concurring.
The Libertarian Party of Oregon and some of its potential candidates for elective office sued for a declaratory judgment invalidating the five percent threshold for a “minor political party” under Oregon’s election laws and for a mandatory injunction to certify the Libertarian Party as a “valid minor party.” ORS 248.008, 249.732.1 join the court’s opinion deciding that the Party is not entitled to either form of relief. I write only to emphasize that this decision does not establish *253the constitutional validity of Oregon’s entire scheme of classifying and regulating political organizations and placing nominees on the ballot.
After a century of experience with elections in which partisan candidates are nominated and identified as such on the “Australian” ballot, it may be little known that this was not the original voting system under the Oregon Constitution. In answer to questions sent to the litigants by this court, the Department of Justice provided a very helpful historical survey of the development before and after 1891, when the names of candidates were first printed on an official ballot for the voters’ choice, the so-called “Australian ballot.” In early practice as well as in theory, citizens could cast a vote for anyone of their choice, although political parties could and apparently did write the names of their candidates on ballots prepared and distributed for use by their supporters. An 1885 statute first regulated the process by requiring “tickets” used as ballots to be written or printed on paper obtained from the Secretary of State, on which each party could place a “vignette or heading, with an appropriate inscription” and the statement that it represented the “regular ticket of the party.” Or Laws 1885, pp 94-95, §§ 35-36. Any existing or new political group could do so, regardless of its size. Id. Six years later, the state took over the job of preparing a standardized ballot listing the names of the candidates and their party affiliations, which allowed each party to nominate one candidate for each public office to be filled at the election. Or Laws 1891, pp 8-33, §§ 1-72. Another 1891 statute permitted each party to elect delegates to its nominating convention by a primary election. Or Laws 1891, pp 4-7, §§ 1-15.
Obviously it is the use of an official government-prepared ballot that necessitates legal definition of the persons whose names are to be placed on that ballot, that is to say, whom the government includes among the recognized nominees for the office. Before 1891, that was not the government’s business. In theory, voters could elect anyone they chose. The person did not have to be a candidate. In theory, they could draft someone for an office who had no desire for it—still not an unknown event in Oregon’s proliferation of unpaid local offices. The constitution’s democratic theory was *254conceived from the perspective of the electors, not of candidates for election, although in practice, of course, it became a contest among candidates and their organized partisans.
These organizations, in turn, were private associations, entitled to the constitutional rights of private associations. The size of a party or other political association, though some might be much larger than others, would not be reflected in their official treatment until the government began qualifying candidates’ names for inclusion on the official ballot, and later for inclusion in the official Voters’ Pamphlet. This, for the first time, made the size of a “party” or other group “nominating” a “candidate” officially important in advance of the election.
Although the law preserved and still preserves the right of citizens to cast write-in votes for someone other than the persons listed on the ballot, plainly the listed candidates gain a practically unsurmountable advantage not only in convenience but in the apparent official recognition of their candidacy. The ballot shapes the voters’ choice in all but the most exceptional circumstances. The choice may further be influenced by the identification of a candidate as the nominee of an organized political party, rather than as an “independent” candidate, in those contests in which that information also appears on the ballot.
The extensive scheme of regulation that has been imposed on political parties has rested on this function of selecting and identifying candidates for those elective offices for which the laws regard partisan elections as appropriate. Political “affiliations of electors” become “minor political parties” when one of their candidates gains five percent of the vote cast for a representative in Congress, ORS 248.008(2), and if its candidates gain 20 percent of the votes cast in a presidential election, the “affiliation of electors” becomes a “major political party,” apparently whether the party wishes it or not. ORS 248.006. When a political party crosses that threshold, the laws substantially prescribe its organization, taking over the process by which the party may select its own officers and its nominees for public office by substituting government-administered primary elections and denying the party’s own officers any substantial role in the selection of its nominees. ORS 248.015 to 248.380, 249.016 to 249.205.
*255One might question how far such regulations of party organizations (and exclusion of some potential nominees by reason of party affiliation, ORS 249.046, 249.048) can be justified as preserving elections from “undue influence therein, from power, bribery, tumult and other improper conduct,” Oregon Constitution, Article II, section 8, notwithstanding constitutional guarantees of political rights, and how far they can go before they turn constitutionally privileged private associations into regulated instrumentalities of the state’s balloting functions.1 The Libertarian Party cannot and does not raise such issues; its complaint is that it is treated as a private political association when it wants statutory status as a “minor political party.” One consequence could be that its nominees would be identified as such on the ballot, like those of other parties, rather than as “independents,” a ballot designation implying lack of a nomination and support by a political party. Respondent’s memorandum to this court suggests, and the court’s opinion recognizes, that the statutes lend themselves to an interpretation that eliminates the difficulty. But the Party’s complaint does not encompass the identification of its candidates on the ballot. That possible premise for a claim to be “recognized” as a political party therefore is not before the court for decision.
I concur in the court’s decision and opinion.
See, e.g., Note, Are State-Imposed Political Party Primaries Constitutional? The Constitutional Ramifications of the 1986 LaRouche Primary Victories, 4 J L & Pol 343, 370-78 (1987).