Buried in the inscrutable tangle of Pennsylvania’s election code, nested several layers deep in a technical subsection, and totaling all of six lines is a clause that dissolves the power of minor parties in the state.
Although it amounts to an administrative rule—it’s one of several requirements for submitting a valid filing paper—it’s a fingerprint of the national party realignment that occurred at the end of the 19th century, a fight that eventually calcified the two-party system as we know it today.
Recently, these few lines have become the centerpiece of a lawsuit against the Commonwealth of Pennsylvania, launched by one of the minor parties the rule effectively neuters—the Working Families Party. If the WFP suit succeeds, the clause would be weeded from the election code—a relatively minor edit, but one that could change elections in the state dramatically. It would allow, for the first time in nearly a century, an electoral maneuver that was once commonplace but has since become rare in all but a few states: running a candidate under more than one party, a process known as “electoral fusion.”
As it stands, while voters can officially choose any party, the only options commonly considered “legitimate” are Democrat or Republican. But a record number of people insist that neither option represents them—42 percent, the highest Gallup has seen in 25 years. Because of that, some people just don’t vote, while others, like 26-year-old Virginian Nathan Mowery, are voting for a third party to register their frustration with the two-party system. “I’m casting a protest vote because it makes it visible to major parties that there are people who are motivated to vote but are unwilling to vote for either of them,” he told The New York Times. In the current party system, those votes are considered “wasted.” Fusion provides a legitimate channel for people like Mowery: You can vote for the party that champions your values, and, when aggregated with those of the major party they’re fused with, that vote could have a significant impact.
Issues that the major parties have glossed over or ignored completely often find a home in minor parties. The Working Families Party, for example, has for years been fighting for paid sick days, free universal preschool, and untangling the racist, gerrymandered districts that have put a stranglehold on state legislatures—and it has done so without the kind of corporate oversight that turns people away from the Democratic Party. For people who want these issues at the forefront, said Jordan Yeager, one of the lawyers on the Pennsylvania case, fusion makes their voices heard.
“I believe that the more voices we have in the political system the better,” he told me. “The more that we can break down the artificial institutional barriers that get in the way of that voice being heard—and therefore get in the way of those interests being advanced—the better.”
Chris Rabb helped launch the lawsuit by filing as a candidate in Philadelphia for the Pennsylvania House of Representatives on the slates of both the Democratic Party and the Working Families Party. He argues that if a minor party’s contribution to a fusion election is significant—as was the case with the election of Connecticut Governor Dan Malloy in 2010, who eked out a narrow victory over his Republican opponent with 26,308 additional WFP votes—then it sets up an expectation that the winner will address the issues important to the bloc of voters he or she benefited from.
“That sends a real message that can only be interpreted one way,” Rabb said. “It’s one thing to express that we are engaged through voting, but how we express that through casting ballots—those nuances can’t be suffocated.”
The Working Families Party’s fight for fusion voting goes back to the 1990s, when its predecessor, the New Party, launched a similar push on different constitutional grounds. It filed independent lawsuits asserting that anti-fusion laws violated the First Amendment. Though one of those cases made it to the Supreme Court, it failed, which led to the New Party’s dissolution and reconfiguration in 1998 as the Working Families Party in New York. Since then, the WFP has played a significant role in electing New York City Mayor Bill de Blasio and other progressive candidates in New York, Connecticut, and the six other states where fusion voting is legal.
According to Joel Rogers, one of the architects of the New Party and director of the current Pennsylvania litigation strategy, he and New Party co-founder Danny Cantor agreed that, after 20 years, it was time to reboot the effort.
“It might be a miracle, who knows,” Rogers told me. “I might be in front of the Supreme Court with [Justices Sonia] Sotomayor and [Elena] Kagan instead of [Antonin] Scalia and [William] Rehnquist and a bunch of other really reactionary types, and they’ll say yeah, of course, this is obvious, we should have decided [the previous case] differently.”
