Tag Archives: Fusion

Fusion and the Freedom to Associate to a Better Politics–New Jersey’s Highest Court Has A One-Time Opportunity

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A bipartisan ABA Task Force on American Democracy recently endorsed the relegalization of fusion voting as a political reform with significant potential “to combat hyper-partisan polarization and the gridlock in governance that such polarization produces.” State courts have a one-time opportunity to make this happen with legal challenges to existing fusion bans pending in New Jersey, Kansas, and Wisconsin. And New Jersey’s highest court has the opportunity to lead the way. But these courts will have to be persuaded that intervention would be a genuine vindication of individual rights, not an instance of judicial activism in favor of a different set of, admittedly, better election rules.

In Fusion and the Freedom to Associate to a Better Politics, recently presented at a symposium of the Kansas Law Review, and now posted on SSRN, Michael L. Thomas, Jr. and I explain how courts should understand the constitutional burdens of anti-fusion laws and why the analysis in Timmons v. Twin Cities Area New Party (1997) is thin and unpersuasive.

The associational lens, we argue, provides the sharpest take on the constitutional harm. In this post, I offer a preview of the argument at its most basic level in the hopes that this will be intriguing enough to encourage people to read the full article.

Anti-fusion laws infringe on a ballot-qualified minor party’s freedom to associate with its top-choice candidate.

Anti-fusion laws block minor parties from nominating (associating) with their preferred candidate when the candidate is also the candidate of a major party. Anti-fusion laws, thus, essentially force ballot-qualified minor parties to run their second-best friend (or no friend at all). This, we argue, is a direct interference with the constitutionally guaranteed freedom of association. Just as each of us treasures whom we associate with, so too a party cares, and has a basic right to choose, who it associates with through its ballot line.

The associational infringements deepen when we consider the rationale: Anti-fusion laws deprive minor parties of the right to run their best friend because, apparently, three is a crowd. Surely, however, if all parties agree to work together, three is not a crowd, but a political alliance.

The state’s move is particularly pernicious if we consider that our system was explicitly designed to ensure that a numeric minority would not be able to exercise political power unless it formed political alliances to ensure majority support. Remember our dear framer, James Madison, in Federalist No. 10.

By preventing minor parties from forming such alliances, anti-fusion laws undercut a minor faction’s only path to political responsiveness: by alliance. Indeed, political alliances through fusion have been the primary way that minor parties have historically vindicated their interests: abolition, maximum hour laws, the Australian ballot and other democratic reforms, to name just a few. Indeed, it was through fusion that the Populist movement reshaped American politics throughout the West in the late nineteenth century.

Anti-fusion laws also infringe the associational freedom of individual voters.

Anti-fusion laws arbitrarily prevent voters from associating with a viable candidate without associating with a major party they despise. Where a state bars fusion, voters who align politically with a minor party are forced to choose between:

  • “wasting” their vote on the minor party’s SECOND-BEST CANDIDATE or
  • casting their vote for A COMPETITIVE CANDIDATE on the line of A MAJOR POLITICAL PARTY, they don’t align with.

A rational voter is going to choose the latter. The only other alternative is to opt out entirely.

Anti-fusion laws thus arbitrarily deprive voters of “[t]he right to associate with the political party of [their] choice;” a right, the Court, in Kusper v. Pontikes (1973), recognized as “an integral part of . . . constitutional freedom.”

Today, these associational burdens fall heaviest on independents, the largest self-identified group in national party identification polling. Fusion, by contrast, allows for a genuine freedom of association. It allows individual voters to associate with their true political allies, while still backing viable candidates. Moreover, by empowering voters to both register for and cast their ballots in support of candidates on the minor party line, it promotes clarity about their preferences in ways that enhance democratic responsiveness and accountability.

Anti-fusion laws also place a direct burden on the ability of ballot-qualified minor parties to manifest their true associational strength.

Anti-fusion laws artificially depress the true associational strength of an already ballot-qualified minor party while hindering its capacity to grow. Anti-fusion laws ensure that election results never accurately reflect the minor party’s real level of support, thereby impeding the ability of political parties to gain supporters (candidates, donors, voters) or form coalitions.

To be clear, the problem is not that fusion gives minor parties a lift up; it is rather that anti-fusion laws artificially depress minor party association.

These are severe burdens on the freedom of association, rendering anti-fusion laws unconstitutional whether a court chooses to apply strict scrutiny or the more forgiving Anderson-Burdick test. The U.S. Supreme Court’s contrary decision in Timmons is based on a misunderstanding of the rights and burdens at stake in these cases.

While the lower courts in the state litigation have followed Timmons’ misguided approach, we hope that state supreme courts will do better. Striking down anti-fusion bans would empower the many in the electorate who feel unrepresented by the two major parties, and offer a realistic opportunity for independent and unaffiliated voters to build political power through non-spoiler minor parties within the confines of the American two-party system. But it would also be legally right: Anti-fusion laws unconstitutionally infringe on fundamental and constitutionally protected rights of political association.

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Thurs & Fri: Univ. of Penn Law Review Multiracial Democracy Symposium 

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You can register for and get more info on the symposium here.  

