I dissent from the conclusion declared in this case. Nearly three fourths of the states of this Union at the present time conduct their elections under some modified form of the Australian ballot law. In every one of those states a provision is found in the law similar to that which is here declared unconstitutional. It is thus apparent that the importance of the provision is recognized and established. And every time the validity of that provision has come before the highest courts of the various states it has been declared constitutional; those cases are cited in the main opinion, and are from the highest courts of Michigan, Ohio, and Wisconsin. And in the past few days we read in the public press that this provision of the law has been sustained by the appellate court of Kansas. It appears to be conceded by the main opinion that this provision is not unconstitutional as interfering with the rights of the individual voter, and this concession being made, then, to my mind, there is nothing left in this case. For I do not appreciate the proposition advanced in the main opinion which recognizes that a political party has constitutional rights. I have not been able to find that either the constitution of the state or of the United States in any way refers to political parties. The question here before the court is as to the power of the legislature in prescribing the form of the ballot, and, as intimated in Britton v. Election Commissioners, 129 Cal. 337, heretofore cited, if such had been the question in that case the conclusion would have been the other way. For it is there said: "This is not a mere matter of regulation, as in the case of the election ballot." Here the question is simply a mere matter of regulation as to the form of the election ballot. By this provision of the law all parties are treated alike, all candidates are treated alike, and all voters are treated alike. Under those conditions I do not see how the law can be declared unconstitutional. If the general reasoning found in the main opinion in this case, as well as in the Britton case, be constitutionally sound, then the whole Australian ballot law of this state will be set aside the first time an assault upon constitutional grounds is made upon it. For I find by that law that parties polling *Page 490 less than a certain percentage of the votes cast at the last general election are not entitled to hold conventions and have their candidates go upon the ballot as nominees of those conventions. Under the aforesaid "general reasoning" this character of legislation would be held discriminatory against certain political parties, and therefore unconstitutional.
For the foregoing reasons I dissent from the conclusion declared.