(dissenting). These are two actions commenced in this court under the original jurisdiction thereof to. require the names of relators to be placed in the Democratic party column upon the official ballot at the ensuing election, notwithstanding the requirements of ch. 477, Laws of 1909, alleged to be unconstitutional. One of the actions is for a writ of mandamus against the secretary of state, the other against the county clerk and the board of canvassers of Milwaukee county. They may be considered together.
I readily agree with the majority of the court that — ■
“The declaration of rights contained in sec. 1, art. I, of the constitution is a prohibition, by necessary implication, of legislation inconsistent therewith.”
“The right of suffrage includes the right of voters to separate into groups according to their political beliefs respecting governmental policies, and the right of every group to organize and have all the machinery in that regard not reasonably prohibited by law for making the organization effective as regards declaring the policy of its members, and vitalizing such policies by electing officers in harmony therewith to legislate and execute law to that end.”
*34“Every legislative interference with freedom on the part of voters to form political organizations and to act under their chosen party names to accomplish the purposes of the organizations, is at the same time an interference with the right to vote, so the limit of [legislative] power as to the one is substantially the limit of [such] power as to the other.”
“The office of regulation of the right to vote and the rights incident thereto being to conserve and promote efficiency, any so-called regulation which goes clearly beyond the boundaries of conservation into the field of impairment or destruction, is unreasonable and inhibited by the constitutional guaranty of the rights of suffrage and [the] inhibition of interference with inherent rights.”
If the decision of the court were in conformity with these declamatory statements there would be no occasion for this dissent. The actual disposition of the case, however, tends to subvert rather than protect these rights. I am not one of those who believe that the perpetuity or solidarity of any particular political party is essential to free or beneficent government. At the same time a political organization in which electors of common political belief mass themselves in favor of or against some man or measure is in a populous republic necessary to the full and effective exercise of political power by the people. In this sense “party” is desirable and necessary. It is only in the crudest form of representative republican gov-eminent that the electors vote merely for men. It is only the most ignorant and undesirable vote that is given merely from motives of personal loyalty to a chief. The way of progress is in the direction of voting for or against measures rather than men. In the great enlightened countries of the world this is accomplished by the institution of a responsible ministry representing the political party in power. This ministry proposes legislation, and the legislators in voting thereon pass, quite freely from one party to the other according to their views on the proposed measure. If the differences are serious and the party in power is defeated the parliament is dissolved and the parties go to their constituents upon the merits of the proposed law. This law is thoroughly discussed by the candi*35■dates, in tbe press, and by and witb tbe electors, and votes for these candidates are given or withheld on the merits or demerits of the proposed law. This presents a sort of referendum which can only take place in respect of measures serious and far-reaching enough to divide the party in power, and is the outgrowth of experience and admirably adapted to that purpose. Our American system is different. But the same tendency to vote for measures or principles, although somewhat less effective, is apparent here in the construction and promulgation of platforms by the political parties. When platform declarations came to be considered less binding, this tendency manifested itself in the doubtful expedient of the executive assuming the role of premier of his party and negotiating, inducing, and compelling legislation by an exercise of executive power conferred upon him for an entirely different purpose. It also manifests itself in the great and widespread •demand for the referendum and recall. This incident of effective exercise of the right of suffrage consists of combination among voters and the selection of candidates pledged to a particular governmental policy or measure. To deprive some part or fraction of the electorate of this power is to encroach upon and seriously impair and even to destroy the voter’s right to make his vote effective by such association with others of the same political belief in favor of those men whose adherence or loyalty to the measures in question is known or stated in party platforms or otherwise. To allow one party of the electors to make their votes thus effective and deny this right to another because the latter party is small is to create a condition of political inequality. This condition cannot be lawfully created except from necessity and in cases where the political group is so small as to be negligible. The power of the legislature to adopt reasonable regulation of the exercise of the right of suffrage is not questioned, but:
“All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their purpose directly or indirectly to deny or abridge the eon-*36stitutional right of citizens to yote, or unnecessarily to impede its exercise; if they do, they must be declared void.” Cooley, Const. Lim. (7th ed.) 907, 908.
