I concur. It is not the duty, and, in my opinion, not the proper function, of the state to furnish information to voters as to the party connections or political proclivities of the candidates whose names appear upon the official ballot. The task of supplying that character of information is one which might with perfect justice and much greater wisdom be left to other agencies. But when the state does assume in its legislation the necessity or utility of printing upon the face of the ballot a statement showing what parties have nominated the several candidates, that statement should contain the whole truth, and, above all things, it should not be made obligatory upon the officials charged with the duty of preparing the ballot to print on its face the false statement that a party which has made a nomination for a particular office has in fact made no nomination. Such a provision is a plain violation of the principle upon which the statute is framed. The voters of the state, or certain classes of voters, either need or do not need the information. If they do not need it, there should be no pretense of *Page 487 giving it; if they do need it, there should be no perversion or suppression of the truth. The existing law assumes that the information is needed, but commands its agents to furnish false information. What is the motive or policy which requires the names of party candidates to be printed upon a distinctive party ticket? Evidently, it is intended as a guide to those voters who, being personally ignorant of the merits or qualifications of the rival candidates, would exercise their choice in favor of the candidate named by their party convention. The law itself assumes the existence of such a class of voters, and in the nature of things the class must be a large one. To deprive one candidate of the votes he should receive from this class of voters by making the ballot declare that his party has made no nomination is an injustice to him and to the electors of his party. The right to be chosen to a public office is as much a constitutional right as the right of suffrage, and to deprive any person possessing the constitutional qualifications for office of the opportunity of competing with other candidates upon equal terms is a denial of his constitutional rights. Each competitor is entitled to receive, not only the votes of every elector who supports him upon the ground of personal preference, but of all who would support him as their party nominee. And if the same person is nominated by more than one party, he has the same right to have that fact appear upon the ballot as other candidates have to appear as the nominees of one party.
The rights of the electors are the same as the rights of the candidates, and the rights of the parties spring from the rights of the electors.
All our election laws recognize in their substance and spirit that the only effective political action under a free constitution is that which is exercised by combination of voters through the medium of party organization, and it follows that any discrimination against parties or their candidates is a discrimination against the electors composing the party.
These considerations condemn the provision here assailed, and they condemn it upon constitutional grounds. In the case of Eatonv. Brown, 96 Cal. 375,1 this court said of a similar provision in an earlier statute: "Upon these grounds *Page 488 we hold that this provision destroys the just and equal and uniform operation which in an election law, of all others, is demanded, no less by the express terms of our fundamental law than by the genius and spirit of our institutions."
The law there under consideration gave an opportunity to every elector to cast his vote for the candidates of his choice, but it subjected certain classes of voters to the alternative of partial disfranchisement, or to the risk of total disfranchisement, unless they marked their ballots in a different and more inconvenient method than that prescribed for other classes of voters. This would have constituted no valid objection to the law in the estimation of the judges who concurred in the decisions cited from the supreme courts of Michigan, Ohio, and Wisconsin, and referred to in Justice Henshaw's opinion, all of which proceed upon the principle that an election law is not unconstitutional if it gives every elector an opportunity of expressing his choice, although as between different classes of electors it may give some a better opportunity than it allows to others; or, in other words, it is open to no constitutional objection if, while assuming the necessity of imparting certain information to the voters, it gives correct information to some and false information to others. Those decisions also are partly based upon the absence of any constitutional provision expressly granting to candidates the right to have their names printed more than once on the official ballot. I have not taken the time to look up the date of the adoption of the constitutions under which those cases arose, but if, like our own, they were adopted long before the official ballot was heard of, it is not strange that they contain no provisions regulating its form or contents. Certainly it is a circumstance of no importance that no specific provisions on the subject are to be found in our constitution if, as held in Eaton v. Brown, 96 Cal. 371,1 and Britton v. ElectionCommissioners, 129 Cal. 337, its general provisions in regard to uniformity of operation of laws are broad enough to embrace such discriminations as were there condemned.
For these reasons, as well as for the reasons stated by Justice Henshaw, I concur in the judgment awarding a peremptory writ.
Harrison, J., dissented.
1 31 Am. St. Rep. 225. *Page 489