State Fusion Litigation

Building Coalition Through Multiple Party Nominations        

Donna Edwards

        Fusion is a reform that allows candidates to have multiple party nominations. By allowing a candidate to run as the candidate of more than one party, fusion allows popular, but small third parties to influence election results and thus have some input into public policy. Fusion permits minor parties to enter into electoral coalitions with other parties (both minor and major) and gives lesser-known parties a chance to support their preferred candidates without the risk of "wasting" votes on candidates who stand no chance of victory.
        Throughout this century, banning fusion has been a strategy to use election laws to maintain the electoral advantage for major party candidates. Fusions bans were first enacted in the late 1890s when fusion between the Populist "People's Party" and the Democratic Party became extensive, culminating in the election of Grover Cleveland. In response, Republican-dominated state legislatures proceeded to enact fusion bans in the hopes that they could slow this resurgence.
        States ban fusion in two ways. "Direct ban" states prohibit multiple party nominations explicitly, while "indirect ban" states ban fusion by requiring candidates to be members of their nominating party. Either way, by continuing to ban fusion, states maintain a fragmented voter base, with all but the largest parties disallowed from any voice in the legislature or the laws that it makes.
        In the ongoing effort to lift the fusion bans (present in 40 states and the District of Columbia), the Center for New Democracy (CND) has been working with minor parties to challenge the constitutionality of their anti-fusion laws.
        The claims are based on the premise that, by forbidding parties to nominate candidates because that candidate is also the nominee of another political party, fusion prohibitions obstruct parties' First Amendment rights to select their nominees free from state interference. It is also argued that although the ban appears neutral, it disproportionately burdens minor parties which need fusion coalitions in order to compete effectively in the state elections.
        One of CND's efforts is in Minnesota, where a lawsuit was brought by the Twin Cities Area New Party, a fledgling political party, against the state. The case, dismissed in the U.S. District Court for the District of Minnesota in September 1994, is now being pursued in the Eighth Circuit Court of Appeals. A decision on the appeal is forthcoming.
        A lawsuit also was brought against Allegheny County (PA) on behalf of the Patriot Party. This case presented a clear Fourteenth Amendment equal protection violation as well as the standard First Amendment claim. Pennsylvania law permits fusion by major parties for some local elections, but not by minor parties for any elections. CND has presented its argument and is waiting for a decision from the Federal District Court.
        The first legal challenge to a fusion ban, Swamp v. Kennedy, had been brought to trial in Wisconsin in 1992. Argued under a First Amendment claim, Swamp yielded promising comment from three highly respected conservative judges on the Seventh Circuit Court of Appeals. In their record of dissent, Judges Ripple, Posner and Easterbrook wrote that:

The Supreme Court has recognized that the right of a party to nominate a candidate of its choice is a vital aspect of the party's role in our political structure. The ability to choose the same person as another party is an important aspect of that right. It allows a party to form significant political allian-ces... A state's interest in political stability does not give it the right to frustrate freely made political alliances simply to protect artificially the political status quo.

        CND's fusion litigation strategy is based on an eventual "split between the circuits'" caused by persistent challenge of fusion laws in many states. This disparity in opinion should persuade the Supreme Court to review another case and finally set the important precedent for fusion in elections.

        Donna Edwards is executive director of the Center for New Democracy and a Board member of the Center for Voting and Democracy. For information, contact: Center for New Democracy, 410 7th Street, SE, Washington, DC 20003 (202) 543-0773. CND also is involved in campaign finance reform.

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