In light of recent attacks on multiracial democracy, I’m honored to co-organize The Future of Law & Multiracial Democracy Symposium this upcoming Thursday and Friday (October 23-24) in Philadelphia at the University of Pennsylvania Law School.  

We’ll hear from leading thinkers on voting rights, including Guy-Uriel Charles, Torey Dolan, Tabatha Abu El-Haj, Nathan Fleming, Damon Hewitt, Ellen Katz, and Michael Morse.

We’ll also hear from many top scholars in other areas shaping our multiracial democracy, including technology, courts, history and culture, immigration, civil rights, and Diversity, Equity & Inclusion (the full agenda and list of scholars is here).  

The articles from the symposium will be published by the University of Pennsylvania Law Review in 2026. 

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“NJ Moderate Party and Voters Ask State Supreme Court to Take Fusion Voting Case”

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Insider NJ reports that the New Jersey Moderate Party and voters today filed briefs with the NJ Supreme Court asking it to review the constitutionality of New Jersey’s anti-fusion laws. The party argues that the fusion ban violates its right as a political party to associate with the candidate of its choice simply because that candidate has the nomination of another party.

The Moderate Party argue that reviving fusion voting would strengthen the center of our democracy and help counter the threat of authoritarianism caused by the increasing extremism of the major parties:

“The New Jersey Moderate Party wants to reverse the trend of hyper-polarization and the danger it poses to our state and our country. To achieve this objective, we need to identify, nominate, support and help elect viable moderate candidates who will strive to protect the basic foundations of our democracy and are willing to work collegially and respectfully with people of different viewpoints, to achieve sensible solutions to the major issues facing our country. Current New Jersey law bars us from exercising our constitutional rights to do that. We are confident the State Supreme Court will right that wrong.”

Richard Wolfe, a founder of the NJ Moderate Party.

 The NJ Supreme Court will likely decide in the next month whether to take up the case.

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NJ Appellate Court Upholds State’s Ban on Fusion Candidacies

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The New Jersey Appellate Division held that the state’s ban on fusion candidacies does not violate the State Constitution. New Jersey, like other states, prohibits a candidate for public office from appearing on a ballot as the nominee for multiple parties. As elsewhere, New Jersey’s anti-fusion law was passed in the early twentieth century to entrench the major parties’ political power–although the N.J. appellate court appears to have dismissed this history, emphasizing instead its adoption as part of a “broader effort to reform the electoral system” during the Progressive Era. Perhaps unsurprisingly, the court proceeded to uphold the law.

Emphasizing that there was no reason to interpret the N.J. Constitution differently from the U.S. Constitution in this regard, the decision follows the analysis of the widely criticized decision in which the U.S. Supreme Court upheld such laws against a First Amendment challenge, Timmons v. Twin Cities Area New Party, (1997).

The case is part of a larger state court litigation strategy, supported by many scholars, including myself. An appeal is expected.

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Fusion as a Party-Centric Reform to Empower the Center-Right

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What does it take to get a lefty union organizer and former director of the Working Families Party on stage with neo-liberals? Donald Trump. In “The Power of Fusion,” Dan Cantor provides a great overview of how fusion works and how it could empower the center-right. If we care about the future of democracy, he argues, our key goal should be to find a party home for the “politically homeless anti-Trump, pro-Constitution Republicans who continue to stand for democracy and freedom.” They still make up one-fifth of the Republican Party. What they need is a mechanism for leveraging those numbers. Fusion voting is that mechanism. The article is also just a great read.

“But here I was on a panel with a former Joe Manchin staffer and a former executive director of the Michigan GOP. I wasn’t sharing the stage with them because I had altered my views on the policies I’d like to see our government enact. But I’m traveling in more mixed company these days because I’m convinced that the threat of ethnonationalist authoritarianism must take precedence over everything else. My views on Reaganism, Bushism, and neoliberal corporatism haven’t changed, . . . But for the moment, I’m more interested in building bridges than barricades. The only way to defeat authoritarianism is with an electoral coalition that includes the center-right.”

. . . .

“If fusion voting were the norm today, it would provide a way for Republican and unaffiliated moderates and centrists to cast a vote for Biden without endorsing a Democratic party they mostly disagree with. . . . In the current moment, it will force GOP leaders to make a choice: risk more and more defections to a center party currently favoring Democrats, or change your behavior enough to warrant your share of a center party’s nominations. Either outcome should be welcomed by all supporters of pluralism and liberal democracy.”

Disclosure: I serve on the Center for Ballot Freedom’s voluntary Advisory Board and view fusion as a meaningful and achievable party-centric reform worthy of serious consideration for a variety of reasons.

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Third-Party Politics in American History—A Response to Ned Foley

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In The Tyranny of the Two-Party System, Lisa Disch writes that the pervasive narrative that the United States is, and will always be, a two-party system is a product of “a reading of history that selects for continuity.” Indeed, historians Erik B. Alexander and Rachel A. Shelden would absolutely agree with both Disch and the Washington Post’s recent assertion that “[f]or much of U.S. history, there were more than two major political parties.”

