The opinion
CARTER, J.
I dissent.
This case comes to this court upon the question of the correctness of a judgment entered pursuant to an order sus *456 taining a demurrer without leave to amend, to appellants’ complaint challenging the constitutionality of section 2540 of the Elections Code. When reviewing such an order the facts stated in the complaint must be accepted as true for the purposes of appeal. Therefore, for our purposes the question before this court is, assuming the facts to be true, does the complaint state facts sufficient to demonstrate a violation of appellants’ constitutional rights? I believe it does.
Without discussing the facts alleged in the complaint, the majority opinion holds that the Legislature is empowered to establish tests governing the rights of political parties to participate in primary elections. With this holding I am in general agreement. However, from this determination the majority of the court further concludes that the percentage requirements set forth in subdivisions (a), (b) and (c) of section 2540 are reasonable, and therefore, constitutional. In view of the facts as stated in the complaint, I am constrained to disagree with such a conclusion.
Appellant, the Christian Nationalist Party, nominated appellants Gerald L. K. Smith and Charles F. Robertson, as its candidates for the office of President and Vice-President of the United States at the 1956 election. The Secretary of State of California, respondent herein, refused to print on the official ballot the names of the Christian Nationalist Party, Gerald L. K. Smith, Charles F. Robertson or any other candidate for office nominated by appellants, on the ground that they had not complied with the provisions of any of the subdivisions of section 2540 of the Elections Code, and therefore, were not eligible to have their names printed upon the ballot.
Appellants now desire to participate in the 1958 elections as a party, but this right will be denied them because of the provisions of section 2540. It is pointed out that in order to appear on the general election ballot as a party, they must first participate in the primary, and to do this the requirements of section 2540 must be satisfied.
The complaint alleges that appellants are a new political party, and that they can only qualify for the primary under subdivisions (b) and (c) of section 2540. To demonstrate the unreasonableness of these provisions it is alleged that “Until a political party is qualified to have the names of its candidates printed upon the ballot under the designation of said Party’s name, it is substantially impossible to induce any substantial number of electors to register as affiliated *457 with such proposed Party; and such reluctance of electors to register as affiliated with what is not yet qualified as a political party can only be overcome by very extensive— and very expensive—publicity and advertising, in all major newspapers of every large city, and on most of the major radio and television stations; that the cost of such publicity and advertising required to induce electors to register as affiliated with such a proposed political party is in addition to all expenses of the actual political campaign for any primary or general election; that . . . the cost of such publicity and advertising necessary to get the required number of electors to register as affiliated with a proposed new political party would be $100,000.00 or more.” In connection with the requirements of subdivision (c), it is contended that the time limitation renders this alternative unreasonable in addition to the monetary considerations. It is pointed out that based on the figures of the last election 410,000 valid signatures are needed to meet the ten per cent requirement of subdivision (c), and to accomplish this within the time allotted—130 days —an additional $400,000 is needed.
From these facts it is contended that the restrictions imposed by these subdivisions are unreasonable and impossible to satisfy, and thus violate their constitutional rights.
The right being asserted by appellants is that of suffrage. This is a fundamental right inherent in a free government and guaranteed by the Bill of Rights in the Constitution of the United States and by article II, section 1, of the California Constitution. It has been well established that the direct primary is an integral part of the election process, and the right of the electorate to nominate candidates in the primary has become an essential attribute of the right of suffrage (United States v. Classic, 313 U.S. 299 [ 61 S.Ct. 1031 , 85 L.Ed. 1368 ]; Smith v. Allwright, 321 U.S. 649 [ 64 S.Ct. 757 , 88 L.Ed. 987 , 151 A.L.R. 1110 ]; Communist Party v. Peek, 20 Cal.2d 536 [ 127 P.2d 889 ]).