Does the legislation in question unnecessarily impair tbe exercise of tbe elective franchise on tbe part of any voter? In order to examine this question we cannot confine ourselves solely to tbe act of 1909, because tbe effect of that statute as impairing tbe efficient exercise of the right to vote is accentuated by other statutory requirements.
Eirst, in order that a candidate for office have bis name placed on tbe official ballot in tbe nominating or primary election be must file with tbe secretary of state or county clerk,, as tbe case may be, a nomination paper in a prescribed form and signed witbin a stated time; if be is a candidate for a state office, by at least one per cent, of tbe voters of tbe party of sucb candidate in at least each of six counties in tbe state and in tbe aggregate not less tban one per cent, nor more than ten per cent, of tbe total vote of bis party in tbe state; if for a representative in Congress, by at least two per cent, of tbe vot'ers of bis party in each of at least one balf tbe counties of tbe Congressional district and in tbe aggregate not less tban two per cent, nor more tban ten per cent, of tbe total vote of bis party in sucb district; if for an office representing less tban a Congressional district in area or a county office, by at least three per cent, of tbe party vote in at least one sixth of the election precincts of sucb district and in tbe aggregate not less than three per cent, nor more tban ten per cent, of tbe total vote of bis party in sucb district. These percentages are to be computed upon tbe party vote for tbe presidential elector receiving tbe largest vote at tbe last preceding presidential election. Tbe nomination paper is required to contain a declaration on tbe part of each signer that be intends to support tbe candidate named therein. After these nomination papers are filed, notice of tbe primary or nominating election is given and an official ballot is printed at public expense for use in *37such primary election, with tbe names of all candidates for whom party nomination papers have been filed printed therein. No other ballot is permitted. The form of ballot is provided for by statute, and although spoken of in the statutes .•as the “ballot,” it consists of several tickets, one for each political party with the name of that party at the head. These are all fastened together. The words of this statute should, perhaps, be here quoted:
“At all primaries there shall be an Australian ballot made mp of the several party tickets herein provided for, all of which shall be securely fastened together at the top and folded, provided there shall be as many separate tickets as there are parties entitled to participate in said primary election.” 'Subd. 3, sec. 11 — 12, Stats. (Supp. 1906: Laws of 1903, •ch. 451).
There is no ticket for a new organization which cast no votes in the county or precinct for presidential electors at the last presidential election, neither is there any ticket for an existing party which had no presidential nominee and which has polled no such vote at the last presidential election, or which had such candidate but polled no vote for presidential electora in the county or district. The elector is handed this ballot consisting of several tickets, and he selects one of the party for whose nominees he intends to vote and returns the others to the inspectors. The elector must vote this ticket or not at all, •except that he may write in a name instead of the printed name; but if he should in doing so insert the name of one who is a candidate for the same office on another party ticket, his vote would be counted for such person only as a nominee of the party on whose ticket it was written. Superadded to these stringent requirements is ch. 477, Laws of 1909, which provides:
“1. If all candidates for nomination for any one office voted for on any party ballot shall receive in the aggregate twenty per cent, or more of the vote cast for nominee of such party for governor at the last general election, the person re*38ceiving tbe greatest number of votes at sucb primary election as tbe candidate of snob party for sucb office, shall be tbe candidate of that party for sucb office, and bis name as sucb candidate shall be placed on tbe official ballot at tbe following, election.” Subd. 1, sec. 11 — 18, Stats.
“2. If all tbe candidates for nomination for any one office voted for on any party ballot shall receive in the aggregate less than twenty per cent, o f such votes so cast at such last general election, no person shall be deemed to be tbe party nominee for sucb office, but tbe person receiving tbe greatest number of votes at sucb primary as tbe candidate of sucb party for tbe office shall be deemed an independent candidate for' sucb office, and bis name shall be placed on tbe official ballot in tbe column of individual nominations and be shall be denominated in sucb column as ‘independent.’ ” Subd. 2,. sec. ll — 18, Stats.
