A legal brief filed late last week seeks to have a Dane County judge declare that an 1897 law banning the practice of fusion voting is unconstitutional because it restricts the rights to a “free government,” equal protection and freedom of speech through a law that was passed to explicitly create a partisan electoral advantage. 

The motion was filed on Friday in a lawsuit brought last year by United Wisconsin, a nascent centrist political party hoping to offer voters an alternative to the “duopoly” of the Democratic and Republican parties. The group is represented by the voting rights focused firm Law Forward. 

Fusion voting is a practice through which multiple political parties can nominate the same candidate to the ticket. Under the system, a minor party such as United could choose to nominate its own candidate, but more often the party would endorse one of the major party candidates. Voters would be able to cast their votes for the same preferred candidate under either party line. 

At a conference on fusion voting hosted at UW-Madison last year, political scientists and proponents of the system said that in theory it can give minor parties more influence. A third party candidate under the current system is unlikely to win, but a minor party’s policy preferences are harder to ignore if the party has just enough sway to swing an election result in either direction.

The brief describes a hypothetical congressional race in which United cross-endorses the Democratic candidate, given the name Olson. After the hypothetical votes are counted, the Republican candidate has earned 48.2% of the vote on the Republican ticket while Olson has earned 45.9% of the vote on the Democratic ticket and 4.9% on the United line. When added together, this gives Olson the win with 50.8% of the total vote. 

In Wisconsin, where elections are often decided by single digit margins, this could result in meaningful considerations of the desires of the minor party voters — rather than the current system under which third party candidates, such as Ralph Nader in the 2000 presidential election, are seen as spoilers who can pull enough support away from the closest ideological major party candidate to help the other side win. 

“That is fusion voting in action. United Wisconsin will claim, with merit, to have helped her over the finish line,” the brief states. “No doubt Olson will be more attentive to her ‘home’ party, but if she’s a competent politician, she won’t ignore the priorities of the moderates and centrists in the United Wisconsin Party. If she does, United Wisconsin, and its key bloc of voters, might cross-nominate her opponent in the next election.”

Fusion voting is often considered alongside ideas such as ranked choice voting and multi-member congressional districts as a reform proposal that could help prevent the country from sliding into an authoritarian government. 

“Fusion offers the opportunity to create meaningful new political identities,” the legal brief states. “It allows voters of all ideological stripes to vote for their values without having to support a rival or opposing party with a mostly intolerable program.”

In the 19th century, fusion voting was used across the country. The practice was phased out in most of the country but exists currently in New York and Connecticut. The brief, which includes as many examples from history and political science as it does legal citations, states that Wisconsin’s fusion voting ban was enacted by the Republican Party in 1897 as it surged to become the state’s dominant political force in a direct effort to limit the ability of the Democratic Party and other minor parties to win. 

“History shows the ban was enacted as a form of invidious political discrimination,” the brief states.

The lawsuit argues the state has no direct interest in maintaining the power of the Democratic and Republican parties, so the law must be put under “strict scrutiny” for fundamentally restricting the speech of Wisconsinites. 

“When political parties cannot nominate their candidates of choice, they cannot effectively organize, campaign, advance priorities, or exercise political power,” the brief states. “They are relegated for perpetuity to a spoiler role, whereby any electoral effort they make is not only futile in advancing their own candidate and platform, but also seriously risks helping their least-favored major-party candidate win the race and get to govern. While the ban still allows political parties to nominate most candidates, it prohibits them from nominating the only candidates who can win; and while it allows political parties some degree of speech, it constrains their speech in the context for which political parties exist — the ballot.”