concurring and concurring in the result.
I concur frilly with Parts I, II, IV, V, VI, and VII of the court’s opinion. I also agree with the result reached by the majority in Part III. However, for the following reasons, I would hold that rather than infringing on a non-incumbent candidate’s right to free speech, and in addition to violating the speech and debate clause of the Idaho Con*615stitution, the ballot legends required by Proposition 4 infringe upon the people’s right to vote under the Idaho Constitution.
I.
THE RIGHT TO VOTE IS A FUNDAMENTAL RIGHT UNDER THE IDAHO CONSTITUTION
The right to vote is a right we hold dear in Idaho. The Idaho Constitution contains a specific section in its declaration of rights which states that “[n]o power, civil or military, shall at any time interfere with or prevent the free and lawful exercise of the right of suffrage.” Idaho Const., ait. I, § 19. Further, an entire article of the Idaho Constitution is dedicated to suffrage and elections. Idaho Const., art. VI. Thus, it is obvious that the framers of the Idaho Constitution recognized voting as an important right.
We have previously recognized that under the federal constitution, the right to vote is fundamental. See Johnson v. Lewiston Orchards Irr. Dist., 99 Idaho 501, 503, 584 P.2d 646, 648 (1978) (citing United States Supreme Court eases and holding that “[t]hese cases hold that the right to vote is a fundamental political right ... ”); Thompson v. Hagan, 96 Idaho 19, 21, 523 P.2d 1365, 1367 (1974) (setting forth the test to be used “[i]f the classification involves a fundamental right such as the right to vote,..”).
This Court has stated that a right is fundamental under the Idaho Constitution if expressed as a positive right, or if it is implicit in Idaho’s concept of ordered liberty. Idaho Sch. for Equal. Educ. Opportunity v. Evans, 123 Idaho 573, 581-82, 850 P.2d 724, 732-33 (1993). Given that the Idaho Constitution specifically guarantees the right of suffrage, I would hold that voting is a fundamental right under the Idaho Constitution.
II.
IF A FUNDAMENTAL RIGHT IS AT ISSUE, THE STANDARD OF REVIEW FOR A LAW OR ACTION WHICH AFFECTS THAT RIGHT IS STRICT SCRUTINY.
If a fundamental right is at issue, a law or action infringing on that right must withstand strict scrutiny. Olsen v. J.A. Freeman Co., 117 Idaho 706, 710, 791 P.2d 1285, 1289 (1990). See also Illinois St Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). Under the strict scrutiny test, the state must justify the infringement on the fundamental interest by showing that it is necessary to promote a compelling government interest. See State v. Missamore, 119 Idaho 27, 33, 803 P.2d 528, 534 (1990).
The respondents correctly point out that the United States Supreme Court has held that the strict scrutiny standard of review is not always appropriate when reviewing voting issues. Burdick v. Takushi, 504 U.S. 428, 432-33, 112 S.Ct. 2059, 2062-63, 119 L.Ed.2d 245 (1992). The respondents further note that the “government must play an active role in structuring elections.” Id. at 433, 112 S.Ct. at 2063. However, the facts in Burdick distinguish the case and its more deferential standard of review from the one before us today, for several reasons. First, that case dealt with the United States Constitution, not the Idaho Constitution. Second, that case addressed time, place and manner restrictions on voting, which are subject to a lesser standard of scrutiny than other types of voting restrictions. Unlike the prohibition against write-in voting at issue in Burdick, a manner restriction, the issue before us today deals with a legend printed on the ballot itself, by the state. Thus, it is not a time, place or manner restriction, and I would hold that the state must show that the ballot legend’s effect on the right to vote is necessary to promote a compelling government interest.
III.
THE BALLOT LEGENDS MANDATED BY PROPOSITION FOUR INFRINGE UPON VOTERS’ RIGHTS, CANNOT WITHSTAND STRICT SCRUTINY, AND THUS UNCONSTITUTIONALLY INFRINGE ON THE RIGHT TO VOTE UNDER THE IDAHO CONSTITUTION.