Tbe ballot last referred to in subd. 2 above is tbe official ballot required to be used at tbe general election wbicb follows tbe primary or nominating election. Individual nominations may be made by nomination papers signed and filed by a prescribed percentage of tbe electors, but tbis is aside from tbe primary election, and. no political party as a party can make sucb individual nominations. Tbe form of tbe official ballot to be used at tbe ensuing general election is also-provided for, and no other can be used. Tbis contains as-many party columns as there are political parties receiving tbe requisite number of votes at the nominating or primary election and also a column for independent candidates. The-elector may at tbe general election vote tbe whole party ticket by making one cross at tbe bead of tbe column, or be may-make a cross or mark after sucb names on tbe ticket as he wishes to vote for, and be may in tbis way vote for part of the candidates of one political party and part of another. But' no pasters are allowed on tbe ticket or counted as votes. The-names of persons nominated otherwise than at tbe primary-election are to be placed in one or more columns designated “independent.” But these must necessarily be voted for sep*39arately. They represent on the ticket no common principle or policy: one may be a socialist, one a prohibitionist, one a mere independent office seeker, and so on.
Before considering in detail the defects of the statute in question (ch. 417, Laws of 1909), it is well to consider the foundation precedents and the reasons given for supporting the constitutionality of the laws first above referred to requiring the percentage of the vote there stated in order to obtain a place upon the official ballot.
In DeWalt v. Bartley, 146 Pa. St. 529, 24 Atl. 185, 15 L. R. A. 771, a requirement of three per cent, of the entire party vote cast in order to entitle the nominees of that party to a place on the official ballot was upheld. It was said:
“The use of official ballots renders it absolutely necessary to make some regulations in regard to nominations, in order to ascertain what names shall be printed on the ballots. ... It follows, if an official ballot is to be used, nominations must be regulated in some way; otherwise the scheme would be impracticable, and the official ballot become the size of a. blanket.”
In Ransom v. Black, 54 N. J. Law, 446, 24 Atl. 489, 1021, 16 L. R. A. 769, justifying a similar requirement of five per centum, it was said :
“Now, the plan of providing official ballots, which plan is the keystone of the secret ballot system, involves necessarily some limitation upon the number of party tickets and the number of party candidates. ... If it was left in the power of each voter, or each coterie of three voters, to adopt a party name and demand that an official ballot should be printed at public expense, and distributed to each voter at the polls, the polls would probably be littered with ballots ‘thick as autumnal leaves that strew the brooks in Vallombrosa.’ Great expense, labor, and inconvenience would result, without any ap>-preciable benefit to the voter or to society. These regulations may not be the wisest that could have been adopted, still they are regulations which do not seriously impair the right of any citizen to vote. They are intended to restrict the number of *40party tickets within reasonable limits, while, at the same time, permitting any body of citizens whose number is sufficient to give importance to a concerted political movement to organize as a party.”
In State ex rel. Plummer v. Poston, 58 Ohio St. 620, 51 N. E. 150, 42 L. R. A. 237, it was said of a similar requirement:
“Some restriction upon the right to have nominations printed upon the blanket ballot is necessary to render it practicable. In view of the small ratio of voters required to make a certified nomination, aid in view of the right to have nominations made by papers or petitions signed for that purpose, and of the right conferi’ed by the act upon every voter to supply the names of all persons for whom he may desire to vote, we cannot say that the exercise of the right is unreasonably impeded.” From this one of the ablest members of the Ohio bench dissented.
See, also, State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482, following the foregoing cases.
In State ex rel. Webber v. Felton, 77 Ohio St. 554, 84 N. E. 85, where the fraction required was ten per cent, and exceeded largely the percentage required in any of the preceding cases, the court said:
“One man cannot constitute a political party; and the abuses that it was intended to prevent depend largely upon the number of those who constitute the party, and this makes it perfectly proper for the legislature to limit the application of the law according to number. The Australian ballot laws limit the party tickets that may appear on the printed ballot, by a percentage of the vote cast at a previous election, and in nearly every case in which objection has been made on that ground such laws and legislation have been upheld.”
