ACLU of Wisconsin Files Amicus Brief in Support of Case Challenging Statewide Ban on Fusion Voting

MADISON — The ACLU of Wisconsin last Friday 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.

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.

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.

“Fusion gives those disaffected by the major parties meaningful avenues and incentives to constructively associate outside of the two major parties while decreasing the likelihood of a spoiler candidate and increasing the likelihood that the winning candidate attracts broad majority support,” the brief argues. “Fusion also allows voters who have rejected the platforms of the two major political parties to participate constructively in our democracy by voting for a candidate on a party line that most aligns with their policy goals.”

“Anti-fusion laws are particularly pernicious given that our system was explicitly designed to ensure that a numeric minority would not be able to exercise political power unless it formed political alliances,” said Professor Abu El-Haj. “Anti-fusion laws thus undercut the only path to political responsiveness political minorities have: forging alliances. Looking back, had fusion bans been in place the abolition of slavery, the adoption of an official voting ballot, and the introduction of an 8-hour work-day are three examples of foundational changes that would never have materialized in the same way—these reforms were the result of minor parties working in concert with major parties, including through cross-nomination."

“In today’s political climate, a growing number of Americans feel alienated by both major parties, believing that neither one adequately represents their values or responds to their needs,” said Ryan Cox, Legal Director of the ACLU of Wisconsin. “Instead of having to choose between supporting a party they don’t agree with or casting a vote for a candidate unlikely to win, Fusion voting offers voters an alternative to still meaningfully engage in electoral politics without having to identify with a dominant party. A democracy is only as strong as those willing to participate in it, and fusion voting bans make it more difficult for everyday people to come together and build political power.”