Igniting the Fuse: Opening Up Third Party Politics

On December 4, 1996 Harvard lawyer Laurence Tribe argued to the U.S. Supreme Court that anti-fusion laws are unconstitutional. The ruling is expected late this spring. If he wins, which many expect him to, it will re-landscape third party politics in the United States.

Fusion means nominating the same candidate for office by both a major and one or more minor parties. Often the candidate will appear on the ballot line for each nominating party.

Fusion advocates say that it is a vital tactic for third parties--to nominate a major party candidate and have that person on the minor party's ballot line can show electoral strength to the major party. If Candidate Johnson wins an election by ten percent, and ten percent of her votes came from people voting on the minor party's line, Candidate Johnson must be accountable to the minor party to win re-election.

Voters face dilemmas when they enter the ballot box and confront a choice between major and minor party candidates. These dilemmas are reinforced when fusion is illegal, as it is in 42 states. Voters worry about "spoiling" elections--taking votes away from a major party candidate who is their second choice by voting for a minor party candidate who is their first choice. By so doing, they may give the victory to their last choice, the other major party candidate.

Even if the voter is not worried about spoiling, he or she may think a vote for a minor party candidate is "wasted." "Reluctant to 'waste' votes on candidates they perceive as having no serious chance of winning, even voters who support the party's ideology and program will often decline to show that support at the polls," wrote the New Party in its brief to the Supreme Court. In an electoral system without proportional representation, spoiling and wasted votes inform the strategies that voters use when entering the ballot box.

Fusion avoids these problems. Because the minor party has nominated someone who is also a major party candidate, it is neither spoiling the election nor wasting its members' votes. At the same time the party is showing its support for a minor party candidate and showing its own strength.

1996

Joel Rogers and Daniel Cantor, co-founders of the New Party, realized that fusion would make a difference for the life course of their progressive third party. Headquartered in New York, the New Party is a national party that focusses on local, winnable elections. The party's motto is "A Fair Economy. A Real Democracy. A New Party." Since its founding in 1992, the party has run candidates in 163 elections and won 110 of them. A 68 percent success rate is impressive for any political party.

But Rogers and Cantor wanted more. They wanted fusion. They realized that a Supreme Court challenge for fusion was viable, given the Court's recent support of parties as entities with their own constitutional rights. They tried to challenge Wisconsin's fusion law and were met with defeat. Then came Minnesota.

Andy Dawkins, a Democrat running for the Minnesota state legislature, wanted to accept the nomination of the Twin Cities Area New Party. State law, enacted in 1901, would not allow him to. The New Party brought the case to court, where judges supported the fusion ban at the district level but not on appeal in the Eighth Circuit. The Supreme Court agreed to hear the case, as they often do when the courts split on decisions. Both sides will find out this spring whether the justices agreed with their arguments.

In its brief to the Court, Mnnesota claims that fusion would lead to "manipulation of the ballot that would turn it into a billboard for sloganeering or single issues politics." (Neither Minnesota's attorney general nor the solicitor general, counsel for the state, agreed to comment for the record.) Splintering would look something like this: Jane Doe, upset with the Republicans about their tax plans, would create the "No New Taxes" party, get the signatures required for ballot status, and run on the Republican line and her new party's line. Factions would develop within each and remove support from legitimate parties, confusing the voters and detracting from the business of democracy.

Voters would become confused when they were given a ballot with the same name appearing on different party's ballot lines--they would not know if it was the same person and the ballot might become too long and complex for someone to read. People's ballots would be voided because they were filled in improperly.

Not true, said Rogers. "The number of parties in the system is easily regulated through some threshold requirement to ballot access, so that you need to show some demonstrated level of support to become a party ... It's not an intractable problem at all."

The idea that voters would get confused at the polls he finds insulting. "Do you think people in the nineteenth century were really that much smarter than people in the twentieth century? Do you think people in New York [where fusion is legal] are really that much smarter than people in Minnesota? Most twentieth century Minnesotans I know don't think either of those things, but they would have to believe both of those things to be worried about voter confusion." The ballot would be simpler than programming a VCR or figuring out the cable lineup in TV Guide, he added.

Fusion would actually add clarity to the present system, Rogers said. Fusion would specify where a candidate stands in a time when there is more difference within the two major parties than between them. A Democrat who gets the New Party nod would let voters know that she is progressive rather than moderate, for example.

