Challenging Statewide Ban on Fusion Voting

Fusion voting not only allows voters to select the candidate of their choice without having to support one of the major parties, but allows minor political parties influence in elections commensurate to their actual support in the electorate.

We filed a friend-of-the-court brief on behalf of Professor Tabatha Abu El-Haj in support of a lawsuit—United Wisconsin v Wisconsin Elections Commission—seeking to strike down the state’s unconstitutional ban on fusion voting.

Professor Tabatha Abu El-Haj is a Professor of Law at Drexel University, Thomas R. Kline School of Law, in Philadelphia, PA, where her research focuses on the First Amendment and the rights of association and assembly.

Election rules in Wisconsin prevent political parties from nominating the same candidate, forcing voters to choose between supporting a party they don’t like or voting for a “spoiler” candidate who has little chance of winning. Absent such restrictions, parties could “fuse” together, and the ballots cast on each party’s nominating line would be added together to the candidate’s vote total.

The brief brings into focus the constitutional problems with banning fusion voting by examining the United States Supreme Court ruling in Timmons v. Twin Cities Area New Party, a 1997 decision that permitted fusion voting to be outlawed in Minnesota.

The ACLU’s brief, filed on behalf of Prof. Abu El-Haj, asserts that prohibiting minor parties from nominating their first-choice candidate deprives them of an essential party- building mechanism and limits their capacity to build broad political coalitions to strengthen the party, severely restricting the First Amendment right of association.

“By preventing a minor party from placing the party’s chosen, willing, and otherwise qualified candidate on the ballot, anti-fusion laws thus interfere with core associational rights—not just speech rights—because they frustrate a party’s ability to recruit, keep, and organize members,” the brief states.

The brief also contests another core legal justification for the ban—that preserving a rigid, exclusionary two-party system promotes political stability. Far from facilitating greater stability, the dominance of the major parties has made our democracy decidedly less stable. The erosion of public confidence in government, the decline of party allegiance, and the increasing scarcity of competitive elections throughout Wisconsin and the country clearly indicate the two-party duopoly has been counterproductive to civic participation.