Igniting the Fuse: Opening Up Third Party Politics


Elizabeth A. Hodges

 

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.