The opinion
Brooke, J.
(dissenting). In this proceeding a very unusual and remarkable situation is presented. Petitioners, themselves duly nominated for office at a primary upon the Republican ticket, and, therefore, sure of their own positions upon the official ballot, seek by mandatory injunction to prevent the board of election commissioners from placing upon said ballot the names of the men nominated at the same primary upon the democratic and progressive tickets. I am of opinion that it may well be doubted whether petitioners have shown that they have such an interest in the matter as entitles them to interfere. This interest is not in themselves getting upon the official ballot, that right is already secured to them, but they, as the properly qualified nominees of one party, seek to inquire into the legality of the nomination of their opponents by other parties, and, through such inquiry, prevent the printing of the names of any candidates of opposing parties upon the official ballot. Can it be said that their right to a position upon a “legal ballot” is such as to clothe them with the power to intervene as individuals for such a purpose ? My Brethren are of opinion that they have such an interest. I think it is at least open to grave question. Petitioners say that the said board has declared its intention to place the names of their opponents upon the official ballot, and that, unless restrained, it will do so. They aver that such action- would be unlawful, and, as authority for their position, they point to section 37 of *483 the so-ealled primary law (Act No. 281, Pub. Acts 1909, as amended), which provides:
“That no candidate for any city, county, district or State office shall be deemed nominated and no certificate of nomination shall be given to any person whose political party with which he is enrolled casts at such primary election less than fifteen per centum of the vote cast by such political party for Secretary of State at the last preceding biennial or November election; and in such case such political party shall not be entitled to have the names of any candidates printed upon the official election ballot.”
It is admitted that the nominees of the Democratic and Progressive parties did not receive at the primary in question votes equal in number to 15 per cent, of the vote cast by either party at the election in November, 1912, if, by that is meant, that “the party ” cast all the votes received by the candidates for the office of secretary of State running upon the respective tickets. This is the construction placed upon the section by the petitioners, and doubtless the construction intended by the legislature. If the contention of petitioners is sound, and it would appear to be so if the section in question can be sustained, a very remarkable situation would ensue. Petitioners alone would be entitled to a place upon the official ballot, and the nominees of the other political parties could only be voted for at the election by the laborious process of writing their names upon the ballot in the booth. This method of voting is not only slow, but requires a considerable degree of education and intelligence. It is also likely to result, through misspelling of names or other error or omission, in partially or wholly disfranchising the voter. It is in my opinion idle to say that a law which imposes such a handicap upon a portion (in this instance more than one-half) of the electors is either reasonable, uniform, or impartial. To say that the elector can still vote, and that it is only a little harder for him to do so, and therefore that he is denied no constitutional right, is a mockery. In crowded precincts the time re *484 quired by each voter to write in all the names of his party candidates would alone undoubtedly result in the disfranchisement of many. Each elector is entitled to express his choice at the election with the same facility enjoyed by any of his fellows. The constitutional warrant for the enactment of the section in question must be found, if at all, in section 8, art. 3, which reads:
“Laws shall be passed to preserve the purity of elections and guard against the abuses of the elective franchise.”
I am unable to see how section 37 tends in any degree to either preserve the purity of elections or guard against abuse. It is said its purpose was to stimulate interest in party primaries. Its effect is to compel the attendance at the primaries of a certain percentage of each political party. Failure to observe the mandate penalizes the offending party by placing it under a disability with the result that its members suffer a serious impairment of their right to freely exercise the elective franchise. In his opinion Mr. Justice Bibd says:
“ The test is, then, whether section 37 destroys the elective franchise or simply regulates it. If it destroys, it is our duty to declare it void. If it merely regulates, our duty is to declare it valid and relief from its effects must be found in the legislature.”
It is in this position that I am unable to agree with my Brethren. Under the guise of regulation, it is not competent for the legislature to enact laws which seriously impair the right to the elective franchise. It is not necessary that the legislation should go to the extent of absolute denial or complete destruction in order that constitutional safeguards may be invoked. No one would contend that, in the concrete instance before the court, the operation of the act in question is not such as to most seriously impair that right. As was said by Mr. Justice Campbell, in Attorney General v. Detroit Common Council, 58 Mich. 216 ( 24 N. W. 889 , 55 Am.. Rep. 675):
“There is nothing in the Constitution which permits *485 the legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise.”
See, also, Dapper v. Smith, 138 Mich. 104 (101 N. W 60). The methods used by parties to select their candidates for office were formerly considered matters of interest to the members of the parties only. Latterly legislatures have undertaken, by means of primary laws, to determine exactly how partisan nominations shall be made. Conceding that this is a proper field for legislative enactment, the power to regulate must certainly be exercised in such manner as will secure to the elector his full and unrestricted right of franchise. The right of all political parties to freely nominate their candidates for office is fundamental.
I am of opinion that section 37 imposes an unlawful and unreasonable restriction upon the right of parties to select candidates, and that it should, therefore, be held unconstitutional and void.
The order denying the mandamus should be affirmed.
McAlvay, J., concurred with Brooke, J. Steere, C. J., and Moore, J., did not sit.