(concurring in part and dissenting in part).
I respectfully dissent from the Decision and Order entered in these actions by the majority members of this Court.
Although the issues presented in these actions have been stated in the majority opinion, I deem it necessary for the purpose of this dissenting opinion, and even at the risk of some repetition, to again state the issues and contentions of the parties made as to the unconstitutionality of the Ohio election laws as this dissenting member sees them.
This Court is confronted with two principal issues: The right of plaintiffs (1) to obtain a position on the Ohio ballot, and, (2) to write in the names of candidates in Ohio elections. Although the majority opinion deals specifically with the political party qualification statute1 and the write-in statutes,2 the pleadings in these actions put in issue the constitutionality of the many provisions of Title 35 of the Ohio Revised Code which govern and prescribe the qualification of political parties, the certification of the names of party and independent candidates on the ballot and the conditions and circumstances under which the name of a candidate may be written in on a ballot in a primary and/or a general election.
In both actions plaintiffs’ assertions are fundamentally similar. In essence, they are as follows:
(1) The Ohio election laws, and specifically Section 3517.01, impose such prohibitive qualification standards that the Socialist Labor Party and the American Independent Party and their candidates for President and Vice President of the United States and state offices are and will continue to be excluded from the presidential ballot and the state ballot, and that there is a resultant monopoly of political power in Ohio by the Democratic and Republican parties.
(2) The Ohio election laws deny all citizens of the United States the right to become candidates for the offices of President and Vice President of the United States or for presidential electors in Ohio unless they seek office as members of the Democratic or Republican parties, and these laws further deny Ohio electors the right to nominate independent or minority party candidates for these offices unless they are so politically affiliated.
(3) The Ohio election laws are arbitrary, capricious, unreasonable, and discriminatory, and disenfranchise them and preclude them from competing with the Democratic and Republican parties for the votes of Ohio electors.
(4) The Ohio election laws make it virtually impossible for any citizen to get his name on the Ohio presidential ballot or the state office ballot unless he is a member and a candidate of the Democratic and Republican parties.
(5) Only the Democratic and Republican parties are presently recognized as “political parties” under present Ohio law and these parties alone may participate in primary elections. Although Section 3513.14, Ohio Rev.Code, provides for a limited write-in of candidates, there is no provision for write-in of candidates for presidential electors. In general, and for all practical purposes, the election laws deny every group of voters or political organization the right to participate in Ohio primary elections or nominate candidates unless the electors are members of the Democratic or Republican parties in the State of Ohio.
*994It is necessary to review those sections of the Ohio election laws — past and present — which are directly concerned with and bear upon the constitutional questions involved as I have defined these questions hereinbefore.
Prior to 1948, there were three methods in Ohio by which a candidate for political office and his supporters could participate in the electoral process. First, a candidate could have been nominated as an independent candidate by a nominating petition and obtain a position on the ballot. Second, write-in voting was permitted for those electors whose candidate did not appear by name on the ballot. Third, the candidate could have been nominated by a political party in a primary election and obtain a position on the ballot for the general election.
The first method — that of nomination as an independent candidate by nominating petitions — required a candidate to file petitions signed by qualified electors not less in number than one (1) per cent of the voters in the next preceding general election, Gen.Code of Ohio, § 4785-91, not later than sixty (60) days prior to the election. Gen.Code of Ohio, § 4785-92. • These provisions applied to candidates for all offices, including those seeking election as presidential electors, Ohio Gen.Code Ann., §§ 4999, 5000; and Gen.Code of Ohio, § 4785-107.
During the fifteen year period prior to 1947, participation in the electoral process by independently nominated candidates was neither substantial nor disruptive.3 Nevertheless in that year the Chio General Assembly began a series of changes in the election laws which ultimately resulted in the complete elimination of independent and third party voters and candidates from Ohio’s political arena.
Effective January 1, 1948, Section 4785-107 4 was amended to provide that the presidential ballot would contain only the names of candidates for those offices nominated by national conventions of political parties and the reference to nominees by petition was deleted. Following State ex rel. Beck v. Hummel, 150 Ohio St. 127, 80 N.E.2d 899 (1948), which nullified the effect of that amendment, the Ohio General Assembly amended the provision regulating nomination by petition by excepting candidates for presidential electors from its coverage, effective November 1, 1949. Following this the Ohio General Assembly raised the percentage requirement for nominating petitions of independent candidates for all other state and national offices from one (1) per cent to seven (7) per cent and required that the petitions be filed ninety (90) days before the primary election rather than sixty (60) days before the general election.5
Effective January 1, 1952, the second method of participation in the electoral process — that of write-in voting — was foreclosed by statutory enactments banning the write-in vote.6
While the Ohio laws relating to qualification as a political party and thus eligibility to participate in the primary election process did not change during the period between 1948-52, the changes that did occur in other statutes focused attention on these sections. The amendments prohibiting nomination by petition of president, vice president, and their electors left only the primary election method open to prospective candidates.
