Reviving the American Tradition of Fusion Voting

This Working Paper proceeds in four parts. First, we discuss several key ways in which the U.S. political system is failing today—and why that matters for the health and stability of U.S. democracy. Second, we discuss the long tradition and importance of fusion in U.S. elections dating back to the early 1800s. Third, we discuss the potential effects of relaxing anti-fusion restrictions now. Finally, we discuss why anti-fusion laws do not withstand constitutional scrutiny and highlight contemporary litigation efforts to challenge them.

Problem Statement

What is undermining the health and stability of U.S. democracy? How might lifting unconstitutional state restrictions to fusion alliances lower the temperature of politics, engage voters without a current political home, improve policy responsiveness to political majorities, and organize and strengthen the center of the U.S. political system?

Our Political System is Undermining the Health and Stability of U.S. Democracy

The challenges facing U.S. democracy in the 21st century are myriad. Some of the causes are exogenous and have contributed to democratic recession around the world: the rise of social media and fragmentation of information ecosystems, the proliferation of disinformation and targeted disruption arising from authoritarian regimes, residual socio-economic effects of the global financial crisis of 2007–08, the rise of post-materialist politics, growing urban-rural cleavages, etc. Yet, the nature and intensity of recent backsliding in the United States is more troubling than in other advanced democracies.

The organized effort to reverse the electoral outcome of the 2020 presidential election, the attack on the U.S. Capitol on January 6, 2021, and the ongoing questioning of the legitimacy of that election are prominent manifestations of this trend. The trend is also evident in the open adulation of avowedly illiberal foreign leaders like Hungary’s Viktor Orban and Russia’s Vladimir Putin by prominent American political figures. Indeed, across the political spectrum, trust in our democratic institutions is dangerously low, as is faith that these institutions can tackle the pressing issues of our time. These frustrations are not without a basis in reality: There is overwhelming agreement in the electorate on many areas of policy with known and achievable legislative solutions, yet policymaking often fails to reflect these widely held voter preferences. More people, especially in younger generations, are thus questioning our fundamental commitment to a pluralistic, liberal democratic order, and many believe that force and violence may be warranted in order to “save our country.”

Not only are these trends concerning today, but research suggests that these problems are self-reinforcing and that—absent reform—we are stuck in a “doom loop” where they will only worsen in the years to come. Through the use of winner-take-all elections where minor parties are forbidden from cross-nominating competitive candidates, our political system ensures that only two parties can play a meaningful role in the political process. Geographic partisan sorting and purposeful gerrymandering exacerbate the problem by making few elections competitive and isolating enclaves and echo-chambers of political extremism into semi-permanent incumbency.

For most of the 20th century, the two major parties were geographically and ideologically diverse, allowing for frequent bipartisan governance and unique cross-party coalitions that evolved from issue to issue, reflecting cross-cutting regional and issue alliances. Government repeatedly tackled big problems. Increasingly, however, the two parties represent wholly distinct value-systems, erasing the cross-cutting cleavages that routinely produced opportunities for collaboration in the post-war period. In-group moderates face mounting pressure to either embrace the party line—or face exile. (Senator Lindsey Graham’s evolution over the past decade reflects the first dynamic; Senator Lankford and former Representatives Liz Cheney and Adam Kinzinger typify the second.)

The consistently binary nature of political conflict is particularly problematic: When the same group of partisans line up against the same opponents on virtually every issue, a tribal mentality takes hold, and voters and politicians alike see through a zero-sum lens. We “see our fellow citizens not as political opponents to politely disagree with, but as enemies to delegitimize and destroy.” This rigid binary “turns politics from a forum where we resolve disagreements into a battlefield where we must win and they must lose.” Partisans on both sides come to view elections as existential and defeat not just as a threat to their preferred policies, but to their way of life. These perceived stakes allow partisans to rationalize increasingly troubling tactics in the pursuit of electoral victory—including extra-legal efforts to subvert the will of the electorate, as on January 6, 2021.