1896

When states were discussing fusion bans in the late 19th century, they did not rely solely on arguments about voter confusion or state's rights. They were clear that minor parties were a threat to major party power. "We don't propose to allow the Democrats to make allies of the Populists, Prohibitionists, or any other party, and get up combination tickets against us. We can whip them single-handed, but don't intend to fight all creation," said a Republican state legislator from Michigan when arguing for a fusion ban.

According to an article by Peter Argersinger, historian at the University of Maryland and supporter of fusion, once the power of the ballot was in the hands of the state (previously, parties had printed and distributed their own ballots) they used it to limit ballot access. Republicans in particular were unhappy with fusion challenges from Populists and Democrats. Playing off of the Populists' lack of willingness to vote for anyone not on their own party line--which stemmed from their distaste for the major parties--states banned fusion knowing it would bite into Populist power. All but eight states have banned fusion since then.

Rogers argues that this had a debilitating effect on third parties. "The evidence is just knock-down. When they took away fusion, third parties changed their form. They became less successful. They became more candidate centered. They were much less enduring as real subjects out there in government. And where they let fusion back in, third parties reappeared."

A Question of Power

Fusion advocates think that major party arguments hide what is really at stake--unchallenged major party power. "The states didn't want fusion to happen because the states themselves are creatures of the major parties. The major parties decided sometime after the defeat of the Populists in the late 1890s that fusion...was a drag for them," said Rogers. Rory Millson, counsel for the Conservative Party of New York, agrees. "Historically, major parties have enjoyed a monopoly on power," he stated. "Third parties threaten that."

Sarah Siskind, a lawyer for the New Party, pointed to Minnesota's new fusion legislation as an example of party reluctance to allow fusion. Imagine the scene--a state with a fusion ban is told by the courts that the fusion ban violates constitutional rights and is therefore not permissible. The state now has to create laws that allow for fusion. They have a choice--accept the legislation proposed by the candidate who wanted to fuse, or write new legislation. Minnesota chose to do the latter.

The state legislature made it difficult for minor parties to sustain themselves even with fusion. It passed a bill that requires a ballot with the fusion candidate's name only on the major party line, with the minor party's name merely listed next to the major party's name. The law says that this is to avoid voter confusion.

In addition to that, Siskind pointed out, the Minnesota legislature "added some more provisions to the bill that heightened ballot access requirements for parties that fuse ... And the fusion votes don't count, they don't count toward ballot status, they don't count toward anything. Basically if you fuse, you give up your ability to get ballot status." The law offers no justification for the heightened ballot access requirements.

Even given those restrictions, the New Party still wanted to fuse with three Democratic candidates in Minneapolis. All they needed was consent from the major party. At the last minute consent was denied.

Ironically, the Democrats who oppose fusion may have been more worried about Perot's Reform Party than they were about the New Party. Siskind said, "In urban districts, where [Democratic incumbents] had support, they didn't need [the New Party] ... whereas in outlying districts and rural areas where there was closer competition from the Republicans, they were worried not about the New Party but more centrist parties like the Perot people taking away votes from Democrats and delivering victories to the Republicans. Basically it's a known competition when you've got two parties, and they didn't want to encourage the establishment of a competition party. Why would they want to do that?"

Even if the Supreme Court decides that an absolute ban on fusion is unconstitutional, the major parties themselves could create rules that don't allow their candidates to run for another party as well. Democrats, for example, could make it a condition of endorsement that no candidate accept the nomination of another party.

Rogers worries about this. "I think that anyone who is a woman, anyone who is of color, anyone who works for a living, not to mention decent business people and even the occasional white, male guy--and we've just described 95 percent of the population--has a very clear stake in preventing the Democratic Party from doing that. Because if it does that, then the possibilities of realizing your interests, and your values, are going to be limited."

The Reform Party, the Conservative Party of New York, the American Civil Liberties Union, and a group of 12 academics all wrote briefs in support of the New Party's case. All see fusion as an important tactic by which electoral politics in the United States could open up. Even the Republican National Committee wrote a supporting brief--it states that they want to make certain that parties have the right to consent to whether or not their candidates fuse.

Results

Cantor wrote in his report after the oral arguments in front of the Supreme Court that the New Party seemed to have Justices Stevens, Ginsburg, and Souter on its side. They were openly skeptical about Minnesota's voter confusion argument. He said for the rest of the Justices it was "impossible to tell what they were thinking." He did say that he thought the New Party will win. Cantor and all citizens will find out late this spring what the judges really thought, and whether or not they rule fusion bans unconstitutional.