In New Jersey, a pending lawsuit seeks to overturn the state’s ban on fusion voting: the practice where two or more parties nominate the same candidate, who then appears on the ballot as the nominee of multiple parties, with all of the votes cast for that candidate combined to determine the winner of the election. The case for allowing fusion is interesting in and of itself, but also at stake is a broader First Amendment principle.



Fusion nominations were once common in American politics. Before his tenure as chief justice, Earl Warren was re-elected as governor of California in 1946 as the simultaneous nominee of both the Republican and Democratic parties. But more commonly, fusion allowed third parties to grow in influence and support by selectively endorsing major-party candidates.



In the 19th century, fusion allowed growing third-party movements to form alliances with the weaker of the two major parties in a state, challenging the dominant party, often to good effect. In the 1890s, the Democratic stranglehold on the post-Reconstruction, Jim Crow-era Deep South was broken for a time in North Carolina, bringing to power a biracial fusion coalition of Republicans and Populists. After the Democrats regained power in 1898, explicitly campaigning on a platform of white supremacy, ending fusion went hand-in-hand with systematically disenfranchising black voters.

Across the country, fusion voting was used successfully by parties like the Greenbacks, Populists, and later the Progressives. In some states, these parties became so influential and successful that they eventually merged into one of the two major parties. This is why, to this day, Minnesota Democrats run under the banner of “Democratic-Farmer-Labor,” born of a merger between Democrats and the Farmer-Labor Party after the latter achieved substantial success with a mix of both fusion and non-fusion candidates.



The prohibition of fusion played a major role in the decline of third parties in the United States after decades in which they had played a significant role and frequently elected governors, state legislators, and members of Congress. Instead, the end of fusion relegated third parties to mostly running protest candidates and usually receiving an insubstantial percentage of the vote. American politics was always dominated by two major parties, but the end of fusion ushered in the modern era of having the world’s strictest and most exclusive two-party system. Today, the United States is the only major democracy with just two parties represented in its national legislature. Even for lower offices, successful third-party candidates are few and far between. 



Only a handful of states still permit fusion, and several of those only allow it under very narrow and difficult circumstances, like winning a party’s primary by write-in votes. The states that do still permit traditional fusion are also the home of the most electorally successful third parties, such as the Working Families Party in New York and other states, and the Vermont Progressive Party, both of which routinely elect members to the state legislature and even statewide offices. Fusion also allows minor parties to grow and attract support so that, when they choose, they can also mount credible non-fusion campaigns.



In an age of hyper-polarization, restoring fusion offers an important way to break up the strict duopoly of American politics. That’s the goal of the lawsuit in New Jersey, on behalf of a new Moderate Party which would like to selectively cross-endorse both Republicans and Democrats to provide an electoral advantage and base of support to more centrist politicians. Other fusion parties represent views more to the right or left of one of the major parties, allowing a fusion nomination on the ballot to reflect an important signal and political leverage for their voters. That was the case for both the Liberal Party and the Conservative Party, which have since declined but for much of the 20th century played an important role in New York politics, electing both fusion and non-fusion nominees to major offices. 



Aside from its merits as an electoral reform, alongside other options such as ranked choice voting and proportional representation, the case against state laws banning fusion is rooted in the First Amendment. As the Supreme Court has repeatedly affirmed, political parties are engaged in core First Amendment activity: political speech and organizing. The Court has also held that parties have a First Amendment right to handle their internal affairs as they see fit and to nominate the candidate of their choice. Laws which burden a political party’s freedom and limit ballot access for candidates must, therefore, survive First Amendment scrutiny.



In general, that means restrictions on ballot access (that is, the ability of candidates to appear on the ballot) must be justified by a legitimate, compelling state interest and be narrowly tailored to meeting that goal. Laws requiring a certain number of petition signatures for candidates, for example, serve the interest of avoiding a cluttered ballot and possible voter confusion. For that reason, the courts have upheld such laws so long as they are not too restrictive and do not impose excessive burdens (an amorphous and frequently litigated standard). States are also allowed to restrict parties from using ballot labels that are confusingly similar to another party’s name, e.g. “Republic” in contrast to “Republican,” or the use of the word “Independent” in a party name when that label is already used to designate candidates without any party affiliation.



Unfortunately, the Court has sometimes strayed from this principle. In 1997, in Timmons v. Twin Cities Area New Party, Chief Justice Rehnquist upheld Minnesota’s ban on fusion in an opinion holding, for the first time, that perpetuating the two-party system is in and of itself a legitimate state interest justifying restrictions on the First Amendment rights of political parties. 



This holding is at odds with the general principle that such restrictions must be content and viewpoint-neutral. The proposition that a two-party system is preferable to a multi-party system is a defensible view, one held by many Americans. But it is plainly a question that is open for debate and the opposite view is not uncommon. To uphold a ban on fusion on this basis is endorsing the idea that the government can pick one side of that debate, favoring its proponents and imposing restrictions on the speech and association rights of its opponents. A political party should not be prohibited from nominating the eligible candidate of its choice just because the government does not like a specific political opinion.



Challenging the Timmons precedent is a worthwhile endeavor, even for those who have little interest in relatively arcane election law issues such as fusion voting and ballot access. States are free to maintain electoral systems such as first-past-the-post and single-member districts which, in practice, incentivize a political ecosystem dominated by two major parties. But they should not be able to directly impinge on First Amendment rights of third parties for no other reason than a desire to protect Republicans and Democrats from competition. Doing so violates the fundamental principles of government neutrality which are deeply embedded in First Amendment law. Correcting that error is long overdue and would represent an important opportunity to strengthen First Amendment neutrality jurisprudence more broadly.



[Ed.: A previous version of this post said that Earl Warren was the Republican, Democratic, and Progressive nominee in the 1946 California gubernatorial election. The Progressive Party by this time was not on the ballot in California, and so Warren only appeared as the nominee of both the Republicans and the Democrats. Thanks to Richard Winger of Ballot Access News for the correction].