concurring, joined by BURKE, Chief Justice.
I concur with the result reached by the court that the 10% requirement for political party status set forth in AS 15.60.010(20) is unconstitutional under article I, section 5 of the Alaska Constitution. I agree that the state bears “the burden of showing that any restriction on ballot access is justified by compelling governmental interests.” My differences with portions of the court’s decision are as follows:
First, the primary statutory provision before the court in this aspect of the appeal is the definition of “political party” as “a group of organized voters which represents a political program and which nominated a candidate for governor who received at least 10 percent of the total vote cast at the preceding general election for governor.” AS 15.60.010(20). The definition speaks in terms of ten percent of the prior vote, not five percent, two percent, or one percent. In the significant areas of political speech and ballot access, I think it is important for us to restrict our holdings to the precise question before us. I therefore do not join in the court’s suggestion that a five percent requirement would pass constitutional muster because “[a] great majority of states place polling requirements of 5% or less on a party’s eligibility to nominate through a primary election.” A five percent cut off means different things in different states, and the constitutionality of any such restriction should be considered by this court after adoption by the legislature. Only at such a point would this court be capable of properly evaluating the asserted state interests within the context of the then current political processes in Alaska.
Second, the court having articulated the constitutional requirement that the state bears the burden of demonstrating that any restriction upon ballot access is justified by compelling state interests, I think it is necessary to apply this test with appropriate rigor. The state’s burden must be satisfied by a factual showing that conditions in Alaska present a real need for the restriction imposed. In the instant case, for example, the state recites that the ten percent requirement of AS 15.60.010(20) was designed to avoid problems of voter confusion, but presents no empirical evidence that such confusion is, or ever has been, a problem among Alaska voters. While one might agree that voter confusion could prove debilitating to the Alaska political process, in my view it is not sufficient for the state to assert theoretical possibilities, albeit undesirable ones, to justify incursions upon free speech rights protected by the Alaska Constitution. In my view there must be some demonstration that the danger of voter confusion is real in order for the state successfully to assert that it provides justification for ballot access restrictions.
I do not join in the court’s intimation that the state could meet its burden of justifying a lower percentage definition of political party merely by citing the existence of arithmetically similar statutes in the other jurisdictions. Other states are different geographically from Alaska, have different voter populations, are governed by their own unique constitutional guarantees and have statutory patterns of election laws that may vary substantially from that in Alaska. Unexplained numbers cannot be used to inform this court of its constitutional responsibilities.
The rights and privileges afforded to “political parties,” once defined, vary with the interrelationship of election statutes exist*1197ing in each state. In the present case, I would place particular reliance upon the interplay between AS 15.60.010(20), and AS 15.13.070(a), providing a limitation of $1,000 per year on contributions to a political campaign made by all entities except political parties. I agree with the court that the presence of this contribution ceiling, combined with its political party exception could have “a severe impact on fundamental political rights.” The existence of AS 15.13.070(a) significantly increases the constitutional “stakes” riding upon the definition of “political party” selected by the legislature. The state’s burden in justifying such a classification is correspondingly increased as it escalates the restrictions placed on rights of free speech.