This was said in a suit to enjoin the state supervisor and inspector of elections and others from incurring any expense in the preparation for and holding of a primary election and from holding such primary election. In all the statutes considered in the foregoing cases there are also, I think, alternative provisions for placing a party candidate on the official *41ballot. In tbe following cases it was beld that a statute which prohibited the election of delegates to the convention of a political party representing less than a designated percentage of the vote cast at the last election was unconstitutional and void •as taking away the right of self-control and self-preservation from a party; that there was involved not a question of reasonableness of the regulation but of the power of the legislature to pass any such law. The law here held invalid required three per cent, of the votes cast by the party at the last election! This power was denied. Britton v. Board of Elec. Comm’rs, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115; Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. R. A. 196; Murphy v. Curry, 137 Cal. 479, 70 Pac. 461.
These pioneer cases-are cited to show for what reason such statutes were upheld where there was an official ballot and under what circumstances and for what reasons such statutes were held invalid. Under the statutes of this state first above referred to the candidate of a political party must obtain a stated percentage of the voters of his party at the last presidential election in order to be placed upon the official primary ballot. When the legislature has enacted this requirement and, pursuant thereto, the candidate has obtained the required percentage and qualified himself for a place on the official primary ballot, can the candidate be required to procure an additional and increased percentage thereafter to entitle this candidate to a place on the official election ballot ? The reasons given for sustaining similar regulatory statutes in the •above cited cases would seem to answer this in the negative. The legislature, having acted on the subject and prescribed a regulation to which the candidate must conform, has exhausted its police power of regulation with reference to percentages of the party vote if this power is grounded on the considerations' stated in the foregoing precedents. It has fixed what it has considered a reasonable number in order to ■entitle the candidate to have his name on the official ballot. *42Certainly there must be some ground upon which the requirement of a subsequent and increased percentage may be supported ; certainly the reason in support thereof stated in the foregoing cases no longer obtains. The official ballot for the general election cannot thus be loaded down with names or parties, because only one candidate of each party for one office can obtain a plurality of votes at the primary, and because no-party can have a place on the official general election ballot which is not represented on the primary election ballot. Only three grounds for upholding this statute in question as a valid, police regulation are suggested: (1) that the legislature may within limits prescribe the number of votes necessary to entitle a person or party to a place on an official ballot; (2) that the law is or may have been intended for the benefit of the party, because encouraging its members to attend and take-part in the nominating election; (3) that the law is intended to prevent the members of one political party dictating the-nominations of another. If we grant the first proposition the-law will be found invalid, because, although it has been held that some small percentage of voters may be required as a condition of printing the name of a candidate on the official ballot, this is placed on the ground that such requirement is necessary to make the ballot effective and prevent it being loaded down with a multitude of names placed upon it by small negligible groups of voters. But the official election ballot cannot be loaded down in this way with party names, because, as. said before, only the one candidate on the primary official-ballot who has received the plurality of votes can be placed upon the official election ballot. The regulation must be-based on some necessity therefor. This first reason for supporting the act therefore fails. The statute, so far as the first-reason for its support is concerned, becomes a mere arbitrary-requirement based on no necessity for such regulation, and because it also impinges upon and impairs constitutional rights it is invalid. The statutes in question prior to the en~ *43actment of cb. 477, Laws of 1909, bad already exercised this police regulation witb respect to tbe primary election ballot, and tbe snperadded requirement witb respect to tbe enlarged percentage to be obtained at tbe primary in order to be entitled to a place on tbe general election ballot is so useless for tbe purpose stated and so large as to be a material impairment of tbe effective exercise of tbe right of suffrage. If tbe first required percentage necessary to entitle one to a place on tbe primary official ballot is reasonable, tbe superadded requirement of twenty per cent, is unreasonable.
Witb reference to tbe second ground of support, it requires an extraordinary stretch of credulity to arrive at tbe conclusion that this benevolent purpose towards its adversary actuated tbe dominant party in tbe passage of tbe law. But it is unnecessary to speculate On this, because the second consideration is no valid ground for tbe exercise of tbe police power. Tbe welfare of party and whether or not a voter will continue to act in that party is for tbe voter to decide. If development or resuscitation of tbe party be once recognized as a proper basis for police regulation, that will from thenceforth be tbe principal care of tbe legislature. Therefore tbe statute cannot-be upheld on this ground, granting, as we must, that it does to a considerable extent impair tbe effective exercise of tbe right to vote.