Electoral campaigns to buck these trends time and again prove futile. Despite the broad unpopularity of both major parties and overwhelming support for more electoral choice, an organized and well-funded effort failed to recruit a cross-partisan “unity ticket” as a third option in the 2024 presidential election, just as Michael Bloomberg, Howard Schultz, Mark Cuban, and other prominent figures abandoned similar plans in recent cycles notwithstanding ample resources and ambition. Across the country, there is not a single congressional or statewide candidate without the backing of one of the two major parties who will be competitive in November 2024. This is striking given that more than 40% of voters identify as independent. But the reason is clear: Most people understand that when third and fourth candidates are on the ballot, there is a risk that a majority of like-minded voters will split their vote, allowing the major party candidate they most dislike to win office with minority support. As a result, a major party likely to lose votes to an additional candidate has a strong incentive to undermine the challenger by preventing ballot access or reducing public support—further alienating voters yearning for an alternative to the binary status quo.

Despite widespread dissatisfaction with the parties currently operating in the United States, political parties are indispensable institutions. Over 80 years ago, the renowned E.E. Schattschneider observed that “[m]odern democracy is unthinkable save in terms of parties.” This axiom remains true today. Parties are the essential infrastructure of a healthy representative democracy, “just as roads and bridges and railways and airports and electricity grids are the infrastructure of a modern economy.” Similarly, “[w]e want better roads and bridges . . . not merely because we enjoy driving. Rather, we say we want better infrastructure because of what else it makes possible—a thriving economy not bogged down by potholes and closures and traffic snarls.” The same is true of political parties: “[W]e want better political parties not for their own sake,” but because “parties are the institutions that connect citizens to the government. When they function poorly, many citizens feel disconnected and isolated.”

Healthy parties perform numerous essential functions. They aggregate long-term policy commitments among diverse groups and communicate the consequences of these policies to voters at scale. They make elections meaningful and consequential by structuring choices. They engage and mobilize voters. They vet and support qualified candidates for public office. Healthy parties assemble governing majorities and broker compromises capable of solving public problems.

We must embrace changes to the political system that alter the incentives around the formation and conduct of parties themselves. Once we take into account the central role parties play in a democracy, it becomes evident why efforts to encourage individual actors to improve or moderate their behavior will likely have limited impact. Accordingly, in order to get out of the current “doom loop,” we must embrace a party-centric approach to democratic reform.

One promising option is to lift the “anti-fusion” laws enacted at the turn of the 20th century in order to allow minor parties to cross-nominate competitive candidates who also have the support of one of the major parties. This modest adjustment to the existing legal regime could produce meaningful benefits to the extent that it would promote party competition and flexibility by providing opportunities for serious minor parties to form and play a constructive and additive role in electoral politics. Before examining the expected impact of these changes today, it is helpful to understand the ways in which cross-nominations and other forms of minor party collaboration have shaped U.S. politics dating back to the early 1800s.

Fusion Voting Has Played a Prominent Role Throughout U.S. History

Until the turn of the 20th century, political parties nominated their preferred candidates largely without restriction, and candidates routinely earned multiple nominations. While minor parties often nominated separate candidates (who, like their modern counterparts, rarely won office), they also could use cross-nominations to elevate neglected issues into the political mainstream, disrupt the status quo, and build cross-ideological alliances to advance their goals.

One of the most prominent early examples of fusion occurred in Philadelphia in the late 1820s, as laborers and craftsmen seeking a ten-hour work day and other basic labor protections formed the Working Men’s Party. In the 1828 elections, they nominated some candidates also supported by the Jacksonian Democrats and others supported by the anti-Jackson Federalists; nearly two dozen of these cross-nominated candidates who advertised themselves as being on “The Working Man’s Ticket” won election. The Working Men’s Party also nominated eight standalone candidates, but all of them lost. A similar dynamic occurred in the 1829 elections, with another 20 victories by candidates cross-nominated by the Working Men’s Party.

