(dissenting in part, concurring in part).
Contestant1 and contestee, in accordance with the statutory system for election contests, selected the judge who would consider the election contest: The Honorable Robert J. Breunig, Chief Judge of the Second Judicial District, an able jurist and experienced in election contest matters. Judge Breunig made several findings of fact, summed up in two basic conclusions: First, that contes-tee had not committed a deliberate, material, or serious violation of the Fair Campaign Practices Act (Minn.St. 210A.04) and, second, that “The claimed offense did not arise from want of good faith and under the circumstances, it would be unjust that Robert Pavlak should forfeit his office” (§ 210A.38).
This court’s majority has substituted its findings for those of the trial judge relating to the first of these conclusions, from which I respectfully dissent. The second of these conclusions, that of contestee’s good faith, has not been disturbed, with which I concur and about which I will accordingly make only abbreviated comment.
I. The limited role of the Supreme Court
A. A major part of this court’s opinion, following a second oral argument, is devoted to an expression of our serious doubt that we either have or should assume jurisdiction to consider what constitutionally is a legislative issue and to issue what can only be an advisory opinion. The majority of the court nevertheless has decided to do so in this case and to express some findings contrary to those of the trial court. It is for that reason only that I have undertaken an independent study of the record made in the trial court and, by this separate opinion, submit in greater detail the evidence and principles supporting Judge Breunig’s findings of fact.
*854B. The majority, to the extent they have substituted findings of fact for those of the trial court, has departed from our usually limited scope of appellate review. It is well settled, as stated in In re Estate of Balafas, 293 Minn. 94, 198 N.W.2d 260 (1972), and our Rule 52.01, Rules of Civil Procedure, that findings of fact made by the district court should not be set aside unless “clearly erroneous.” I respectfully submit, moreover, that where an able and experienced trial judge has had the opportunity to observe and hear the several witnesses in this case and to assess their credibility (including impeachment of one of the two parties in this election contest), neither we nor, for that matter, legislators have any unique competence to second guess him on the basis of a cold record.
The state Solicitor General, appearing in the second oral argument at the direction of the Attorney General, pursuant to our invitation, affirmed that in this case our limited role is to determine whether the findings of fact made by the trial court are supported by the evidence, not to make findings ourselves.
II. A constitutional imperative
A constitutional perspective is vital to consideration of all of the issues in this election contest, for the interpretation and application of § 210A.04, upon which this contest is based, inescapably implicates the free expression guarantees of the First Amendment to the United States Constitution as well as the like provisions of art. 1, § 2, of the Minnesota Constitution. The United States Supreme Court in Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484, 488 (1966), a matter arising under the Alabama Corrupt Practices Act, made it clear:
“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of. candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, to play an important role in the discussion of public affairs.”
Minn.St. 210A.04, subd. 1, a section of the Minnesota Fair Campaign Practices Act, provides:
“Every person who writes, prints, posts, or distributes, or causes to be written, printed, posted, or distributed, except by broadcasting, any circular, poster, or other written or printed matter containing false information with respect to the personal or political character of acts of any candidate, which is designed or tends to elect, injure or defeat any candidate for nomination or election to a public office, shall be guilty of a gross misdemeanor.”
We held in Dart v. Erickson, 188 Minn. 313, 319, 248 N.W. 706, 709 (1933), that there is a “necessity for strict construction” because the Corrupt Practices Act is “highly penal, not only in imposing the penalties of misdemeanor upon offenses against it, but also in adding, for candidates, that of forfeiture of nomination or office.” We even more recently in Matter of Contest of General Election [Graves v. Meland], 264 N.W.2d 401, 403 (Minn.1978), involving the present statute, said:
“ * * * These are criminal statutes, violations of which are gross misdemeanors. Therefore, the rule of strict construction of penal statutes must be applied notwithstanding the civil nature of the proceeding before us. Even in this civil proceeding, the consequences of a violation are severe since the decision of the voters is judicially set aside, and under the statute they have no opportunity *855to vote for a disqualified candidate in an election to fill the vacancy.” (Italics supplied.)
The constitutional law of libel has been established by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964), and its progeny, involving false statements concerning public officials. The constitutional rule is that such statements are actionable only upon a showing of “actual malice,” which is now constitutionally defined as made “with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. 280, 84 S.Ct. 726, 11 L.Ed.2d 718, 95 A.L.R.2d 1435. The shorthand reference to this New York Times test is now “knowing or reckless falsity.” Gertz v. Welch, 418 U.S. 323, 347, note 10, 361, 94 S.Ct. 2997, 3010, 3018, 41 L.Ed.2d 789, 809, 818 (1974). This decision was made “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” And, further, “[tjhat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need * * * to survive,’ * * 376 U.S. 270, 84 S.Ct. 721, 11 L.Ed.2d 701, 95 A.L.R.2d 1430.