But that’s if the lawsuit is struck down by the state supreme court. Currently, the case is stalled in a lower court, pending a hearing in December that would decide its fate. Regardless, said Joe Dinkin, national communications director for the WFP, the plan is to mimic what they’re doing in Pennsylvania in other states, working to find where there are opportunities to dash the anti-fusion codes from the law books, just as they were implemented at the turn of the last century. Meanwhile, the party will continue the grassroots organizing that makes up the majority of its work, fighting for affordable housing, campaign-finance reform, “banning the box” (the campaign to get employers to remove from job applications the check box that asks applicants if they have a criminal record), and other initiatives. But a fusion success in Pennsylvania—which has an entrenched party machine and districts warped by gerrymandering—would help the party understand how to overcome similar state obstacles in the future, said Brandon Evans, Pennsylvania state director of the WFP.
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Before the end of the 19th century, electoral fusion had been so widespread and popular that, in regions like the Midwest, joint candidates appeared in every election. It was a successful strategy for the Democratic Party in particular, which joined forces with minor parties like the Populist and Labor parties to retain an edge over Republicans.
Because of fusion, major and minor parties could forge a mutually beneficial relationship: Major parties received the additional votes funneled from the minor parties, which were very frequently a deciding factor in elections; in return, minor parties had a say in the selection of the joint candidate, and their particular demands became a substantial part of the political conversation. As a result, American parties in the mid-19th century navigated a diverse and competitive political landscape, and minor parties made a significant showing: In 1892, a year before the first anti-fusion clause was introduced, neither major party captured the majority of the popular vote in three-fourths of the states in the presidential as well as in gubernatorial elections.
All this came to an end with the introduction of a new balloting system, which opened the floor to other election-code changes writ large. Republicans, frustrated by the successful cooperation among the Democrats and minor parties, took the opportunity to insert anti-fusion clauses like Pennsylvania’s into state election codes across the country, arguing—as, in fact, the Commonwealth did in the current Pennsylvania case—that they benefit voters by preventing ballots from descending into unreadable disorder. Still, their motives back then were often more transparent, with one Michigan politician quoted in the Detroit Free Press admitting outright, “We don’t propose to allow the Democrats to 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.”
One by one, states began inserting anti-fusion language into their election codes, which in many cases (like Pennsylvania) was simply a requirement that candidates’ filing papers include a written statement swearing they were running under only one party. By the first years of the 20th century, half the states did not allow fusion. Currently, it’s illegal in all but seven states, in addition to New York: South Carolina, Connecticut, Oregon, Vermont, Mississippi, Idaho, and Delaware.
Some experts have attributed the rigid two-party system we have today to the Republicans’ success. Minor parties, without the power they were granted with fusion, withered into disuse, if not irrelevance—the place where votes go to die. And while fusion could conceivably fix this, said Steve Masters, the other lawyer working on the WFP’s Pennsylvania case, the idea of fusion doesn’t occur to most voters as an option.
“No one alive had it as part of their life,” he told me. Even seasoned politicians aren’t aware of it. When Masters told a 40-year veteran of the Pennsylvania legislature about fusion, he responded in surprise. “Really?” Masters recalled him saying, “You mean it’s more than the Republicans and the Democrats?”
The Working Families Party, in their fight for fusion, is thinking in practical terms for the future. The presidential election has left people at once discontented and, in the case of Bernie Sanders supporters, mobilized without any clear direction. What role will Our Revolution have in the future political landscape?
“Presumably it’s going to need to have some sort of institutional structure inside the Democratic Party,” Rogers told me. “And a fusion party is the natural way to do that.”
At a rally in Philadelphia in September, Michelle Obama addressed voters who might refuse to make a choice between the two major parties. Moments before, she had expertly roused the crowd to applause over the power of one vote, recounting the few it took for her husband to win in 2012. Then her face darkened. Her voice dropped. Here’s the truth, she said. “If you vote for someone other than Hillary,” she warned, scanning the crowd, “or if you don’t vote at all, then you are helping to elect Hillary’s opponent.”
Elizabeth Warren, Bernie Sanders, and even Noam Chomsky have agreed that this is the case. The Working Families Party seeks to complicate this, starting with Pennsylvania and working out from there. The future, Rogers said, isn’t certain, but he and the rest of the party hope that the institutional change they’re vying for will nudge it in a better direction.
“My friend Tom Ferguson says if you want to see a happy ending, go see a Disney movie,” he told me. “This thing is an attempt to heal the soul of American politics, a little bit, by getting some sort of intelligent way of dealing with diversity of opinion within the party system. That’s what fusion does. We just want to bring that back.”