In New Jersey, a new political party called the Moderate Party is challenging the state’s ban on fusion voting. The New Jersey Supreme Court is currently considering whether to hear this challenge. The bipartisan ABA Task Force on American Democracy, on which I served, recommended that states eliminate their bans on fusion voting, among other political reforms the Task Force endorsed.

I’ve published an essay in the NJ Law Journal, available at Law.com, arguing that the New Jersey Supreme Court should strike down the state’s ban on fusion voting. If there is a significant center of the electorate that currently feels unrepresented with the choices the major parties represent, fusion is one way those voters would be able to express their preferences. Here’s an excerpt:

The power of fusion lies in its ability to give voters a chance to express their preferences for policies that the two major parties are not providing. In many elections, voters feel they are faced with two extreme options on election day, given the way the current primary structure works. Fusion solves the wasted vote and spoiler dilemmas that otherwise plague third parties. It allows people to “vote their values” by casting their vote under a party label that better reflects their views. But voters can do so while also voting for a viable candidate that one of the two major parties also nominates. This dynamic supports the two-party system, while still giving voters more options and greater voice.

For example, suppose a significant number of Democrats or Republicans think their party is too extreme. They can form a third party; let’s call it the Center Party. If the Democratic (or Republican) Party agrees to fuse with the Center Party, voters could vote for the Democratic (or Republican) candidate but on the ballot line for the Center Party. If the Democratic (or Republican) candidate wins the election, but sees that 30% of its vote came from voters voting for the Center Party, that candidate will understand that a significant percentage of his or her support came from voters who preferred the Center party’s policies. Public opinion polls might provide similar information, but actual votes carry much more weight and are a more meaningful figure to officeholders.

Throughout the 19th and early 20th centuries, fusion was fully legal and common in the United States, including in New Jersey. But the two major parties shared a common self-interest in banning fusion, because it permitted other parties to flourish, rather than their only realistic option being to vote for one of the major parties. Thus, state legislatures in nearly all states passed laws banning fusion. As a result, significant third parties largely disappeared. Without fusion, it is too costly for candidates and voters to support a third party that might raise issues the major parties are ignoring; votes for a third party take away votes from the major parties and might turn the election to a major-party candidate who would be anathema to the voter.

State legislatures, controlled by the major parties, are not likely to repeal the bans on fusion. Thus, citizens who want to be able to support third-party candidates have turned to the courts. That brings us to this particular moment in New Jersey….

A ban on fusion denies members of a political party the ability to nominate the candidate they most prefer. If a major party has nominated that candidate, the fusion ban denies a smaller party the right to join with that major party in nominating the same candidate. Yet denying a party the right to nominate its preferred candidate is a severe burden on the rights of party members; there are few issues more central to a political party than who its standard bearer will be. The party’s candidates represent to voters “who” the party is and what it stands for. The New Jersey Supreme Court should agree to hear this case and address these significant issues under the New Jersey constitution.

The litigation in New Jersey to end the state’s ban on fusion voting has drawn bipartisan support from significant quarters. Former New Jersey Governors Jon Corzine and Christine Todd Whitman in a recent Gannett op-ed endorsed eliminating the state’s ban on fusion voting. Similarly, three distinguished scholars from Rutgers, in the New Jersey Monitor, also called for an end to the ban on fusion.

Fusion is not a magic bullet, but it offers the promise of helping to bridge some of the extreme divides of our politics. If there is some common ground between independent, conservative and liberal voters, fusion would help unearth that common ground in the place it matters most, the voting booth. If the major parties are pressed to recognize through fusion that a significant bloc of voters prefer something other than what the major party candidates are offering, that would create pressure for the major parties to be more responsive to the concerns of more voters.

The ABA Task Force recommends fusing voting as one means to make the political process more responsive to voters. The only practical path to ending the ban on fusion voting is through state court constitutional litigation. The New Jersey Supreme Court has an important opportunity to recognize that the self-interested bans on fusion voting the major parties enacted a hundred or more years ago violate the constitutional rights of voters to have a full and free choice of the candidates and the parties they prefer to support.