Mr. Justice Brennan, who wrote for the United States Supreme Court in New York Times Co. v. Sullivan, supra, reiterated its premise in Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597, 605 (1966):
“ * * * The motivating force for the decision in New York Times was twofold. * * * There is, first, a strong interest in debate on public issues, and second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.”
The United States Supreme Court, as it recalled 10 years later in Gertz v. Welch, supra, “concluded that a ‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech.” 418 U.S. 334, 94 S.Ct. 3004, 41 L.Ed.2d 802. “ * * * The First Amendment requires that we protect some falsehood in order to protect speech that matters.” 418 U.S. 341, 94 S.Ct. 3007, 41 L.Ed.2d 806.
Important elements in the constitutional rule of New York Times — essential to consideration of the evidence and findings in the instant case — have been made absolutely clear by the United States Supreme Court, as well as this court, in applying the rule:
1. The knowing or reckless falsity of a statement must be proved with “convincing clarity.”2 Mere proof of negligence does not meet the test. New York Times Co. v. Sullivan, supra; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Rosenblatt v. Baer, supra; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Rose v. Koch, 278 Minn. 235, 154 N.W.2d 409 (1967). Mr. Justice MacLaugh-lin, in Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn.1977), said: “We have defined actual malice as more than mere negligence and probably even more than highly unreasonable conduct. Rose v. Koch, supra.”
*8562. The public official has, and should exercise, other opportunities for refuting misstatements of fact. Mr. Justice Harlan, in the plurality opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1111 (1967), noted that public officials have “sufficient access to the means of counterargument to be able ‘to expose through discussion the falsehood and fallacies’ of the defamatory statements. Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (Brandeis, J., dissenting).” And this was similarly expressed in the concurring opinion of Mr. Chief Justice Warren. More recently, in Gertz v. Welch, supra (418 U.S. 344, 94 S.Ct. 3009, 41 L.Ed.2d 807), Mr. Justice Powell expressed in his plurality opinion:
“ * * * The first remedy of any victim of defamation is self-help — using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channel of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.”
3. The constitutional imperatives of New York Times are not confined to actions for defamation and are a restraint on executive or legislative action as much as judicial action. As the United States Supreme Court re-emphasized in Garrison v. Louisiana, supra (379 U.S. 74, 85 S.Ct. 216, 13 L.Ed.2d 133):
“ * * * Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. * * * For speech concerning public affairs is more than self-expression; it is the essence of self-government.”
The relevance of these cases is not limited to actions for libel,3 for the rationale is applicable to all discussion and debate about public affairs. The United States Supreme Court was directly concerned with the sanctions that might be employed for such speech. In New York Times the sanction was the possibility of ruinous money judgments against the press which, because they would intimidate the press and stifle wide-open discussion of public affairs, would chill the First Amendment. The sanction in this election case is no less serious. One statutory sanction is that “A candidate elected to an office, and whose election thereto has been annulled and not set aside * * * shall not, during the period fixed by law as the term of said office, be appointed or elected to fill any vacancy which may occur in such office” (§ 210A.39) — in short, a total forfeiture of any right to hold the office or to be a candidate in a new election to fill the vacancy created. A second statutory sanction is the possibility of prosecution for commission of a gross misdemeanor (§ 210A.04). The chilling effect upon the First Amendment is clearly no less than that feared in New York Times and its progeny.
Two election-related cases illustrate and instruct us in the application of these New York Times’ principles to the instant case. The first is St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262. St. Amant, a candidate for public office, made a televised speech,4 in which he read questions put to a union member, Albin, and Albin’s answers which falsely charged *857Thompson, a public official, with criminal conduct. The Louisiana Supreme Court had affirmed a trial court judgment for libel, based on a finding that St. Amant had acted in reckless disregard of whether or not those answers were true or false, since he had no personal knowledge of Thompson’s activities, had relied solely on an affidavit of Albin without evidence of Albin’s veracity, had failed to verify the information with others who might know the facts, and had mistakenly believed that he had no responsibility for the broadcast because he was merely quoting Albin.5 The United States Supreme Court reversed, stating, in part (390 U.S. 730, 88 S.Ct. 1325, 20 L.Ed.2d 267):
“These considerations fall short of proving St. Amant’s reckless disregard for the accuracy of his statements about Thompson. * * * [Our] cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the • conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
“ * * * Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.
“By no proper test of reckless disregard was St. Amant’s broadcast a reckless publication about a public officer.”