Tbe third ground of support is insufficient because tbe act has only a remote and indirect tendency to accomplish this purpose and because it seeks to accomplish this, if at all, by impairing tbe suffrage rights of those who have not attempted to vote in tbe party of tbe opposition as a punishment for those who did so vote or attempt to vote. If this be tbe ground of support, tbe statute is for this reason an unconstitutional restriction of their right of suffrage. Camp v. Rogers, 44 Conn. 291. Those who go to tbe primary and vote their party ticket have been guilty of no negligence or breach of duty, and their right thereafter to vote tbe same party ticket cannot be *44limited on account of the negligence or default of others. State ex rel. Wood v. Baker, 38 Wis. 71; Dells v. Kennedy, 49 Wis. 555, 6 N, W. 246, 381. I also think that, even if we •■assume the authority of the legislature, the required percentage is unreasonably large and the statute in question invalid on that ground. According to the Blue Book the total Democratic vote for governor at the general election in 1904 was 176,301. In 1906, two years later, it was 103,114, a falling ■off of more than forty per cent. At the general election of November, 1908, it was 165,977, an increase of sixty per cent, ■over the vote of 1906. The fluctuations in the vote at the primary election are still more marked. The ratio of the primary vote to the general election vote is subject to still greater changes. Where the minority party has small hope of prevailing in the coming election there will always be a light vote at the nominating election. The law must recognize that thousands are concerned with the problem of existence and have many cares more engrossing than those of politics. To require a minority political party to cast at the primary election twenty per cent, of what was perhaps an unusually large vote cast for the gubernatorial candidate with the aid of independents or by reason of fusion with some other minority party or parties, must in the nature of things often exclude that party thereafter from any place on the official ballot. Where the law has this tendency and there is no imperative reason for the existence of the law, no such encroachment upon the right of suffrage should be tolerated. The only case which I find at all sustaining a similar law is State ex rel. Montgomery v. Anderson (N. Dak.) 118 N. W. 22, decided by the supreme court of North Dakota October 2, 1908. The reasons given for this decision do not commend themselves. The case seems to be decided upon the old fallacy that there is some point at which the reasonableness of a number, of a time, of an amount, may be apparent to all, and another remote point at which the unreasonableness thereof may be apparent to all, *45and men may differ between these extremes; therefore a tribunal charged with the ultimate duty of determining the reasonableness or unreasonableness of the number, time, or amount, should abdicate its function and refuse to discharge this duty out of regard to a determination already made which it is the duty of that tribunal to review. The decision plainly misapplied the precedents it professed to follow and took a fundamentally erroneous view of police regulation of constitutional rights. The dissenting opinion of Justice Eisk in the case1 cited contains the better reason, and the supreme court of bTorth Dakota, while the instant case was on argument, overruled the decision mentioned, and as we understand it adopted the views against the constitutionality of the law set forth in the dissenting opinion of Justice Eisk. I thus find the precedent discredited in the place of its origin in the most effective manner, and in its place a precedent advisory to us, it is true, but strong against the constitutionality of the act under consideration. "Where a court overrules its own decision on a question of constitutional law it must be strongly persuaded of the correctness of the overruling decision.
