dissenting.
With the greatest respect for the en banc decision, I feel compelled to dissent. Seldom has this Court been presented with issues more complex and important than the ones before us today. In his usual scholarly fashion, Judge Goldberg has astutely illustrated that the law which we are to apply is in a state of flux, and that reconciling the plethora of cases in this field is near to impossible. For that reason alone, it is difficult for me to quarrel with whether or not the tests which he proposes should govern the issues before us. A review of the relevant case law has brought to my attention no better way to handle these issues.
I interpret the Court’s First Amendment test to be that state restriction on political activities of public employees (where such activities contain substantial nonspeech elements) is constitutionally permissible if the state has a compelling interest, and the challenged restriction is reasonably necessary to further that compelling interest. Majority opinion p. 299 supra. The majority then proceeds to adopt the same standard of review for its equal protection analysis. Majority opinion p. 303 supra.
My problem with this case revolves around the equal protection issues — and my concern is not with the test which the majority adopts, but rather in the application of this test. Judge Goldberg correctly points out that the equal protection problem in the present case is that judges running for election to non-judicial office are singled out. The state makes two classifications. First, any judge may run for judicial office without resigning his seat on the bench. A classification is thus established between judges who wish to run for judicial office and judges who wish to run for non-judicial office. Moreover, anyone other than a judge may run for non-judicial office without resigning the office he holds at the time he announced his candidacy and quali*309fies.1 A second classification is thus established between judges and all other office holders. Therefore, if we apply the test proposed by the majority, the issue to be determined is whether these classifications are reasonably necessary to the admitted compelling interest Louisiana has in maintaining the integrity of its judiciary.
These classifications are troublesome. There appears to me to exist no legitimate reason to distinguish between judges who run for judicial office and judges who run for non-judicial office. Judge Cassibry in his findings of facts, 438 F.Supp. 599, stated that:
No differences have been shown to exist between the conduct of a political campaign for a judicial office and the conduct of a political campaign for a nonjudicial office, and the evidence in the record supports the contention that such campaigns are conducted in the same ways.
What Judge Cassibry’s finding means is that since judicial and non-judicial elections are conducted in the same manner, a judge who runs for any other judicial office is subjected» to the same potential corrupting influences as would be a judge who runs for any non-judicial office. Why then is it reasonably necessary to treat differently judges who are candidates for non-judicial office? How could members of the legal profession, political parties, vested interest groups and all others interested in elected positions fail to align themselves with one candidate or another in a contest for a judicial office? It is not difficult to imagine a situation with two or more judges seeking higher positions while serving in a judicial capacity. Surely at least one will lose. The record shows no basis for any less nor any more concern based upon such classification. And of course in any such race there could well be one or more non-judicial office holders likewise appealing to the same “power-groups.” Certainly if judicial integrity is our concern, there is no legitimate basis to exclude judges who run for judicial office.
While we are not dealing with a judge running for a judicial office, the classification issue is squarely before us. What justification is there for the total lack of equal concern by the Louisiana legislature when non-judicial office holders seek non-judicial offices? The majority argues most persuasively the need for “honest judges,” Is there less need for “honest mayors”? Is there less need for “honest governors”? The list is endless and the answer obvious. The legal question presented is not so easily answered.
The majority rests its opinion upon a state concern and reasonably necessary restrictions — not the unique aspects of judicial elections for indeed the experienced trial judge found there are none. I would agree that judicial responsibilities are unique and suggest they are also totally incompatible with the elective process. Certainly the federal appointive process and widespread state use of “merit retention” programs2 recognize this feature of the third branch. But Louisiana has not removed its judicial candidates from the political arena. It could be argued the state has rather tied one hand behind a judge’s back should he decide to run for any office other than judicial. This is hardly demonstrative of a legitimate concern for “good government”. Nor, in my opinion, is it a classification consistent with the equal protection clause of the Fourteenth Amendment.
Resign to run laws do have merit and can be upheld.3 At least one state, Florida, has *310passed muster by showing the same concern discussed by the majority toward all office holders — not merely judges. While that may not be the only possible classification able to withstand attack, it is extremely impressive by its equal treatment.
Recognizing this case as a difficult one and my voice as a lonely one, I, nevertheless, feel obliged to dissent. Classifications have been set up by the Louisiana statute and Canon which make little sense if the state of Louisiana is sincere about preserving the integrity of its judiciary. If, however, the state is not sincere in this belief, then a reevaluation of the First Amendment claim would be warranted since restrictions on First Amendment rights cannot be justified by a state interest that is less than compelling. Finding the present classifications violative of the Fourteenth Amendment, I would affirm the action of the trial court.4
. The Governor of Louisiana could hypothetically run for any other elected position while holding office.
. States differ in whether judges are first appointed and then run on their record (Missouri plan), to those having nominating commissions (such as those instigated by President Carter), to those with screening panels which select a list of qualified candidates from which the Governor makes his appointments (Florida).
. A three judge panel has upheld those portions of Florida’s resign to run law which are relevant to this case. See Stack v. Adams, 315 F.Supp. 1295 (D.Fla.1970); Deeb v. Adams, 315 F.Supp. 1299 (D.Fla.1970). It is interesting to note, however, that in Stack Florida law was held to be unconstitutional as applied to a pub-*310lie official who desired to run for office of United States Representative. The court reasoned that requiring a candidate for Congress to resign from office as a condition precedent to running for that position created an additional qualification not provided by the Constitution for election to Congress. The court held that the qualifications section of the Constitution was exclusive, and that a state could neither add to nor take away from it. While it has not been raised by any of the parties before this Court, one wonders whether the Louisiana statute is not vulnerable to a similar attack. Since the plaintiff is not running for a federal office, it is doubtful that he is the proper party to bring such an attack.
. I concur in those portions of the Court’s en banc opinion which deal with the questions of jurisdiction and mootness.