The second case is Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). Three days before the election, in the New Hampshire Democratic primary election of candidates for the United States Senate, the Concord Monitor, a daily newspaper, published a column, “D. C. Merry-Go-Round,” syndicated by the North American Newspaper Alliance (NANA), discussing the forthcoming election, in which it characterized Roy, one of the candidates, as a “former small-time bootlegger.”6 The New Hampshire Supreme Court affirmed a judgment in libel against both NANA and the Monitor Patriot Company. The .United States Supreme Court reversed because the issue had not been submitted to the jury with instructions sufficiently squared with the New York Times’ standard, stating, in part (401 U.S. 274, 91 S.Ct. 626, 28 L.Ed.2d 42):
“The considerations that led us thus to reformulate the ‘official conduct’ rule of New York Times in terms of ‘anything which might touch on an official’s fitness for office’ apply with special force to the case of the candidate. * * *
******
“The application of the traditional concepts of tort law to the conduct of a political campaign is bound to raise dangers for freedom of speech and of the press. The reasonable-man standard of liability, for example, served admirably the essential function of imposing an objective and socially acceptable limit on the freedom of an individual to act with relation to others. But under our system *858of government, we have chosen to afford protection even to ‘opinions that we loathe and believe to be fraught with death,’ Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (Holmes, J., dissenting). A community that imposed legal liability on all statements in a political campaign deemed ‘unreasonable’ by a jury would have abandoned the First Amendment as we know it.”7
III. Contestant’s claim that contestee violated the Fair Campaign Practices Act
The contestant contends that contestee violated the election law solely because he distributed a reprint of an editorial in the Saturday, November 4, 1978, morning edition of the St. Paul Dispatch-Pioneer Press (Exhibit 1) containing this single challenged sentence: “We have seen nothing to dispute [Pavlak’s] research report on Kempe that shows [Kempe] voted four times in 1967-68 —this out of more than 300 opportunities.” The trial court found that the sentence was ambiguous and in effect found that, in any event, it was neither deliberate nor material nor serious. The majority, by its substituted finding, concludes that the editorial sentence was false and that reprinting it was serious and material, as well as deliberate. I respectfully submit to the members of the House of Representatives my observations, based upon the record as evaluated objectively and realistically by the trial judge, as they now must make a final decision of this election contest.
It is important to note, at the outset, that this election contest hinges upon a single sentence in a single editorial — an isolated incident — that should not be divorced from the whole of that editorial and from the total context of the election campaign. A substantial part of the editorial, consisting of the opening, middle, and concluding paragraphs, representative of the nature of the whole, is set out in the margin.8 The *859editorial is self-descriptive: A series of endorsements for legislative candidates in districts within Ramsey-Dakota-Washington Counties, that newspaper’s strongest circulation area, generally favorable to Independent Republican (IR) candidates (contestee among them) and unfavorable to Democratic-Farmer-Labor (DFL) candidates (contestant among them). The issue in those more complete contexts, then, is whether the isolated sentence in that editorial, republished by contestee, was “false” and, if so, whether it was “serious” and “material.”9
A. Any consideration of the factual issue of whether the challenged sentence of the editorial was “false” should start with the meaning of the word, for it has the various and distinctive nuances ascribed to it in Webster’s Third New International Dictionary (1966) p. 819. Its primary meaning is: “Not corresponding to truth or reality; not true” (the synonyms of which are “erroneous, incorrect”). A secondary, pejorative meaning is “intentionally untrue” (the synonym of which is “lying”).
This sentence, if considered false, is “false” only in the primary meaning of the word. It is false when it attributes to contestee’s research report the statement that incumbent voted only 4 times out of more than 300 opportunities, for contestant concedes that nothing in contestee’s notes delivered to the editor warranted that statement. There was no mention of “four votes” in those notes; the votes were a compilation of contestant’s nonvotes. If the sentence, as a whole, is read to say that contestant voted only four times in the entire legislative session, it would be apparent to any intelligent reader as palpably unbelievable and preposterous. Robert Larson, who prepared contestee’s regular campaign materials and who did not think the reprint would add anything beneficial to the campaign, characterized the editor’s prose in these words: “We are talking about a man who writes tortuous syntax that is unbelievable.” Whatever the fault of the editorial writer, no one even intimates that he intended to publish an untruth.10
The majority of this court, unlike the trial judge, reads the sentence as totally false, ignoring one unassailable truth in it: Contestant had “more than 300 opportunities” to vote — and voted no times, not even four times. The majority, although stating at a later point that “voting is the essence of a representative’s position” at this point states that contestant missed “only” 329 votes,11 a charitable adverb presumably not shared by those of contestant’s constituents who voted for his opponent.
*860Judge Breunig thought the challenged sentence was facially ambiguous, based upon his own reading and the varying readings given it by witnesses who appeared before him. This ambiguity is made more apparent by a reading of the editorial reprint together with contestee’s other campaign brochures and advertising reprints in the packets with which the 1,800 to 1,900 editorial reprints were distributed, none of which even intimated that contestant voted only four times in the 1977-78 session. It is undisputed that no more than about 400 of the editorial reprints were distributed alone and not as part of a complete packet of contestee’s campaign materials.
B. Discussing next the issue of whether the editorial reprint (Exhibit 1) was “material” or “serious,” it will now be assumed, solely to make these distinctly different points clearer, that the challenged sentence was both unambiguous and false. The two statutory terms are, in my view, opposite sides of the same coin,12 both sides of which must yield an answer to the ultimate question of whether the circulation of the editorial reprint, viewed in the full context of the campaign and not as an isolated incident, probably resulted in the election of contestee and not contestant. Judge Breu-nig found that it did not. The majority of this court states only that the answer is “uncertain.” The members of the House of Representatives will, upon their own assessment of the record, decide whether Judge Breunig’s judicial answer is to be accepted or rejected.