.With these considerations applying to the law as a whole we come down to an examination of the act in detail. This act of 1909 excludes from the official ballot for the general election as party candidates all persons in all cases where all the candidates on the official primary ballot for any one office received less than twenty per cent, “of the vote cast for nominee of such party for governor at the last general election.” If the statute is to be taken literally, it requires each candidate to receive at the primary twenty per cent, of the total party vote for governor at the last preceding election. Because there are II counties and 100 assembly districts in this state, few of the counties and probably no assembly district could upon a full poll muster twenty per cent, of such vote. Taken. literally, then, the statute is void and unconstitutional on its face. Assuming that the legislature could not have intended *46this, we are to search for its intention. Two possible meanings may be found. One that it was intended that the requirement of twenty per cent, should apply only to candidates for state offices; the other that the words, “of the vote of the state or of the county or district in which such person is a candidate,” he read into the law following the twenty per cent, requirement so as to qualify or limit the generality of this requirement. But this court has heretofore refused to interpolate words into a statute in order to uphold its constitutionality. Rogers-Ruger Co. v. Murray, 115 Wis. 267, 91 N. W. 657. In Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, where the New York tenement house law was by some legislative oversight so enacted in this state as to apply to all parts •of the state, urban and rural, the law was declared void as an unreasonable exercise of the police power interfering with property rights. A mere interpolation limiting the state-wide •effect of this law would have saved it. The Trade-mark Cases, 100 U. S. 82, 99, seem to be directly in point here. See, also, Johnson v. Barham, 99 Va. 305, 38 S. E. 136; Slingluff v. Weaver, 66 Ohio St. 621, 64 N. E. 574; Dewey v. U. S. 178 U. S. 510, 20 Sup. Ct. 981.
I think it much moré reasonable to construe this statute as .applying only to state officers, and this construction would require no interpolation of words. This construction would grant the writ to some of the relators. But having got into the statute the saving words by a process euphemistically called construction, the statute is still unconstitutional. Because in the first place the percentage required is based not on the party vote but on the vote for one candidate. It often occurs that the best service which a voter can render to his party and to the state is to vote against a nominee of his own party. When the party offers as a candidate for governor a man who is notoriously unfit or corrupt, or who has bought his nomination with money, it is the duty as well as the right of all members of that party to vote against this candidate. This is a *47right which cannot he impaired bj legislation. Any law which impairs this right is unreasonable and invalid. So is this law which forbids the voters of a county or district so to •do on pain of loss of party place on the official ballot at the nest ensuing election. There can be no twenty per cent, of zero. So if, instead of merely failing to vote for such unworthy candidate of their own party for governor, the voters in like case in a particular county or district cast a unanimous vote for his worthy opponent, their right to do this is likewise impaired because they can only, do it at a loss of their party place on the official ballot at the next election. So in a case where for the foregoing reason and by reason of the great popularity of the worthy candidate of a minority party this candidate receives large accessions to his small party vote in a county or district, which accessions are from other parties or independent voters. In the latter case at the next succeeding primary this minority party cannot muster in the county or district twenty per cent, of the former abnormally large vote cast for its candidate for governor because such large vote was not composed óf a strict party vote. Having been thus eliminated from the official ballot for one year there is no practical way provided for in our statutes to be replaced on the official ballot. Thus the law so construed interferes with the right to exercise the elective franchise and in effect penalizes its lawful and proper exercise and consequently is invalid. It is no •answer to this to say that the office of governor is fairly representative of the party vote or that the instances are rare in which an undesirable candidate for that office will be nominated or an extremely popular candidate of the minority party for that office will be able to draw so largely from other parties. This begs the whole question. The act cannot be constitutional in some instances and unconstitutional in other related instances. Basing the percentage upon the party vote for one candidate does tend to constrain the voter to cast his ballot for that candidate regardless of his personal merits, { *48even though such candidate be unworthy or undesirable, and this interferes with his free choice and is therefore invalid. The law with this' interpolation would also be subject to the-former objections herein noted against the law as a whole. Indeed, with the interpolated words the effect of the law in impairing the suffrage rights of the nineteen per cent, who-have attended the primary and voted because of the delinquency or default of those who did not attend or those who,, having attended, voted some other party ticket, would be greatly accentuated because limiting it to districts would cause it to lack the corrective influence to which it might be subject from the contrary vote of other districts when the vote-of the whole state is considered.