By the 1840s, one of the dominant national parties (the Democrats) embraced slavery and promoted its expansion, while their main opponent (the Whigs) disapproved of its expansion but largely acquiesced to its perpetuation in the South. After years of mostly eschewing electoral politics in favor of “moral suasion,” leaders within the antislavery movement finally organized the Liberty Party, Free Soil Party, and Anti-Nebraska Party to advance their cause. Unsurprisingly, the early federal, state, and local campaigns produced few electoral victories. And in 1844, the Liberty Party arguably helped the pro-slavery Democrat James Polk win the presidency over the Whig Henry Clay, who favored gradual emancipation but was a slaveholder. This is because nearly 4% of the vote in Michigan and New York went to the Liberty Party’s James Birney, exceeding Polk’s margin of victory in both states; had Clay instead won those 41 electors, he would have taken the election.

Antislavery political strategy matured in the subsequent years to embrace opportunities for cross-party collaboration. Abolitionists and other movement leaders became increasingly willing to work with Whigs and Democrats who shared their opposition to slavery, in part, no doubt, because they realized the value of coalition building and the potential risks of fracturing. In congressional and state elections from New Hampshire to Ohio to Iowa, minor party cross-nominations helped defeat pro-slavery candidates and accrue new legislative power, making the antislavery movement a dominant political force throughout the North. Several of the most prominent antislavery senators of the era, including John Hale, Salmon Chase, and Charles Sumner, similarly gained their seats through cross-party coalitions in their respective state legislatures. Antislavery leaders used their hard-won political power and the disintegration of the Whigs to unify under their newly formed Republican Party in 1854. Two years later, Republican John Frémont fell 42,000 votes short of the White House. In 1861, Abraham Lincoln became our first Republican president—the first president elected by a party that was explicitly antislavery.

Several decades later, the 1880s and 1890s produced a groundswell of working-class discontent with monetary and fiscal policy and the acquiescence of both major parties to the concentrated power of industrialists. The Populist Party (also known as the People’s Party) emerged as a potent political force, giving voice to millions who bristled at the gilded inequality of the era, demanding antitrust regulation, basic labor protections, and a greater voice in the democratic process. In the North and West, Populists fused with sympathetic Democrats to challenge the Republican Party’s regional dominance. In the South, the dynamic was inverted, as Populists partnered with aligned Republicans, including many newly enfranchised black men, to oppose Democratic Jim Crow rule. The electoral impact was immense, with Populist voting blocs controlling the balance of power in countless races and legislative chambers in the era—and even dominating in states like Kansas.

Egalitarian policies recently deemed radical were quickly brought into the political mainstream, laying the foundation for many of the celebrated political, social, and economic reforms of the ensuing Progressive Era. The experience in North Carolina was particularly notable, as a cross-racial alliance of Populists and Republicans won control of state government for several years—a rare exception to Jim Crow Democratic rule in the South after Reconstruction. By improving public education, expanding the franchise, and advancing other reforms, this governing coalition delivered on policies prioritized by its diverse array of supporters.

Unfortunately, white supremacist violence brought this promising era to a premature end. The new Democratic majority in the North Carolina legislature promptly enacted new election laws to reduce minor party influence and frustrate cross-party alliances, using the state’s regulatory powers to entrench one-party control. This phenomenon was in no way limited to North Carolina, or to Democratic majorities.

Over the next few decades, dozens of states adopted anti-fusion laws to insulate whichever party held power in that state at the time from a unified opposition. In the words of a Republican lawmaker in Michigan: “We don’t propose to let the Democrats 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.” Effectively barred from nominating viable candidates or constructively gaining political leverage, minor parties have been relegated to the electoral periphery for more than a century.

Two notable exceptions to this trend are New York and Connecticut—where cross-nominations remained lawful and have long featured prominently in local, state, and federal elections. In the modern era, the Working Families Party and Conservative Party have been the most influential minor fusion parties in New York, each securing key policy wins for their core constituencies after delivering crucial votes in close races. For much of the 20th century, liberal voters were a contested and often decisive voting bloc, and the Liberal Party in New York fused on both sides of the aisle, often accounting for the margin of victory. Nelson Rockefeller, Jacob Javits, and John Lindsay each won with their ballot line.

So did JFK. In the 1960 presidential race, New York’s 45 electoral votes decided the presidency, and although Richard Nixon received more Republican votes than Kennedy received Democratic votes, Kennedy’s 6% support on the Liberal Party line delivered him the state and the White House. Franklin D. Roosevelt and Ronald Reagan likewise secured New York’s electors by fusing with minor parties, whose vote totals exceeded the margin of victory.