The provision at issue in this case does not prevent a person or group from voting, but *616instead dictates the way the ballot itself is written. However, a recent United States Supreme Court case indicated that protection of the integrity of the ballot also protects the right to vote. In Timmons v. Twin Cities Area New Party, — U.S. -, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Twin Cities Area New Party (the Party) argued that Minnesota’s ban on fusion (or multi-party) candidates was unconstitutional. In part, the Party argued that the ban interfered with the Party’s right to communicate information to the voters via the ballot. In response, the Court stated that:
[w]e are unpersuaded, however, by the Party’s contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as fora for political expression.
— U.S. at-, 117 S.Ct. at 1372. The same reasoning applies here. If ballots could be used to convey a pejorative message regarding a candidate’s views on any topic, the ballot would be transformed from an essentially objective means of selecting our leaders to a state-sanctioned campaign pamphlet.
It might be argued that the ballot legends here would affect the candidates only, and not the people’s right to vote. However, the legends will interfere with the voters’ right to cast their ballots, free from government interference. As the United States Supreme Court has stated, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972).
The United States Supreme Court recently held that a political party does not have a right to use the ballot to send a particular message. Timmons, — U.S. at-, 117 S.Ct. at 1372. If a political party, not an official arm of the state, does not have the right to send a particularized message on the ballot, the state itself should not have the ability to do so. To allow the state to send such a message would amount to the State being permitted to endorse a candidate. While, as the United States Supreme Court noted, “States certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes as means for electing public officials,” Timmons, — U.S. at-, 117 S.Ct. at 1373, that right does not include placing pejorative messages regarding a candidate on the ballot. It also does not include the right to effectively instruct voters which issue, i.e. term limits, is most important, and which candidates have, in the state’s opinion, supported that issue.
The respondents have argued that the ballot already contains information about a candidate, including party designation, residence, and whether or not the candidate is an incumbent. When considering a term limits initiative very similar to the one before us today, the Arkansas Supreme Court eloquently rebutted the contention that the ballot language portion of the initiative was simply a means of conveying information to the voters when it stated:
Although the proposed [term limits initiative] does not compel such action by the legislature on threat of loss of salary, it is nonetheless binding on the legislators in an extortive manner as failure to heed the amendment’s instructions will result in their threatened potential political deaths. Contrary to what Respondent and Interve-nors contend, the proposed duties to be given to the Secretary of State by [the term limits initiative] are not merely ministerial; rather, they amount to substantive penalties that are equivalent to an officially sanctioned recommendation by the State of Arkansas not to vote for such candidates because they disregarded the instructions and wishes of the voters. If, as Respondent and Intervenors assert, the proposed measure is merely a nonbinding attempt to communicate the desire of the people for term limits, then their remedy is to voice their desires at the polls by voting for candidates who share their beliefs.
Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119, 127-28 (1996) (emphasis added).
*617The respondents farther argued that the State has a strong interest in ensuring that voters are informed, and that the State has a right to regulate elections. The State does indeed have those interests, but the argument that those interests permit the ballot legends mandated by Proposition 4 is unpersuasive, for several reasons.
First, the information which Proposition 4 seeks to place on the ballot is already available to the public. The vote a state representative casts on a particular issue is a matter of public record, and a non-incumbent’s stance on an issue may be ascertained by consulting the candidate’s campaign literature, by reading media coverage of the candidacy, or by other forms of research. Candidates spend a great deal of time and money in an effort to make their views known to the public. Thus, while the state does have a legitimate interest in “fostering informed and educated expressions of the popular will in a general election,” Anderson v. Celebrezze, 460 U.S. 780, 796, 103 S.Ct. 1564, 1574, 75 L.Ed.2d 547 (1983), that interest does not give the State unfettered discretion in determining how to run an election, or how to ensure and informed electorate. See Anderson, 460 U.S. at 797-98, 103 S.Ct. at 1574-75 (holding that modern communication, the large amount of money spent on campaigns, and voter education make it unnecessary for a state to require state residency for one year, or to require a candidate to register by the end of March for the November election.). When considering a Nebraska initiative very similar to Proposition 4, the United States District Court for the District of Nebraska stated this rationale quite clearly:
[p]ublic debate, news interviews, reports on prior voting records, advertisements by interest groups, and public statements by opponents provide a broad education on the issue. The ballot label in this case, however, acts more as a sound bite than an educational tool. Although elections today are filled with similarly brief info-mercials aimed at providing fast answers to difficult questions, making the state part of this misleading practice at “the most crucial stage in the electoral process — the instant before the vote is cast — ” only further demeans the election process.