The prevalence of third-party politics in American history is far greater than many educated observers of American politics today appreciate. In a fascinating new article, Alexander and Shelden argue that the two-party system remained fluid longer than traditional scholarly accounts suggest. The 1850s certainly did not mark the high water mark for third-party politics in the United States. In 1890, as Disch reminds us, the People’s Party won three gubernatorial races and achieved majorities in seven state legislatures. In Congress, a Populist fusion alliance held fifty-two of the 332 seats in the U.S. Congress and three in the Senate. The People’s Party would continue to be a significant player in American politics through the election of 1896.

Returning to this history teaches us both that minor parties have played an important role in American politics, even when they did not win a majority of offices, and that a fairly modest difference in the election system of the 1800s, the ability of parties to cross-nominate, or “fuse” together on the same candidate, enabled the proliferation of ongoing, minor parties that took their role in the process seriously, frequently parlaying their ability to rally a bloc of like-minded voters into political alliances that changed the course of American history.  At this moment when American politics is failing, it is foolish to dismiss, out of hand, this history of third-party politics in America. It is also a major mistake to suggest that the only role that third parties have played in American politics is a spoiler role.

Winning is not the only way to measure the value of third parties. Beyond the relationship of the Liberty Party, Free Soil Party, and Anti-Nebraska Party to the antislavery movement’s success, I can say, based on my research, that the Populists were key to the passage of the direct primary and the initiative and referendum in Western states like Colorado. I suspect historians of the period would give the party a good deal of credit for the Sherman Anti-Trust Act and those early labor laws that the U.S. Supreme Court routinely struck down during the period. More recently, the Working Families Party and Conservative Party have each won significant policies for their core constituencies by delivering crucial votes in close races.

We should also not dismiss this history or denigrate its significance because its greatest potential is at the state level. For one, to measure the importance of third parties in terms of their national success is anachronistic. State and local politics was where governance happened in the nineteenth century.  Even today, it is a mistake to dismiss state and local politics. For workers paid by the hour, where you live matters. Only five states lack their own minimum wage statute. The same is true of paid sick leave and free college tuition. In the two states where fusion voting remains viable, New York and Connecticut, those parties have been critical to the passage of reforms that matter to the sort of people who have real needs and are not preoccupied with politics.

Nothing in this post is meant to take issue with Ned Foley’s basic point: It is preposterous to hope that a third-party candidate will win the presidency in 2024 and save our democracy. But even here, analytic caution is called for. We should not confuse independent candidates with a third-party label with third-party candidates such as James B. Weaver, who, running on a fusion ticket, carried five states on Election Day 1892 on the backs of the People’s Party, which itself became the second-largest party in four states that year, South Dakota, Kansas, Nebraska, and Oregon.

My point is this: We may differ about how exactly to characterize the democratic failures in the United States or their causes, but we cannot deny a few basic facts. Public trust in government institutions is at an all-time low. Authoritarianism is on the rise, as are partisan polarization and unapologetic racism and xenophobia. And the major political parties bear significant responsibility for this state of affairs. This is a time to think big (third parties) and be realistic, prioritizing achievable party-centric reforms—like relegalizing fusion.

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Reform Roundup: PR, fusion, RCV & more

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Dan Balz in the Washington Post on expanding the U.S. House, multi-member districts and proportional representation, ranked-choice voting and open primaries, reforming the U.S. Senate, eliminating the electoral college, reforming the U.S. Supreme Court, voting rights, and bridging divisions and civic education.

Lee Drutman on “Proportional representation and presidentialism work just fine together”

Tom Rogers on Protect Democracy’s new fusion voting report in Newsweek: 

. . . [M]any voters could very well see five uncompetitive candidates on their ballot this November. . . In all likelihood, a multi-candidate ballot would splinter the pro-democracy vote—and increase the likelihood that former President Donald Trump returns to the White House. . . . 

But the answer is not for minor parties to throw in the towel: in a diverse and pluralistic society like ours, we would benefit from more than two outlets for constructive political expression and association. . . . 

Instead, we should allow minor parties to cross-nominate one of the two competitive, major party candidates. . . .

The anti-authoritarian group Protect Democracy just released a new study, Fusion Voting and a Revitalized Role for Minor Parties in Presidential Elections, that details the decisive impact of minor party cross-nominations where fusion has remained lawful. They conclude that allowing presidential cross-nomination from a minor party championing political centrism and moderation could have an outsized impact in our polarized politics today.

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“New Jersey Centrists Seek to Legalize Their Dream: The Moderate Party”

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In The NY Times, Blake Hounshell reports on the efforts of a new political party, the Moderate Party, to get rid of New Jersey’s anti-fusion law.

From the article:

“The party’s goal is to give centrist voters more of a voice at a time when, the group’s founders say, America’s two major parties have drifted toward the political fringes. But unlike traditional third parties, the Moderate Party hopes to nudge the Democratic and Republican Parties toward the center, not replace or compete with them.”

The Moderate Party nominated Tom Malinowski as its candidate for the New Jersey’s 7th Congressional District. Mr. Malinowski, a Democrat, is also the Democratic Party’s nominee for Congress. If the Moderate Party’s petition is denied, as expected, it will challenge the anti-fusion prohibition.

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