1. The materiality and seriousness of the editorial reprint may be measured, first, in relation to the content and circulation of all the other campaign materials — charge and counter-charge — of the two candidates. Well before the publication and republication of the challenged November 4 editorial, the voters of District 67A had been massively exposed to the fact that contestant had not voted on more than 300 roll-call votes. It was obviously an extensive and expensive campaign, replete with numerous lawn signs, paid newspaper advertising, advertising reprints, and elaborate campaign brochures. Robert Larson, who was in charge of publications for contestee, testified that contestee’s campaign was, from its inception, “geared to the legislative truancy” of contestant and the promotion of con-testee’s own “positive program.”
Larson prepared two major campaign pieces for that purpose. The first was a multicolor fold-out brochure (Exhibit 6), containing such conventional elements as photographs, personal biography, endorsements, and positions on voter-interest issues, to be used as a handout on a door-to-door campaign and as an “add-on” for later “literature drops.” This major brochure prominently displayed, below contestee’s photograph, a “Dear Neighbor” letter signed by contestee and directed exclusively at the record of contestant’s missed votes.13 This brochure was distributed over the entire legislative district by literature drop in early October. The second campaign piece was an advertisement, with the same theme, to be inserted in the South Edition of the St. Paul Dispatch, the West St. Paul-Mendota Heights Sun, the West Side/West St. Paul Voice, and the Dakota County *861Tribune (Exhibit 7) toward the end of the campaign. Reprints of this advertisement were distributed by literature drop late in October as part of a packet of several of contestee’s campaign pieces.14
James Aydt, contestee’s campaign manager, conferred with Robert Larson on November 4 about reprinting a marked copy of that morning’s St. Paul Dispatch-Pioneer Press editorial. Larson reluctantly acceded to Aydt’s wish, however, for this significant reason (credited by the trial judge): “To my way of thinking this editorial added nothing to what we had stated. * * * We already had two pieces of literature that emphasized the poor voting record; anything more would be redundant.”
Contestant’s campaign was np less vigorous. He had an attractive major brochure (Exhibit 22) similarly complete with photographs, biographical information, impressive endorsements, and a statement of his legislative accomplishments and goals. One paragraph of this brochure stressed his laudable attendance record.15 This brochure was distributed throughout the district both by literature drop and by mailing to each registered voter in the district. Contestant had, in addition, his own “Dear Neighbor” letter (Exhibit 21), widely distributed in obvious rebuttal of contestee’s “Dear Neighbor” letter.16
Rounding out the campaign for both candidates was a story in the October 25 West St. Paul-Mendota Heights Sun headlined “Pavlak attacks Kempe attendance-voting record” (Exhibit 27), and a story in the West Side/West St. Paul Voice, mailed or delivered to all residences and businesses in District 67A on November 6, containing a front-page photograph of contestant and a story headlined “Irate Kempe counters ads of Bob Pavlak.” Inside this West Side/West St. Paul Voice was contestant’s “Open Letter to Voters,” in the same text as Exhibit 23,17 a second advertisement stressing his accomplishments in the past *862legislative session and his proposals for the next session, a third advertisement of endorsement written in Spanish, and a fourth advertisement covering the entire back page and containing much the same material as his main brochure (Exhibit 22). In the same issue, contestee published an advertisement again attacking contestant’s nonvoting record in much the same text as Exhibit 7,18 a second advertisement opposing government spending and high taxes, and a third advertisement containing an endorsement written in Spanish.
Judge Breunig took specific note of this evidence in this realistic finding:
“Considered in light of Arnold Kempe’s distribution of campaign material (Exhibits Nos. 22 and 23) which addressed the voting record issue and in light of the already wide dissemination of the editorial by the St. Paul Pioneer Press-Dispatch, contestee’s distribution of that editorial had no material effect on the outcome of the election.”
2. The materiality and seriousness of the editorial reprint should be measured, second, in relation to the far greater readership of the original editorial itself and, in addition, the subsequent “correction” editorial on November 6. The November 6 editorial was actually more damaging than that of November 4, for it made no mention of “300 opportunities” and simply declared that “Kempe voted four times during the years 1977-78.” It is conceded by contestant that, whatever may be contestee’s responsibility for the reprint, contestee was not in any way responsible for the two editorials published in the newspaper itself. The measurement relates exclusively to the isolated sentence about contestant’s voting record, of course, and does not measure the total effect of everything else in the original editorial — including the favorable endorsement of contestee.
The circulation of the St. Paul Dispatch-Pioneer Press in District 67A on November 4, according to the stipulated records of the newspaper, was: 5,709 home deliveries, plus 622 sales to nonsubscribers — a total of at least 6,300 individuals. Aggregate circulation of the St. Paul Dispatch on November 6 was 5,061. Circulation by contestee of the editorial reprint, Exhibit 1, on the other hand, was limited to 1,800 to 1,900 individuals.
