The opinion
*735 TOBRINER, J.
I dissent.
The majority dismiss the instant case at this stage of the proceedings only by blinding themselves to the obvious, universally recognized truth that a candidate is advantaged by having his name placed first on the ballot. The numerous courts of our sister states which have addressed similar claims have regularly acknowledged that “[i]t is a commonly known and accepted fact that in an election, either primary or general, where a number of candidates or nominees for the same office are before the electorate, those whose names appear at the head of the list have a distinct advantage.” (Elliott v. Secretary of State (1940) 295 Mich. 245, 249 [ 294 N.W. 171, 173 ]; see Kautenburger v. Jackson (1958) 85 Ariz. 128, 130-131 [ 333 P.2d 293, 295 ]; Holtzman v. Power (1970) 62 Misc.2d 1020, 1023 [ 313 N.Y.S.2d 904, 907 ].) Virtually all of the published empirical data available directly supports this common sense proposition. (See, e.g., Bain & Hecock, Ballot Position and Voter's Choice (1957); J. Mueller, Reason and Caprice: Ballot Patterns in California (1965); Scott, California Ballot Position Statutes: An Unconstitutional Advantage to Incumbents (1972) 45 So.Cal.L.Rev. 365; Masterman, The Effect of the “Donkey Vote” on the House of Representatives (1964) 10 Austl.J. Pol. & Hist. 221.) Under these circumstances, I believe this court, pursuant to Evidence Code, section 452, subdivisions (g) and (h), should take judicial notice of the advantage accruing to a candidate placed first on the ballot. Consequently, I would retain the case and decide the important constitutional question it presents.
Nearly one hundred years ago, Justice Stephen Field observed: “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.” (Ho Ah Kow v. Nunan (D.Cal. 1879) 12 Fed. Cas. 252, 255 [ 5 Sawy. 552 ].) With all due respect, I believe the majority, by their instant action, ignores this sage advice.