Duggan v. Moore, No. 4:CV 97-3074 at 8 (D.Neb. May 15, 1997).
Second, the information currently on the ballot, such as party designation, residence, and whether the candidate is an incumbent, is objective information which is easily ascertainable. In contrast, the ballot legends set forth in Proposition 4 are subjective and pejorative. Allowing such statements on the ballot “would undermine the ballot’s purpose by transforming it from a means of choosing candidates to a billboard for political advertising.” Timmons, — U.S. at -, 117 S.Ct. at 1373. See Duggan, No. 4:CV 97-3074 at 7 (noting that the legend requirement in the Nebraska term limits initiative “does place a negatively-worded phrase next to a candidate’s name based on a single issue, and only opponents of the term limits issue are so subjected to this labeling- Such a labeling hardly qualifies as ‘evenhanded’ or ‘nondiscriminatory’.”); The League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52, 59 (D.Maine 1997) (also considering an initiative very similar to Idaho’s and holding that “[t]he ballot labels drafted by the State are certainly not neutral. They do not simply state that the candidate is ‘for term limits’ or ‘against term limits’_ They are brands of disapproval by the State_”).
Third, allowing a state official to place subjective, pejorative comments on the ballot, and to determine the circumstances under which such comments should be placed is particularly problematic in Idaho, given Idaho Constitution Art. I, § 19’s command that “[n]o power, civil or military, shall at any time interfere with or prevent the free and lawful exercise of the right of suffrage.” We have held that this section does not prevent the State from reasonably regulating the electoral process. Adams v. Lansdon, 18 Idaho 483, 490, 110 P. 280, 282 (1910). However, we further stated that “[tjhose provisions evidently refer to officers, civil or military, being about the polls to meddle with or intimidate electors, and thus to interfere with and prevent them from the free and lawful exercise of the right of suffrage.” Id. at 491, 110 P. at 282. Proposition 4 does not man*618date that state officers be physically present at the polls to emphasize to voters that a candidate has, in the Secretary of State’s view, failed to support term limits. Nevertheless, the fact that the state determines whether the legend appears on the ballot, and then prints the ballot, has the same practical effect as if an officer were present and conveying that information in person.
Fourth, I am concerned that if we permit the legends mandated by Proposition 4 on the ballot, it will open the gates to a flood of similar legends on a variety of topics. I envision a ballot in which next to each candidate’s name, a dozen or more legends appear, purportedly stating each candidate’s views on a variety of controversial issues. A study done in 1957 concluded that one of the most serious factors impacting a voter’s ability to make a thoughtful, conscious choice in the polling place is time. The authors noted that
[especially in places where voting machines are used, the voter may be hard pressed to register all of his choices in the time allotted.... If a voter has difficulty in perceiving and manipulating the ballot, he may not make the effort needed to properly mark the ballot for a candidate whom he has only a slight reason for preferring over the others.
HENRY M. Bain, Jr. and Donald S. Hecock, Ballot Position and Voter’s Choioe: The Arrangement of Names on the Ballot and ITS EFFECT ON THE VOTER, 42-43 (1957). If the ballot becomes too long, or becomes crowded with information regarding each candidate, there is a risk that people will either vote haphazardly, or will not vote at all.
The proponents of Proposition 4 have failed to show that the ballot legends are necessary to further a compelling state interest. While the state does have a compelling interest in protecting the integrity of the ballot, and in regulating elections, the ballot legend of Proposition 4 would actually undermine the ballot’s integrity, and impermissibly infringe on the fundamental right to vote under the Idaho Constitution.
IV.
CONCLUSION
I concur in full in Parts I, II, IV, V, VI, and VII of the Court’s opinion. However, I concur in the result only of Part III, and would hold that the ballot legends requirement of Proposition 4 violates the fundamental right to vote under the Idaho Constitution.