Circulation numbers, of course, do not necessarily reflect actual readership. It seems a reasonable assumption, however, that voters who voluntarily purchase a newspaper for the purpose of reading it are far more likely to have read the original editorial than those who are the involuntary recipients of a newspaper reprint included in a packet of campaign materials placed on their automobiles at church or on the doorsteps of their homes. This is more than an assumption, moreover, for it is demonstrated in fact by two witnesses for contestant. Frank Rodriguez, one of the titular contest*863ants, testified: “[The editorial reprint] was put on my car and I did not read it.” Henry Duehene, another witness for contestant, testified that he saw the reprint on the Monday evening before the election but “didn’t pay any attention to it.”
3. The circulation of the editorial reprints at four churches in District 67A on Saturday-Sunday, November 5-6, warrants brief mention supplemental to the two points just made. The 550 to 650 reprints placed on the windshields of automobiles in the church parking lot are included in the total of 1,800 to 1,900 reprints circulated. It was approximately 400 of these that were distributed without being included in a packet containing several of contestee’s campaign materials. Whether all of these remained on the windshields is uncertain, for there is testimony that numbers of the reprints were blowing about on at least one of the parking lots. Contestant similarly circulated his own campaign materials in the same manner, on this same weekend, at the same churches.
4. The contemporaneous19 reaction of contestant at the time of the publication of the original editorial — and even at the time of distribution of the editorial reprint — is the ultimate confirmation that distribution of the reprint was not serious or material. David Nitti, contestant’s campaign manager, met contestant on the street at noon that Saturday, November 4, and told contestant that the endorsement was damaging; it was only as an apparent afterthought that he added “they screwed up your voting record.” James Scheibel, a titular contestant, similarly “took it as an endorsement” and thought “the intent of the whole editorial was that” — and he so mentioned it to contestant either that day or it “could have been” the next day, November 5. Thomas Quinlan was called by contestant at 9 a. m. the same day the editorial appeared and “they talked about it.” Nothing more than that. These reactions by contestant’s active supporters confirm that of James Aydt, contestee’s campaign manager, that the importance to con-testee was simply the fact that it was an endorsement — an endorsement by the major daily newspaper in the tri-county metropolitan area in which District 67A is located.
The reaction of contestant himself on that weekend is even more demonstrative. Contestant, aware of the editorial, ordered 3,500 “insti-prints” of his “Open Letter to Voters” on the issue of his voting record (Exhibit 23) and made his own weekend distribution, including the same churches at which the editorial reprint (Exhibit 1) had been distributed by contestee. Recognizing the editorial as a damaging endorsement, the reverse side of the “Open Letter” contained a reprint of a news item characterizing contestant as a “Pro-Life Representative.” Not then perceiving the now-challenged sentence of the editorial as anything more than a repetition of contestee’s continuing assault upon his record of nonvotes, contestant responded simply with a last-minute distribution of a reprint repeating his regular rebuttal.
Contestant attempted to evade the obvious inferences from his contemporary conduct by asserting before Judge Breunig that he had not seen the editorial until Monday, November 6. Contestant’s testimony was patently impeached by the contrary testimony of Nitti, Scheibel, and Quinlan. Thomas Quinlan additionally testified concerning his conversation with contestant on the morning of November 4: “We both agreed we had seen it.” The trial *864judge may well have viewed with similar incredulity contestant’s explanation that he did not regularly read the editorial page, preferring to read the sports pages. A permissible inference arises that contestant’s delayed efforts to mitigate the claimed damage resulting from the November 4 editorial, by demanding from the publisher late on November 6 a retraction that could not have been published prior to the November 7 election day, even assuming that the court fully credited the uncorroborated account of his conversation with the publisher, may have been tactical: To win election at the polls on the basis of his full opportunity during the whole of the campaign to refute any and all misstatement about his voting record — but, if unsuccessful, ultimately to defeat his opponent through an election contest.
IV. Contestee’s good faith
The statutory defense of good faith is alone determinative of this election contest. This court, which applied the defense in one of our most recent election cases, Schmitt v. McLaughlin, 275 N.W.2d 587 (Minn.1979), does not make a finding contrary to Judge Breunig’s finding that contestee did not act in bad faith. It is, indeed, noteworthy that in Schmitt we ourselves unanimously invoked the statutory defense of good faith even though it had not been mentioned by the trial court as a basis for dismissing the election contest. We concluded that the expressed will of the voters is not lightly to be overturned.
“Violation of Minnesota-election law,” as this court unanimously held in Schmitt v. McLaughlin, “does not necessarily mean that the candidate elected must be deprived of his office. Minn.St. 210A.38 provides that where the act ‘complained of arose from accidental miscalculation or from some other reasonable cause of like nature, and in any case did not arise from any want of good faith, and under the circumstances it seems to the court to be unjust that the candidate shall forfeit his . . . office,’ the penalty of removal need not be imposed. See, Bank v. Egan, 240 Minn. 192, 200, 60 N.W.2d 257, 262 (1953).” (275 N.W.2d 591.)
