Multiparty Democracy in the US: The Legacy of Timmons v. Twin Cities New Party
September 23. 2021
It’s been a while since I posted the first part of this series. You can find it here. This series will combine with our ongoing discussion of redistricting in the next post.
Some of you might remember a minor party that was active in the 1990s called the New Party. The party’s main objective was to get states to enact fusion voting in order to make minor parties more viable. The New Party’s strategy was to sue states to force them to enact fusion laws. Its legal argument was that denying fusion voting was an unconstitutional infringement on the right of association. This strategy culminated in the 1997 Supreme Court decision in Timmons v. Twin Cities Area New Party.
In Timmons, the Court held by a 6-3 vote that Minnesota’s ban on fusion voting did not violate the First Amendment’s free association clause. It is in many ways an indictment on how little judges know about the democratic system. At several points in the majority opinion, it is questionable whether Chief Justice Rehnquist (the author of the decision) even understood what fusion voting was in the first place. The opinion is riddled with easily disprovable conclusions about how disruptive fusion voting could be. You wouldn’t know that, however, because the majority wouldn’t even consider evidence that could easily have been taken from New York state’s long history of fusion voting. For some reason Rehnquist thought would be too burdensome to make Minnesota address the evidence, even though Justice Stevens had no problem considering it and applying it to his reasoning in his dissent.
The holding that concerns us here is that states have an important government interest in maintaining the two-party system. Rehnquist seems to consider this an obvious conclusion, even though courts have time and time again dismissed that as a legitimate rationale for election laws and even though Minnesota did not even raise this argument to support its ban on fusion voting (which is what Souter hung his hat on to avoid discussing it in his dissent).
At this point you might be thinking, “what is fusion voting anyway?” If you live in New York you are probably familiar with it, but not in many other places. Most jurisdictions in the US use the “Australian ballot,” in which there is only one party line for each candidate and each candidate may only appear once on the ballot. Tallies from nominees of different parties cannot be combined. In fusion voting, every party can nominate the candidate of its choice and a candidate can appear more than once on the ballot under multiple party designations. The votes from these multiple designations are added together and the candidate receives all the votes cast for him or her during that election across all party lines. So, for example, in New York a candidate for governor could receive the nomination of the Democratic Party and the Working Families Party. That candidate would appear twice on the ballot as the nominee of each party. Voters must choose to cast their vote on either the Democratic line or the Working Families line.
Let’s say that hypothetical New York governor candidate wins 100,000 votes on the Democratic line and 50,000 votes on the Working Families line. The candidate would receive 150,000 votes overall. Under the Australian ballot, the candidate would choose the nomination of the major party (because that gives her the best chance of attracting support) – in this case, the Democratic Party. In the election she receives 150,000 votes under the Democratic party line and zero votes under the Working Families Party line (because she cannot appear twice on the ballot or - if local law actually allowed that - she would not be allowed to add those votes together). On the surface, it sounds like there’s no difference in outcome. However, fusion allows for more accessible political participation than it might seem from just the outcome in this one hypothetical race.
Fusion voting is an innovation1 that helps a first-past-the-post system like ours to be more responsive to multiple political constituencies that might otherwise be shut out of the system. Its value is in elected officials knowing how much support they receive from different political perspectives. A governor elected with 33% of her vote from the Working Families Party is more likely to be responsive to the issues of concern to those voters than if 100% came from a major party line where more centrist views dominate (even if in reality, 33% of those votes come from the very same voters who would otherwise vote under the WFP line). It also gives candidates primarily associated with minor parties an opportunity to be major candidates in ways that are just not possible with the use of the Australian ballot.
