring to minority representation applied not. only to the election of candidates for representatives in the General Assembly, but to their nomination under direct primaries. It is now the settled law in this State that a primary is an election as to all candidates to be nominated thereunder. This being so, a qualified voter under any direct primary law is entitled to vote at the primary for three candidates for representatives in the General Assembly,— one vote for each,—or to cumulate his three votes on one or two candidates, the same as at an election. After all the legislation and litigation on this subject, the legislative branch of the government should have been told, clearly and explicitly, by the opinion in this case, just what conditions must be met in order to draft a constitutional law governing- legislative nominations by direct primary. If such a law cannot be drafted without rendering “nugatory the constitutional provisions for minority representation,” as intimated in the majority opinion in this case, then, in my judgment, the court should have stated such fact in this opinion in language that could not be misunderstood.