The defense of good faith is not only statutory but, as discussed in the introduction of this opinion, has a constitutional dimension protecting the freedom of spoken and written words in the discussion of public affairs, except only if it is proved with convincing clarity that such words were used with knowledge of their falseness or in reckless disregard of whether true or false. Contestee’s publication of the reprint without a more complete cautionary comment in the margin may well have been negligent, notwithstanding his stated assumption that the newspaper, with its considerable investigative resources, had discovered information of which he was not aware.20 An adverse judgment based on negligence, however, is constitutionally impermissible.
State legislators, who will now make the final judgment in this election contest, certainly appreciate the almost inevitable inadvertence in making ambiguous or erroneous statements in political campaigns, particularly when absorbed in the sometimes frenetic hours and short days immediately preceding election day. The isolated error, of course, is to be distinguished from a continuous course of deliberate misrepresenta*865tion.21 The circumstances of the isolated error in this case have been noted in the majority opinion.
Contestee testified, as a matter of subjective state of mind, that his intent in reprinting the endorsement editorial was only to corroborate the central theme of his campaign that contestant had failed to vote on a substantial number of roll calls. Judge Breunig, selected by the parties themselves, who had the opportunity of hearing and observing this testimony as well as that of the other witnesses, believed this testimony. As an appellate court, we have no basis for discrediting testimony credited by the trial judge. It is doubtful that the legislature would, on this record, made in accordance with its own statute, have any rational basis for concluding otherwise.*
. “Contestant” in this opinion is, for simplicity, a reference to Arnold Kempe alone. It reflects, moreover, his real status as set out in the record. Before this election contest was brought, Mr. Kempe had discussions with the “House majority” (the representatives of his political party) and then assembled the individuals named as contestants in his office on November 18, 1978, together with him and Attorney Alan W. Weinblatt. They discussed the “67 to 67 balance of power” in the House of Representatives and there decided that it was “better to have others than Kempe as contestant [because] if it was.Mr. Kempe it may be taken, as some people call it, sour grapes.” Mr. Kempe himself “had a general feeling because of the political nature of things that perhaps if it were to be brought, others could do it.”
. We ourselves gave definition to that term in Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.1978): “* * * ‘Clear and convincing proof means exactly what is suggested by the ordinary meanings of the terms making up the phrase. Satisfaction of this standard requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Clear and convincing proof will be shown where the truth of the facts asserted is ‘highly probable.’ ”
. These cases are, of course, directly relevant to the claim of contestant, at oral argument, that the editorial reprint'upon which this action is based was seriously false and defamatory. Minn.St. 210A.04, subd. 1, as we held in Graves v. Meland, 264 N.W.2d 401, 404 (Minn.1978), “clearly relates to defamatory publications.”
. Minn.St. 210A.04, inexplicably excludes broadcast statements from its prohibitions and sanctions, the more remarkable since the broadcast media is now more widely used than the print media in major political campaigns. Contestee in this case contends the statute, because of that exclusion, constitutes a denial of equal protection as guaranteed by U.S. Const. Amend. XIV and Minn.Const. art. 1, § 2. The court in this case has chosen not to address this issue.
. We will later, for the instant case, be considering contestee’s reliance on the editorial statements of the reputable St. Paul Dispatch-Pioneer Press, without reverification, and upon apparent belief that the responsibility for any misstatement was the newspaper’s, not his.
. We will later, for the instant case, be considering a republished newspaper misstatement, within 3 days before the election, that contestant voted only 4 times out of 300 opportunities, patently far less reprehensible than an accusation of criminal conduct. See, also, Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), in which District Attorney Garrison, at a press conference, falsely charged certain state court judges with hampering his efforts to enforce the state’s vice laws.
. Our own case of Rose v. Koch, 278 Minn. 235, 154 N.W.2d 409 (1967), is of more tangential interest, but indirectly involved an election campaign. Koch and Christian Research, Inc., in a publication entitled “Facts for Action,” stated that Rose (a candidate for election and, subsequently, a representative in the Minnesota Legislature) “collaborates with Communists and Communist Fronters.” (Rose’s opponent, a member of the same political party, republished the defamatory materials, but no action for libel was initiated against him.) We there carefully canvassed the United States Supreme Court cases up to that time and, as in Monitor Patriot, reversed upon the ground that the instructions to the jury, upon which it returned a libel verdict for Rose, did not comport with the New York Times constitutional principles.
. “In elections past, the Dispatch and Pioneer Press have presented a sort of laundry list of legislative endorsement, bi-partisan in selection, but with a list toward the DFL. This last has been the result simply of one party’s fielding better candidates than the other. If a party has deserved minority status, in fact, it has been the Minnesota Republican party.