In Connecticut, a moderate minor party (A Connecticut Party) used its ballot line to build, elect, and support a cross-partisan legislative coalition that succeeded in passing the state’s first income tax in the early 1990s. More recently, the 2010 gubernatorial election was decided by a razor-thin margin, with a fusing minor party’s vote total far exceeding the margin of victory; shortly thereafter, the governor prioritized passage of the country’s first statewide paid sick leave legislation, the top legislative priority for the minor party. Cross-nominations, including by the moderate Independent Party, continue through the present day.

Potential Effects of Lifting Anti-Fusion Restrictions Today

Restoring the right of political parties to cross-nominate their preferred candidates could mitigate some of the serious challenges facing U.S. democracy in the 21st century. Without anti-fusion restrictions, our political system could be more responsive to and reflective of majority preferences; by reducing a key barrier to forming broad, cross-ideological electoral coalitions, our system could be more resilient to minority authoritarian factions. We could expect visible changes at the level of voters, candidates, and parties themselves. It is therefore unsurprising that organizations across the ideological spectrum—ranging from the American Enterprise Institute, Cato Institute, Manhattan Institute, and Rainey Center, to Protect Democracy and New America, to the Center for American Progress, Brennan Center for Justice, the ACLU, and Demos—have raised concerns about anti-fusion restrictions. Below is a simple illustration of how cross-nominations appear on the ballot and how each party’s vote total is combined to calculate the overall vote tally for each candidate.

A key problem with anti-fusion laws is that they discourage collaboration and compromise—a particularly troubling dynamic in today’s political environment. Our zero-sum, binary political frame is reinforced when voters are time and again limited to supporting the same two parties. Success for the in-group always means failure for the out-group, and vice versa. More options instead provide the flexibility and fluidity necessary for healthy democratic engagement and collaborative problem-solving.

When fusion is possible, key actors have a powerful incentive to organize around their authentic interests and beliefs and explore whether sufficient common ground exists for the collaborative pursuit of shared goals in support of a shared candidate. Comparing the actual vote share that a candidate receives on each party’s ballot line then allows for a more granular understanding of the revealed preferences of the electorate and empowers elected officials to take actions that better reflect the ideological diversity of their voters. This process also promotes political equality and individual integrity, freeing minor party voters from the need to strategically vote for a major party they dislike in order to cast a meaningful vote for a competitive candidate. At the same time, the possibility of a cross-nomination has the potential to encourage voters disaffected with the major parties to channel their discontent constructively, to view competitive candidates as potential partners with whom they could build bridges—instead of opponents who fail their ideological purity tests. Of course, a party may only nominate a candidate with their consent, encouraging the formation of parties whose support can provide a net electoral advantage to their nominees.

Throughout history, the opportunity to cross-nominate competitive candidates has allowed minor parties to form and evolve to represent the constituencies that felt underserved by the two parties dominating the political system at that time. Today, a substantial number of voters self-identify as moderates who are “politically homeless,” viewing the Democratic Party as too progressive and the Republican Party as too reactionary. But if we no longer had anti-fusion laws, a minor party representing this pool of voters could nominate whichever of the two competitive, major party candidates in a given race better reflected the party’s values and priorities.

In the immediate term, electoral prospects could improve for moderate candidates who earn this nomination. A moderate party’s cross-nomination of a major party candidate could be a powerful signal to low-information voters, especially since the information is conveyed on the ballot itself, unlike public endorsements and other electioneering strategies competing for attention in the run-up to the election. The cross-nomination could also increase support from moderate voters across the aisle with a strong aversion to the candidate’s major party who wish to signal clearly their preferences and political identity; these voters can support a candidate they like without having to vote for a major party they loathe. In a close contest, even a modest increase in support could make the difference between victory and defeat.

