The opinion
GAROUTTE, J., dissenting.
I dissent. In the Australian ballot law a declaration is found defining what constitutes a political party within the purview of the act; and then it is further declared that those parties 'are entitled to hold political conventions and nominate candidates for office. The vital element going to make up a political party under that act is that it shall have polled three per cent of the entire vote cast at the last election. The primary law does not attempt to define the phrase “political parties,” but declares that only those political parties which polled three per cent of the total vote east at the last election shall participate in primary elections. In other words, this is a declaration that only those political parties which are entitled to hold conventions and nominate candidates for office under the Australian ballot law are entitled to hold primary elections. It is thus apparent that the primary law refers to a great class of political parties. And if the political parties declared and recognized by the Australian ballot law form a constitutional class, then the primary law in dealing with that class of political parties is likewise constitutional. While the question has never been decided in this state, it has been decided
in
other states, and held, that a classification of parties upon the|' basis of a certain percentage of the total vote cast at the lash election is not violative of constitutional provisions. Indeed,
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it seems to me that
the
declaration of the state legislature found in the Australian ballot law as to what shall constitute a political party within the meaning of that act is constitutional legis-1 lation. For these reasons I do not deem the three per cent clause of the primary election law obnoxious to the constitution of this state. It may be further suggested that as the Australian ballot law does not recognize an organization as a party, which failed to poll three per cent of the total vote cast at the last election, no substantial benefits could be derived by such a party in participating in primary elections; for the nominees of a convention composed of delegates selected at the primary election by such party would not be entitled to a place upon the ballot. It must be borne in mind always that the primary law in this regard is not dealing with voters as individuals, but with political parties as such. If the declaration found in the present Australian ballot law, defining what shall constitute a political party, had been in that law at the time
Eaton v. Brown,
96 Cal. 371 , was decided, I am not prepared to say that my views as there expressed would have been the same.
It may be further suggested that under the present law, the ballot being entirely secret, and every voter being allowed to cast his vote for the delegates of any party represented upon the ballot, the result is that Democratic voters may elect delegates (to Republican conventions, and Republican voters may elect delegates to Democratic conventions, and thereby absolutely own and control the conventions of opposing political parties. I am not prepared to say that the existence of these conditions clearly renders a law unconstitutional which permits it. But I am prepared to say that a law of that character presents a most anomalous state of affairs.