“With party designation have come significant gains for the DFL. The party also got a tremendous boost in the reaction to the Watergate scandal. With these gains have come total control and now an arrogance that is both unbecoming [and] unhealthy.
* * * ⅞⅜ * *
“We make the following endorsement, then, based on our opinion of the quality of the candidates and, importantly, on the need to help impress our lords on Capitol Hill that they are not immortal, that there are citizens out there wanting a voice, many of them ‘madder than hell.’
“Let us start in District 63B, Highland Park, where incumbent DFLer Richard Cohen is being challenged by John Drew, the IR candidate. Our endorsement goes to Drew for reasons too many to enumerate. Drew, a computer operations specialist employed by Mutual Service Insurance Company, has sized up the ailments of the day with accuracy — profligate spending, crippling taxation in all brackets, the vested interest government has in inflation (he is for tax indexing), the decline of our schools, the state’s unhealthy climate for business — and has demonstrated an understanding of these and other problems that is to be applauded.
* * * $ * ‡
“There is an interesting race in District 67A, one of a few that crosses county lines (Ramsey and Dakota). Former Rep. Robert Pavlak, IR, a St. Paul police lieutenant, is attempting a comeback against a state representative difficult to classify either as a liberal or a conservative. This would be Arnold Kempe, West St. Paul attorney.
“Pavlak, through his years in the Legislature, earned a reputation as an independent, outspo*859ken and hardworking ‘show me’ type of individual. We have seen nothing to dispute his research report on Kempe that shows the incumbent voted four times in 1967-68 — this out of more than 300 opportunities.
“This is, indeed, unusual. Kempe, like Pav-lak, is for tax indexing, but one wonders if he would be around to vote for it.
“There is a rather modest list for a rebellion, but it is the best we could muster. We do think the majority party needs a touch of anxiety, if not an outright fright.”
. I do not address the third statutory element of whether the republication of the editorial was “deliberate.” It was so, in the sense that it was contestee’s voluntary act to reprint and distribute it. It was not so, however, in the sense that contestee had no conscious intention to commit an unfair campaign practice — an aspect more properly considered together with a separate finding of whether or not contestee acted in good faith.
. Contestant’s Exhibit 9, a newspaper report in the Minneapolis Tribune, November 15, 1979, confirms this: “William Sumner, editor of the St. Paul Dispatch and Pioneer Press, admitted to misreading material given him by Pavlak. He published a correction Monday, T played the complete rookie,’ Sumner said. T misinterpreted it.’ ”
. Contestant concedes that he failed to vote on 329 roll-call votes in the 1977-1978 session. He explains in his own published responses that he had a conflict between committee sessions and House sessions at which roll-call votes were taken. The record does not indicate whether there was a “call-of-the-House” at those times, but it doe's disclose that others similarly situated on committee business did vote. The days on which the roll-call votes were missed were not few: March 30; April 1, 11, 13, 20, 21, 25; May 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 17, 18, 19, 20, 21, 23, 1977; and February 6, 20, 21, 22, 23; March 3, 6, 10, 13, 14, 17, 20, 22, and 23, 1978.
. I disagree with the apparent view of the majority that whether the false statement was “serious” is to be determined simply by whether a circulation of 1,800 to 1,900 of the editorial reprints was a “trivial amount.”
. This is the text of contestee’s “Dear Neighbor” letter (Exhibit 6): “It would be quite easy for me to rest on my eight years of solid accomplishment as a former state legislator.
“But ... so many of our neighbors have urged that I do something about the deplorable lack of representation this District has been experiencing. Our country was founded on the idea of ‘no taxation without representation.’ Well, Neighbor, that’s still our problem today!
“We have a ‘some-time’ representative who misses sessions and failed to record a vote at least 305 times during 1977-78 Sessions alone. [Recorded in House Journal, 1977-78]
“You see the need. So do I. Together we can make a change. It’s an idea whose time has come.”
. All except about 400 of the 1,800 to 1,900 editorial reprints (Exhibit 1) circulated by con-testee were included in these packets. One other item distributed at the same time as Exhibit 1 was Exhibit 8, a reprint of an advertisement published in the November 5 St. Paul Pioneer Press by SEIU Local 284, listing contestant among legislators who had voted in a closed-to-public meeting to permit legislators to retire with a vested pension after 6 years’ service.
. This is the relevant paragraph of contestant’s major brochure (Exhibit 22): “Rep. ARNOLD KEMPE believes that your vote in the Legislature is important. His attendance during the Legislative sessions is as follows:
“1975 - 1976 Sessions 100%
“1977 - 1978 Sessions 96%
“(1975-78 House Journals)”
. This is the text of contestant’s “Dear Neighbor” letter (Exhibit 21): “My opponent again is misrepresenting facts as he did in 1974 when he was voted out of office. In 1974 Pavlak mailed out a letter to renters with an enclosed list of five then recently enacted pieces of legislation benefiting renters. He implied that he had supported and worked hard for that legislation. But in fact Pavlak had voted against the renter’s tax credit and most of the legislation on his list. Now again he is misrepresenting the record on my attendance record during the sessions. My attendance record for my two terms is;
“1975 - 1976 Sessions 100%
“1977 - 1978 Sessions 96%
“(1975-78 House Journals)”
.This is the full text of contestant’s “Open Letter to Voters” (Exhibit 23): “My Republican opponent’s ad that I missed sessions and votes is a deception on the voters. The fact is in the 1975-76 Sessions my attendance was 100%, and in the 1977-78 Sessions my attendance was 96%.
“On the matter of voting, my Republican opponent knows that I served on House-Senate Conference Committees that were in meetings while the House was in session. On my H.F. 544, removing the moratorium on I-35E, I was in Conference Committee in both the 1977 and 1978 Sessions.
“On my Determinate Sentencing under Guidelines Bill, I was in Conference Committee Meeting for five days during the 1978 Session. On H.F. 82 I was in Conference Committee two days in 1978 and successfully stopped the Senate attempt to reduce penalties on crimes of receiving stolen property and theft. For my Republican opponent to try to use my inability to vote during Conference Committee Meeting is a clear fraud and deception on the voters.
“To be selected by the House to represent the entire body in working out the differences be*862tween the House and Senate versions of legislation is both an honor and a high obligation. For my Republican opponent to use this to claim I didn’t vote when I could not is an attempt at deception.”
. This is the slightly abbreviated text of con-testee’s advertisement (Exhibit 7): “Where was Arnie when we needed him to vote on these 1977 & 78 proposed laws? Kempe missed 300 votes!
“Was he too busy working as Attorney for the City of West St. Paul to take care of District 67-A’s STATE business?
“Or was he too busy working at his PRIVATE law practice to take care of either STATE or CITY business?
“Or WHAT?
“Actually, Amie’s reason for missing all the votes he did is really immaterial! He missed them. When your State Representative fails to vote on proposed legislation your interests are ignored, your voice is silenced, you are without representation. You, as a District 67-A voter deserve better than this.
“When you return Bob Pavlak to the legislature you will again have representation. During his previous eight years as a State Representative, Pavlak had an almost perfect attendance record and rarely missed a legislative vote.
“As your representative PAVLAK PLEDGES to work diligently to reduce government spending significantly while maintaining needed expenditures * * * ”
. “Contemporaneous,” of course, refers to the weekend of November 4-6. The noncontempo-raneous period would include the period from those dates to the belated meeting in contestants’ office on November 18, previously discussed, when a decision was made to contest the election in light of the 67 to 67 deadlock in partisan representation in the House of Representatives. The Independent-Republicans unsuccessfully undertook to break the legislative deadlock by an election contest on similar grounds, O’Loughlin v. Otis, 276 N.W.2d 38 (Minn.1979), which was aborted on procedural grounds.
. This reliance was not unreasonable, for as disclosed in contestant’s Exhibit 18, the editorial research staff of the St. Paul Dispatch-Pioneer Press, several days later, did make its own independent research of the House Journals for the 1977-78 sessions, from which it found: “Out of a total of 1,687 opportunities to vote on various bills, Kempe voted 1,352 times.” The possibility of good faith human error in such research is underscored by the fact that such subsequent research showed that while contestant had noted 1,798 roll-call opportunities,” the editorial research showed 1,687 such opportunities. But, even so, the editorial research showed a failure to vote 335 times, whereas the parties themselves agree that contestant had failed to vote 329 times.
. This distinction was given judicial expression by a distinguished jurist, Sterry R. Waterman, United States Court of Appeals, Second Circuit, in Goldwater v. Ginzburg, 414 F.2d 324, in affirming a libel judgment for intentional falsehood published about Senatory Barry Goldwater in Fact Magazine during the Johnson-Goldwater presidential campaign. Judge Waterman, writing of “the highly charged atmosphere of a political campaign,” observes that “it is not unlikely that emotional, biased and false statements may occasionally be made” and that “deadline pressures, editing errors, faulty research and partisan outlooks no doubt contributed to the publication of erroneous statements.” (414 F.2d 335). But, he concluded: “As can,be seen, appellee and the district judge did not rely on a few isolated instances of derogatory statements which could be charitably thought of as being nonactionable negligent or good faith misstatements of fact, but rather upon the totality of appellants’ conduct, as evidenced by the proffered materials, from which a jury might reasonably find a predetermined and preconceived plan to malign the Senator’s character.” (414 F.2d 337.)
Subsequent to release of today’s advisory opinion, the House of Representatives on May 18, 1979, made a finding that contestee had committed a deliberate, serious, and material violation of the Fair Campaign Practices Act and that it was not committed in good faith. The vote was 67 DFL representatives in favor of that finding and 66 IR representatives opposed. (Contestee was by law excluded from voting on the issue.) Contestee’s office was thereupon adjudged vacated.