A necessary corollary of the right of the electorate to nominate candidates of their party in the primary election, is the right of political parties to form and participate in elections by running their candidates for political office. The fundamental nature of this right has been affirmed by this court in Socialist Party v. Uhl, 155 Cal. 776 [ 103 P. 181 ], wherein it was stated: “ A political party is an organization of electors believing in certain principles concerning governmental affairs and urging the adoption and execution of *458 those principles through the election of their respective candidates at the polls. The existence of such parties, the dominant party and the parties in opposition to it, lies at the foundation of our government and it is not expressing it too strongly to say that such parties are essential to its very existence.” (Socialist Party v. Uhl, supra, 155 Cal. 776, 793 .)
A recent elaboration of this principle is found in the case of Independent etc. Party v. County Clerks, 31 Cal.2d 549 [ 191 P.2d 6 ]. Defining the nature of a political party’s right to participate in the elective processes, it was stated (p. 552) : ‘ ‘ In any election where the party system furnishes the means by which the citizen’s right of suffrage is made effective, denial of his party’s right to participate in the election accomplishes, in the words of the court in the Britton case, ‘the disfranchisement of voters, or . . . [compels] . . . them, if they vote at all, to vote for representatives of political parties other than that to which they belong. The deprivation of the right of selection is a deprivation of the right of franchise.’ ” (Emphasis added.) From the language of these cases there can be no doubt that the right of a political party to participate in primary elections is one guaranteed by both the federal and California Constitutions.
It does not follow, however, that this right of political parties to participate in elections-, is, in every case, entitled to protection, since the right to vote is not absolute, the state having an interest in keeping elections free from violence and corruption and in providing fair and efficient election procedures. It is only where the state fails to justify the diminishment of such right by a demonstration that the state has an interest paramount to the right, that the state’s restriction will be stricken as violating the Constitution. But when we balance the interest of the state against the constitutional right of political parties to participate in elections, as we must here, we must remain mindful that the latter occupy a preferred position. (See Jones v. Opelika, 316 U.S. 584 [ 62 S.Ct. 1231 , 86 L.Ed. 1691 , 141 A.L.R. 514 ]; Murdock v. Pennsylvania, 319 U.S. 105 [ 63 S.Ct. 870, 891 , 87 L.Ed. 1292 , 146 A.L.R. 81 ].) The right.to exercise freedom of choice in primary and general elections lies at the foundation of free government by free men and we must in all cases “weigh the circumstances and . . . appraise the reasons ... in support of the regulation ... of the right.” (Schneider v. State, 308 U.S. 147, 161 [ 60 S.Ct. 146 , 84 L.Ed. 155 ]; see Marsh *459 v. Alabama, 326 U.S. 501, 509 [ 66 S.Ct. 276 , 90 L.Ed. 265 ]; Communist Party v. Peek, supra, 20 Cal.2d 536, 544, 545 .)
Considering the facts alleged in the complaint as true, it is my opinion that the percentage requirements set forth in section 2540 go beyond the area in which the state may legitimately act in regulating political parties in order to maintain an efficient election system, for the reason that too great a financial burden is placed on new political parties attempting to establish themselves. The constitutional attack on the reasonableness of section 2540, is based primarily on financial factors. The amounts alleged to be necessary to secure a party’s name on the ballot are of sufficient size to bear out the contention of unreasonableness. Certainly there can be little doubt that if a new political party, in order to get on the primary ballot, must spend $100,000, in addition to normal campaign costs, very few, if any, new political parties will be developed in California. This results, therefore, in the exclusion of new political parties in California, not because of a paramount state interest, but because the new political parties lack the funds to enable them to qualify. In other words the effect of the statute does not necessarily exclude unsubstantial parties, but impecunious parties. Whatever may be the right of the Legislature to exclude unsubstantial parties from elections in the name of efficiency, it does not extend to their exclusion on the ground of lack of money (United States v. Classic, supra, 313 U.S. 299 ; Smith v. Allwright, supra, 321 U.S. 649 ; Independent etc. Party v. County Clerks, supra, 31 Cal.2d 549 .) It appears that this is the effect of section 2540.
For the foregoing reasons I would reverse the judgment.
Appellants’ petition for a rehearing was denied December 23, 1957. Carter, J., was of the opinion that the petition should be granted.