A moderate cross-nomination can also increase the likelihood that an extremist candidate encounters a united opposition, instead of a fractured opposition that facilitates an extremist victory with minority support. In this period of ascendant authoritarianism, whether a pro-democracy majority can retain electoral unity is critically important: around the world, autocrats have time and again gained power not by force, but by defeating a fractured opposition at the ballot. This concern is a principal reason why many prominent moderates sympathetic to No Labels’ politics nonetheless opposed their effort to field a separate, bipartisan ticket in 2024. While removing anti-fusion restrictions does not preclude a group like No Labels from running its own ticket, the new opportunity to exert constructive moderating influence (without the downside risk) would likely divert much of the galvanizing energy and resources. In fact, Senators Mitt Romney and Joe Manchin considered this alternative in 2024, discussing (but ultimately deciding not to pursue) the formation of their own moderate party in order to endorse the more moderate of the two leading presidential candidates.

These dynamics could have meaningful implications for the political system writ large. The potential electoral advantage associated with a moderate cross-nomination could make more races competitive, creating an opening for a moderate major party candidate to contest an otherwise safe seat if they can secure the moderate line. Opposing candidates competing for a moderate cross-nomination would have clear incentives to moderate their policy views, behavior, and rhetoric. Similarly, this cross-nomination can be a useful differentiating signal (and electoral reward) for moderate candidates who deviate meaningfully from the polarizing aspects of their major party.

Of course, these pressures are in tension with those during a major party primary, which can lead to the nomination of candidates catering to the party base. However, the presence of a moderate nomination on the general election ballot could limit the ability of such candidates to conceal their controversial positions in the general election and feign moderation. This dynamic could also impose a helpful degree of realpolitik into the primary nomination contest by illustrating more clearly the number of voters in the middle who are likely to oppose an extremist candidate. A party facing the prospect of continued losses at the hands of moderates fusing with the other side would therefore have strong incentives to correct course, elevating candidates capable of competing for median voters and the moderate ballot line.

After repeated attempts to build a new political home for moderate voters premised on the idea of separate candidacies—the aborted No Labels bid in 2024 just being the most recent example—the emergence of a serious party fusing from the center would not just be possible, but likely. Many of the compelling reasons that deter people—elites and voters alike—from joining and working with minor parties today would not apply when the strategy of running non-competitive protest candidates is supplanted by targeted cooperation to draw candidates to the center and broaden electoral coalitions behind competitive candidates. The latent demand is self-evident: The last decade has produced a staggering number of new interest groups, advocacy organizations, PACs, and other political associations representing viewpoints marginalized by the two major parties, with several of the most influential lifting up traditional conservatives who are committed to the rule of law and oppose the isolationist and nationalist turn of the GOP.

By making it possible for another party to accrue and exercise meaningful political power, we could also see a softening of some rigidly binary features of the current political system. Making more complex, even to a modest degree, the persistently binary structure of political conflict might interrupt the self-reinforcing “doom loop” dynamics observed with affective polarization and other worrisome indications of democratic and civic health. Allowing people to cast a meaningful vote on the ballot line of a party that more closely represents their views and priorities could also mitigate the sense of disillusionment and frustration many voters express when limited to choosing between the two major parties.

Anti-Fusion Statutes Burden Fundamental Constitutional Rights

Anti-fusion restrictions are not simply bad policy: Their legality has been questioned since the first bans were enacted in the 1890s. There is no doubt that the legislative intent was to suppress political competition and entrench partisan rule, and post hoc rationalizations invoke far-fetched hypotheticals that defy logic and have never materialized across thousands of fusion elections. The laws impose severe burdens on associational, participation, and voting rights of minor parties, their candidates, and their voters; collectively, these burdens subject minor parties to facially unequal treatment vis-a-vis their major party peers. Preventing a party from nominating its preferred, qualified candidate frustrates the core associational purpose and function of a political party and denies the party’s members an opportunity to use their ballot to register support for their party and their nominee—a privilege granted to major party voters without restriction. Minor parties and their voters are instead compelled to campaign for and support a competing party (diminishing them to a de facto interest group or Super PAC) in order to vote for their own nominee.