To engage in the primary electoral process a new political party must first comply with Section 3517.01, which defines “political party.” In its essential provisions it defines a political party to be: (1) any group of voters which polled ten (10) per cent of the vote in the last preceding election for its candidate for governor, or (2) any group of voters who have filed with the secretary of state, at least ninety (90) days before an election, a petition signed by not fewer than *995fifteen (15) per cent of the total number of voters in the last preceding regular state election. This year the required number of signatures is 433,100. In 1953, 540,766 signatures would have been required.
However, even filing a petition with the number of signatures required by the statute is not sufficient to obtain a position on the ballot for the candidates of a new political party. Inextricably interwoven with Section 3517.01 are many provisions regulating the organization and procedures of political parties in this state. First, at the primary election, the new party, or any political party, is required to elect a state central committee consisting of two members from each congressional district and county central committees for each county in Ohio.7 Second, at the primary election the new party must elect delegates and alternates to a national convention.8 Since Section 3513.19.1, Ohio Rev.Code, prohibits a candidate from seeking the office of delegate to the national convention or committeeman if he voted as a member of a different party at a primary election in the preceding four year period, the new party would be required to have over twelve hundred members who had not previously voted in another party’s primary, and who would be willing to serve as committeemen and delegates. Third, the candidates for nomination in the primary would have to file petitions signed by qualified electors.9 The term “qualified electors’’ is not adequately defined in the Ohio Revised Code,10 but a related section,11 provides that a qualified elector at a primary election of a political party is one who, (1) voted for a majority of that party’s candidates at the last election, or, (2) has never voted in any election before. Since neither of the political party plaintiffs had any candidates at the last preceding regular state election, they would, of necessity, have to seek out members who had never voted before to sign the nominating petitions, and it would be only these persons who could vote in the primary election of the new party.
The immediate effect — as well as the obvious purpose — of this statutory scheme is the elimination of third party and independent candidates from Ohio elections. The resultant effect is the denial of the right of suffrage to those who would support such candidates. The Ohio legislature — composed entirely of major party members — was eminently successful in erecting a statutory fortress of political party exclusivity. The “two party system” is not a cliche in Ohio, but a statutorily enforced fact.
The concern here is with political rights and not political questions. These rights include the right to vote for presidential electors,12 the right to choose Senators13 and Congressmen14 and the right of persons to form political parties and seek political office.15
“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964). Included in the right to vote is the right to have that vote counted, United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and the right to nominate candidates for public office, State ex rel. Holliday v. O’Leary, 43 Mont. 157, 115 P. 204 (1911). To say that voters are free to vote for nominees, “in the choice of which unwarranted restrictions * * * are imposed,” is, indeed, a “hollow mockery.” State ex *996rel. Ragan v. Junkin, 85 Neb. 1, 122 N.W. 473, 475 (1909); and see People ex rel. Hotchkiss v. Smith, 206 N.Y. 231, 99 N.E. 568 (1912), and Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
The right to vote cannot be denied directly, Guinn v. United States, 238 U. S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915), or indirectly, Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); nor can it be denied to “a sector of the population because of the way they may vote.” Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965), and see State ex rel. Beck v. Hummel, 150 Ohio St. 127, 80 N.E.2d 899 (1948).
It cannot be disputed that the State of Ohio has, by its complex statutory scheme, severely limited the right of third party and independent candidates to stand for election to public office and particularly the office of President of the United States. By so doing the State has effectively disenfranchised those who would support such candidates by their votes. Because the right to vote is entitled to protection against “sophisticated as well as simple-minded modes of discrimination,” Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), and because “Constitutional rights would be of little value,” Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), if they could be “manipulated out of existence,” Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the statutory scheme must fall.
While conceding that the state has a legitimate interest in, and a right to, an effective and efficient electoral process, thus giving the state the right to impose reasonable restrictions for legitimate purposes after due consideration of cost, convenience, and administrative burdens, we cannot ignore the principle that:
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964).
It is clear that the right of suffrage is subject only to the imposition of state standards which are not discriminatory. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). The United States Supreme Court has recognized the power of the state to impose reasonable qualifications and restrictions, but has declared that these had to be established on a nondiscriminatory basis and that the classifications drawn into the statutes had to be reasonable in light of their purpose. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). “We deal here with matters close to the core of our constitutional system.” Carrington, at 96, 85 S.Ct. at 780. The right to choose that courts have been so zealous to protect means at the least that states may not casually deprive a class of individuals of the vote or the right of an individual to seek political office because of some remote administrative benefit to the state.