Again, with the words above quoted, whether their addition be matter of construction or interpolation, the act permits the elector to vote a party ticket for member of the state assembly in all cases where within this assembly district there was cast at the primary twenty per cent, of the vote for that party candidate for governor at the last preceding gubernatorial' election. It however denies to this same voter the right at the same election to vote a party ticket for representatives in Congress where at the same primary there was cast in the-Congressional district less than twenty per cent, of the same-party vote in that Congressional district for governor at the-last preceding gubernatorial election. The voter in that case-can have no party representative in Congress. Although he has the right to favor and vote to advance the principles or measures of one party in state affairs and those of a different party in federal affairs, he is barred from any participation in the selection of a candidate for Congress because he conscientiously prefers the policy or attitude of the other party in state-affaii’S and desires to act with it. Here he must yield up one right or the other, and he cannot lawfully be compelled to-yield either at the legislative whim. But in case the voter desires to associate himself with a political party in both state *49and national affairs lie may find that he is entitled to vote a party ticket for member of assembly, bnt that there can he no party nominee for Congress, so that he must lose his vote for Congressman or else vote for an independent candidate, or for the candidate of some opposition party in whose principles he disbelieves. Representatives in Congress are to he elected by the people of the several states by electors possessing the qualifications which entitle them to vote for the most numerous branch of the state legislature. Const. U. St art. I, sec. 2. Construing this, it is said in Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152: “It is not true, therefore, that electors for members of Congress owe their right to vote to the state law in any sense which makes the exercise of the right to depend exclusively on the law of the state.” See, also, Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783; Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17. Within the meaning of the federal constitution as interpreted in these decisions, I think the voter qualified by state law to vote for member of assembly on a party ticket and thereby for party principles or measures cannot be denied by state statute, directly or indirectly, contingently or absolutely, the right to cast an equally effective ballot for his representative in Congress or the right to participate as a member of a political group or party in the selection of a candidate for Congress. Again, the law as thus interpolated or interpreted is destructive of the right to form and maintain political parties and thus indirectly or in effect vote for principles or measures. No political minority party could long exist where, by the effect of a statute, county after county and district after district would inevitably be left without party organization or party representatives. The party could not long survive the destruction of its local units. That this is the necessary effect of the statute in question cannot be doubted. Its enforcement must result in a progressive but certain destruction of a minority political party and leave the voter no choice but to vote for an irresponsible independent *50candidate or to join the majority party and create a disturbance in its ranks. We have searched the statute laws in vain for any provision whereby a political party, having been once refused a party place for its gubernatorial candidate on the official general election ballot, can ever appear again as a party at an election. The statute expressly provides that all candidates shall be nominated either by a primary election or by nomination papers signed and filed. A nomination paper may be filed signed by a stated number of voters.
“In using woi’ds to express the party or principles represented by a candidate nominated by a nomination paper, if the same name is used as pertains to some political party making a nomination by convention, the words ‘nomination paper* shall be used as a part of such designation.” Sec. 30, Stats. (1898).
At the general election following the nominations no ballot except the official ballot can be voted. There the regular party tickets nominated at the primary election are to be printed each in a separate column. This last statute as it now stands includes the words “nominated by conventions,” but these words are rendered nugatory by the later statute (ch. 666, Laws of 1907), which provides (sec. 11 — 2, Stats.) that all candidates must be nominated either at the primary or by nomination papers. The statute also provides: “The names of persons nominated by paper nominations shall be placed in' the one or more columns [of the official ballot] designated independent.” There is no way to ascertain how many voters of any party voted for either one of these independent candidates, consequently in such case the statute relative to percentages could not thereafter be complied with. Construing the statute in question to apply to candidates for county and district offices, the party voters would lose their right to vote a party ticket at one election, but about two years thereafter, at the primary election folkvwing the next gubernatorial vote, appear at the primary and endeavor to poll twenty per cent. *51of the last party gubernatorial vote in that district or county. But when the gubernatorial party candidate, by operation of this statute, is once eliminated from the official ballot there is no way in which the party can ever get back on the official ballot. These are extraordinary difficulties put in the way of the exercise of the elective franchise, they rest upon no legitimate excuse or occasion for the exercise of the police power, they impair inherent rights recognized and upheld by our state constitution, and they are, I believe, unreasonable and unconstitutional.
The following opinion was filed December 14, 1910: