(dissenting).
Disagreeing, as I do, with the majority’s equal protection analysis, I must respectfully dissent.
The majority says that state troopers running for sheriff are similarly situated with other law enforcement officers running for sheriff and with state troopers running for other county offices. I do not think so.
The Minnesota Highway Patrol is a statewide, uniformed police organization with limited jurisdiction. See Minn.Stat. ch. 299D (1980). There is no other class of state employees or law enforcement group quite like it. It is a relatively small unit, having an authorized strength of 504, but with high public visibility. Because of their unique position in the state service, the legislature has placed troopers in the unclassified service. Minn.Stat. § 43.28 (1980).
The legislature has instructed the highway patrol to have a close working relationship with local law enforcement personnel and “to cooperate, under instructions and regulations of the commissioner of public safety, with all sheriffs and other police officers * * Minn.Stat. § 299D.03 (1980). Troopers, testified the assistant patrol chief, “are guests in the individual facility, the sheriff’s facility, and as a guest there we are obligated to follow his rules.” State troopers at appellant’s station necessarily must use the sheriff’s jail facilities because no other exists in the county. They must rely on the sheriff’s office for such things as driver’s license and vehicle computer checks and breathalyzer machines. State troopers and the sheriff’s office must assist each other regularly and their cooperation is crucial to effective law enforcement in the county.
Because of their training, propensities, high community visibility and close association with that office, state troopers are potential candidates for county sheriff. Like any election contest, those for county sheriff are often heated with each candidate critical of the other’s record. The prospect that a state trooper may run against him, the actual experience of opposing a state trooper, the irritation of working with a former opponent — these factors can only be unsettling to a sheriff’s department with which the highway patrol is seeking to have close rapport. It cannot be expected the sheriff will welcome the trooper as a guest in his facility if the guest has in mind becoming the host.
Election contests between state troopers and other law enforcement officials do not threaten the public welfare in the same way or degree as those between state troopers and sheriffs. These problems are unique and impinge on the very efficacy of the highway patrol. No other groups are similarly situated. Consequently, the “resign-to-run” rule, in distinguishing troopers from other law enforcement officers running for the office of county sheriff, has a rational basis and supports a compelling state interest.
The majority admits the validity of this distinction but contends the restrictions placed on a trooper’s right to run for the office of sheriff must be the least restrictive means to achieve the recognized goal of harmonious relations between the two law enforcement groups. Balancing the individual’s interests against the state’s,, they conclude an unpaid leave of absence is all the state justifiably can demand of a trooper running for office. It seems to me, however, that giving the trooper an unpaid leave of absence fails to protect the state’s interests. If the trooper can take an unpaid leave of absence, he is even more likely to be a sheriff’s rival, as the sheriff will quickly perceive. This alone can cause mischief. And if the trooper runs for election, loses, and stays in the community to run again, the harm is exacerbated. The fact the trooper may have conducted his campaign during a leave of absence rather than in a retirement status lessens the harm not at all.
Nor do I think a first amendment approach alters the case. From the state’s *386standpoint, the resign-to-run rule denies the public easy access to the highway patrol as a pool for experienced candidates for sheriff, but this restriction is justified by the public’s compelling interest in promoting cooperation and harmony between the two agencies. Prom the trooper’s standpoint, the rule impairs the trooper’s right to vote for himself and of others to vote for him. Nevertheless, the right to run for office has not been held to be a fundamental right, and here, where core first amendment rights are not involved (the trooper is still free otherwise to be active politically), any infringement on the right to run for office has been subjected only to close, not strict, scrutiny. Bullock v. Carter, 405 U.S. 134, 146, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1973); Morial v. Judiciary Commission of the State of Louisiana, 565 F.2d 295, 301-02 (5th Cir.1977). See also Johnson v. State Civil Service Department, 280 Minn. 61, 157 N.W.2d 747 (1968), where we upheld, against a first amendment attack, a state statute requiring classified state employees to resign upon filing for public office.
Applying close scrutiny, the Supreme Court upheld the Hatch Act in the face of numerous challenges, stating that Congress had the power to proscribe all partisan political activity by federal employees, including running for public office. United States Civil Service Comm. v. National Ass’n of Letter Carriers, 413 U.S. 548, 556, 93 S.Ct. 2880, 2886, 37 L.Ed.2d 796 (1973). A state rule demanding judges resign before running for nonjudicial office was upheld under similar scrutiny in Morial. Michigan also requires its state patrol officers to resign before running for sheriff, as permitted under Mich.Stat.Ann. § 28.10 (1978).
The majority cites no case to the contrary, relying instead on Illinois State Board of Elections v. Socialist Workers, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), a decision that did not involve a resign-to-run rule. There an anomaly in the state election code resulted in a new party or an independent candidate needing more signatures to get on the ballot for a Chicago city election than for a statewide election. The state was unable to show any compelling reason why this should be so, and it was held, insofar as the number of signatures required to get on the ballot in Chicago, that equal protection required the least drastic means to be used for access to the ballot and that the state could require no more signatures for a city election than a statewide election. But as Justice Black-mun says in his concurring opinion in Illinois State Board of Elections, the formula of “least drastic [or restrictive] means” is “a slippery slope” and not always helpful. Here, for example, it might be said giving the trooper who resigns a qualified right to return to the patrol is the least drastic approach. But more to the point, while the alternative of an unpaid leave of absence is plainly much less restrictive, it is also no means at all to the end to be achieved. If the public interest in preserving the integrity of the civil service system is sufficient to keep a federal employee from participating in any partisan political activity, it would seem the state’s interest in preserving the integrity of its highway patrol is sufficiently compelling to justify the less drastic resign-to-run rule. In this context, the test is more properly whether, in light of the rights affected, the resign-to-run rule is reasonably tailored to the state’s legitimate interest. Morial v. Judiciary Commission of the State of Louisiana, 565 F.2d 295, 302 (5th Cir.1977).
We must look, then, at the rule. The trooper who resigns may rejoin within 1 year if there is an opening. He loses seniority, which affects overtime assignments, vacation and transfer rights. If he does return to the patrol, he must be assigned to a new post and pay his own moving expenses. These are hard conditions, but they must be if the potential for rivalry with the sheriff’s office is to be meaningfully curtailed. Even so, the rule is not as onerous as the resign-to-run rule upheld in Louisiana where a judge who resigns to run for mayor has not even a qualified right to return to his judicial position. Morial, supra.
*387While it may be unnecessarily harsh to require a trooper to pay his own moving expenses to a new post, this item does not rise to the stature of a constitutional infirmity. This seems to me one of the details to be resolved at the bargaining table, and it is of some significance that, in its last round of contract bargaining, the officers’ association did not attempt to change the resign-to-run rule in any respect.
The only issue before us is the validity of the resign-to-run rule as it applies to troopers running for the office of local sheriff. The patrol chief’s policy order, however, indicates he might apply the resign-to-run rule to other full-time elective offices or for the state legislature. I would have trouble with the rule if so applied, for the underlying considerations would then be different. See Mancuso v. Taft, 476 F.2d 187 (1st Cir. 1973). But here I do not consider application of the rule unconstitutional and would affirm the lower court.