Fusion voting is a fairly reasonable and easily implemented reform to our electoral system that allows all political parties to nominate the candidates of their choice. The Australian ballot imposes an unnecessary burden on minor political parties and the voters who support them. Despite the majority’s holding in Timmons, it is hard to see how there is any important governmental interest in maintaining the two-party system. Rehnquist time and again conflates “political stability” with the two-party system, as if New York hasn’t used fusion voting successfully for over 100 years. In fact, despite the formal existence of two major parties, for most of the latter half of the 20th Century there was a “hidden” four-party system that was certainly more stable than our current polarized two-party system is today.2
This “self-evident” conclusion that a two-party system is more stable than a multi-party system demonstrates the lack of political sophistication of the justices in the majority (or it’s just dishonest; perhaps it is both). Rehnquist cannot even conceive of how political stability can exist outside of the two-party system. He talks about fusion voting as if it the equivalent of mandating proportional representation, not seeming to understand that the former is a simple reform to our current system that does not offend freedom of association where the latter is a fundamental re-ordering of how we practice democracy in this country.3 Political parties have no constitutional role in our system except via the First Amendment via the free association clause. Congress and the states cannot make laws that prohibit our freedom to associate with other like-minded persons through political parties. And laws banning fusion voting do just that.
Even though the Constitution often speaks in absolutes, the rights and freedoms in the Bill of Rights are not so. They are subject to reasonable restrictions and regulations. And, where those restrictions and regulations produce a burden on those rights the courts will apply tests to see if the burdens are constitutionally justified. Most laws that apply to everyone equally will be upheld as reasonable – the courts are not supposed to weigh in on whether such laws are wise, only that they are reasonable regulations. However, when these laws produce burdens to some but not all, the courts will consider whether there is a legitimate governmental interest in the regulation itself and, if there is one, then the regulation must be narrowly tailored to address that interest.
In Timmons, the majority held that there were several governmental interests that were legitimate, including maintaining the two-party system. Rehnquist said the fusion ban was a reasonable regulation that was equally applied so there is no need to apply the higher standard. It’s a terrible decision that’s not really well thought through, as both Stevens’ much clearer dissent and Souter’s dismissal of Rehnquist’s two-party holding makes obvious.
How is any of this relevant to us? Well, this decision pretty much killed third party chances of competing in elections in this country except where the two major parties decide to allow for it (fusion is still legal for states to adopt; it’s just not constitutionally required under Timmons).
The lesson from this case is that if you are serious about running for office you must get one of the major party nominations. The ironic thing about this decision is that it weakens the two-party system because the monopoly of those parties undermines their legitimacy because so many people would prefer other options. Sure, party activists care about their party but almost no one else does. People support the major parties largely because it is practical, not because they are committed to the party or even think a political party matters anymore.4 Cries from party activists that Sanders or Bloomberg is not a real Democrat or Trump is not a real Republican are completely unpersuasive to many people. No one cares. Capturing a major party nomination is the only way for an otherwise unaffiliated candidate to win office 20 years after Timmons. It was probably true before, but we know it is true now.
We hear the same people who complain that this or that candidate is not a real Democrat or Republican also complain about spoilers when those same candidates consider running third party efforts. This is a bed that the major parties made for themselves. The have spent so much time, effort, and resources in protecting their monopolies on the electoral process that for most Americans they have made the argument that the party is just a means to an end. Few people care that Bloomberg was a Democrat before he ran for mayor of New York City then became a Republican because that was the most pragmatic way to win the election then became an Independent because he was not really a Republican and then when he considered running for president became a Democrat again. Party activists and hardcore supporters of opposing candidates sure case, but your typical American voter? I doubt it. This doesn’t mean Bloomberg has the support of the typical American voter; we found out last year that even a quarter billion dollars could not get people to vote for him in presidential primaries. But most people do not care about him using the party system to his political benefit. Timmons almost demands he do that if he wants to be politically relevant, let alone win elections.
Next in this series, we’ll discuss some redistricting ideas and reforms that might help make American democracy more competitive and more representative.
Fusion is not an innovation in the sense that it is new. It was the norm in the 19th Century and states began prohibiting it when third parties starting having some success with it. Fusion has been around even longer than the Australian ballot. Today, all but nine states allow some form of fusion voting. It is most commonly used in New York.
See L. Drutman, Breaking the Two-Party Doom Loop: The Case for Multiparty Democracy in America (Oxford Univ. Press 2020).
Proportional representation is not (necessarily) unconstitutional, but it does represent a significant change from practice.
There is evidence that increasingly people see party designation as an important identity to signal opposition to the “other” - particularly among pro-Trump Republicans.