A number of legal challenges were filed at the turn of the 20th century, and, contrary to the standards of judicial scrutiny today, courts largely upheld the statutes by simply deferring to legislative prerogative. In contrast, a New Jersey court in 1907 concluded that an earlier version of the state’s anti-fusion laws violated the state’s constitution because “the Legislature has no right to pass a law which in any way infringes upon the right of voters to select as their candidate for office any person who is qualified to hold that office.” New York’s high court quickly followed in 1910 and 1911, expressly holding that legislative efforts to prevent fusion ran afoul of the state constitution.

It was not until the 1990s that anti-fusion laws once again faced judicial scrutiny. In 1991, the Seventh Circuit rejected a federal constitutional challenge brought by the Labor–Farm Party of Wisconsin seeking to cross-nominate a statewide candidate. However, three circuit judges appointed by President Reagan—Kenneth Ripple, Richard Posner, and Frank Easterbrook—dissented from the denial of rehearing en banc, arguing that the anti-fusion laws imposed substantial burdens, lacked serious justifications, and therefore likely should not withstand constitutional scrutiny. The Eighth Circuit agreed with this view several years later, striking down Minnesota’s anti-fusion laws for impermissibly burdening associational rights.

In 1997, a divided U.S. Supreme Court reversed, with Justice Rehnquist authoring a majority opinion holding that the challenged laws did not violate the First Amendment, over dissents from Justices Souter, Stevens, and Ginsberg. Legal scholars including Samuel Issacharoff, Richard Pildes, Richard Hasen, and Elizabeth Garrett denounced the decision for breaking from precedent to sanctify restrictions because of, not simply in spite of, their anti-competitive purpose and effect. Criticism across the ideological spectrum has persisted into the present day.

In recent years, scholars and advocates have refocused attention on ways in which anti-fusion laws violate state constitutions around the country. A core tenet of federalism is that a state court, not the U.S. Supreme Court, has final say on the meaning and scope of provisions in its state constitution, and many states have already recognized that their protections for fair and equal political participation are much more robust than those afforded under federal law. As a result, state constitutional lawsuits challenging state election laws frequently prevail, even when analogous claims under federal law are foreclosed.

Drawing on this promise, several state constitutional lawsuits challenging anti-fusion laws are either pending or expected soon. In New Jersey, a group of voters formed the Moderate Party in 2022 to cross-nominate Republican and Democratic candidates committed to moderation, compromise, and the rule of law, providing a “political home for centrist voters” and lifting up the priorities of the “exhausted majority” frustrated by the status quo. After their first cross-nomination was rejected by election officials under the state’s anti-fusion laws, they filed a lawsuit challenging the constitutionality of those restrictions. Their claims attracted supportive amicus briefs from leading scholars and advocates spanning the ideological spectrum, from the Brennan Center for Justice, the ACLU of NJ, and former House Democratic Leader Dick Gephardt to the Cato Institute, NJ Libertarian Party, former Republican Governor Christine Todd Whitman, and a top legal advisor to President George W. Bush. The appeal remains pending as of May 2024.

Groups of moderate voters in Kansas and Michigan have charted a similar path, forming new parties to have a ballot line that reflects their values, not to run candidates destined to lose elections, but instead to cross-nominate competitive candidates in the hopes of combating extremism and strengthening the political center. If officials apply the current anti-fusion laws to prevent their cross-nominations in upcoming elections, they will likely challenge these decisions as violating fundamental rights guaranteed under each respective state constitution. Nascent efforts along these lines are in development in several other states as well. If successful, tens of millions of voters will have more expressive voting freedoms to support new center-oriented parties and policymaking.

Conclusion

Anti-fusion laws were a partisan innovation at the end of the 19th century meant to limit political competition and inhibit cross-ideological collaboration. Those restrictions were unwarranted at the time, and today they are an underappreciated hurdle on the path towards a more responsive and dynamic politics. Nor are they defensible as a matter of constitutional principle: They directly infringe fundamental political rights meant to “secure vital channels for influencing public policymaking, demanding responsiveness, and ensuring political accountability.” No single reform will address the extraordinary challenges facing U.S. democracy in the 21st century, but the removal of anti-fusion restrictions is a modest but impactful change worthy of serious consideration.

This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.