(dissenting).
In my opinion, the board’s consistent practice of placing the Democratic Party in first position on the ballot and putting the Republican Party in second position is patently discriminatory and illegal.
The plaintiff’s evidence showing the discriminatory nature of this practice was, in my view, clearly sufficient to establish a prima facie case; the plaintiff’s proof was not substantially controverted. Indeed, both logic and common experience dictate a finding that “first is best” on a political ballot; it is so obvious that first position on an election ballot is preferential that the district court could have reached no other conclusion upon the evidence offered in this case. The fact that the Chicago board of election commissioners invariably put the Democratic Party first on the ballot is, in itself, strongly suggestive of the inherent advantage of being listed first.
I am unable to distinguish Weisberg v. Powell, 417 F.2d 388, 392 (7th Cir. 1969). There, as here, “it was adequately established that top position on the ballot is one of a number of factors which tend to affect the outcome of an election * * Political parties, no less than individuals, are entitled to be treated alike. To put one party automatically first on the ballot cannot qualify as a permissible classification.
In Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), it was determined that the discriminatory application of a state statute which was fair on its face constituted a deprivation of equal protection under the 14th Amendment. Said the Supreme Court at page 11, 64 S.Ct. at page 402:
“Where discrimination is sufficiently shown, the right to relief under the *826equal protection clause is not diminished by the fact that the discrimination relates to political rights.”
There is also applicable here the expression of the Supreme Court in Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), where the court said:
“All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote.”
An ostensibly impartial election board may not favor one party over another in ballot position. There are many feasible alternatives which would eliminate discrimination; for example, ballot positions could be determined by lot or by rotation.
In my opinion, the practice regularly followed by the defendants contains “a built-in bias tending to favor particular political interests”. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (decided June 7, 1971).
Therefore, I respectfully dissent.