The express and unequivocal position taken by the courts is that any restriction on the right to vote must be closely scrutinized to insure that such restrictions are reasonable, non-discriminatory, and necessary. As evidenced both on the face of these statutes as well as in their operational effect, the restrictions imposed by the Ohio election laws do not meet these standards. The scheme of the Ohio legislature — to monopolize political power in the two major political parties — is plain. Not content with passing a series of laws which make it virtually impossible for third party candidates to place their names on the ballot, the Ohio General Assembly at the same time enacted statutes which effectively banned write-in voting, so as to insure *997the complete elimination of the right to vote for any candidate other than those offered by the two major parties. The history of the limited participation of minority parties in the past, and the lack of any showing of an administrative burden or necessity is a clear indication that the denial of the right to write in the name of the candidate of one’s choice, when coupled with the effective denial of ballot position, amounts to an intentional denial of the plaintiffs’ constitutionally protected right to vote. This denial is as much a denial of the plaintiffs’ right to vote as those which the Supreme Court struck down in Gomillion v. Lightfoot,16 Smith v. Allwright,17 Baker v. Carr,18 and Carrington v. Rash19 These restrictions on the availability of ballot position and the denial of the write-in vote are violative of the equal protection clause of the Fourteenth Amendment and are thus constitutionally impermissible.
Having shown that the Ohio election laws, insofar as they prevent the qualification of new political parties, prohibit minority participation in the electoral process, and deprive plaintiffs and the class they represent of their right of suffrage, are unconstitutional and void, the plaintiffs are entitled to immediate equitable relief. In such a case, the Supreme Court demands that relief be provided.
It is enough to say now that, once a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in, not taking appropriate action to insure that no further elections are conducted, under the invalid plan. Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964).
If the duty to provide relief is imposed in a reapportionment case which involves the dilution of the value of a vote, the duty is even more compellingly imposed in these cases which involve the outright denial of the right to vote.
There can be no doubt about the power of this Court to provide the necessary remedy. The recent reapportionment, school desegregation and voter discrimination cases, Reynolds v. Sims, supra; Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965); United States v. Duke, 332 F.2d 759 (5th Cir. 1964), inter alia, illustrate the broad range of relief which a federal court may fashion when there has been a denial of a constitutionally protected right.
Nor do these actions present “the unusual case” referred to in Reynolds. The forthcoming election is not so imminent as to prevent the placing of another name on the Presidential ballot. Nor will the mechanics and complexities of the state’s electoral process be disrupted. Indeed, present Ohio law provides for changes on ballots as late as ten (10) days before an election.20
The Socialist Labor Party is a political organization of adequate form, but no substance. While it has existed in Ohio for many years and has nominated candidates for public office in prior elections, it is not presently composed of any remotely substantial group of electors. Upon facts established in the Socialist action, it appears that in 1966 this party could claim a membership of only one hundred eight (108) persons. Even under constitutionally permissible standards this party could not demand ballot position. For this reason I would deny the Socialist Labor Party ballot position for the forthcoming election. I concur in the relief afforded these plaintiffs as limited to write-in voting.
On the other hand, the Wallace organization has secured in excess of 450,-000 signatures of Ohio electors who seek to place the Wallace American Independ*998ent Party and its candidates on the Presidential ballot in the forthcoming election.
Even allowing for the usual percentage of invalid signatures, such a substantial group of Ohio electors cannot be turned away with the remedy of write-in voting. This Court should not relegate the thousands of people in this group to the status of second class electors by saying to them: “Your choice may be written in, but your choice may not be on the ballot.” This is not equal opportunity.
Clearly, it'is not the function of this Court to inquire into or consider how, when and by what means a political organization was formed. We are not concerned with the political objectives of the Wallace American Independent Party or its life expectancy. Rather we are concerned only with the right of several hundred thousand electors to participate in Ohio’s electoral process on a basis of complete equality with the members of the two major parties. This equality— and there can be no doubt that this equality is guaranteed under the United States Constitution — is not satisfied with write-in voting; it plainly requires ballot position for this party and its candidates.
. Ohio Rev.Code, § 3517.01.
. Ohio Rev.Code, §§ 3505.03, 3505.04, 3505.10, 3505.23 and 3513.14.
. Ohio Election Statistics, Ted W. Brown, 1965-66.
. Codified as Ohio Rev.Code, § 3505.10.
. Ohio Rev.Code, §§ 3513.25.7, 3513.25.8.
. See footnote 2.
. Ohio Rev.Code, §§ 3517.02-.04.
. Ohio Rev.Code, § 3505.10.
. Ohio Rev.Code, § 3513.05.
. Ohio Rev.Code, § 3501.01(H).
. Ohio Rev.Code, § 3513.19.
. U.S.Const. art. II, § 1.
. U.S.Const. amend. XVII.
. U.S.Const. art. I, § 2.
. U.S.Const. amend. I.
. 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
. 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1949).
. 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
. 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).
. Ohio Rev.Code, § 3505.01.