For about a century, New Jersey has legally barred political parties from nominating candidates of other parties as their own nominee.  Known as “fusion voting,” the prohibited practice has been drawing renewed attention during these times of intense, hyper-polarization, as a means by which democracy can be strengthened.  A conference held at Princeton University brought together a number of figures to speak about the legal challenge to return fusion voting to New Jerseyans.  Disparate voices joined at the conference, such as former Governor Christine Todd Whitman, who served in Trenton as a Republican and is now a co-leader of the Forward Party, and neoconservative kingpin Bill Kristol, an arch-Trump critic and a founding director of Defending Democracy Together.

Fusion voting had been a permitted practice in New Jersey until the 1920s, Udi Ofer told InsiderNJ.  Ofer is a visiting professor and lecturer at Princeton University as well as Founding Director of the Policy Advocacy Clinic at Princeton’s School of Public and International Affairs. 

“Throughout the 1800s and early 1900s, fusion voting flourished in New Jersey, as it did across the country,” Ofer said. “Minor parties and their voters played a much bigger role in politics than we have become accustomed to today. In the 1920s, in New Jersey—and it was part of a national wave—the two major political parties passed laws which made sure that candidates in New Jersey can only appear on the ballot as the nominee of a single party. This was part of the successful attempts by the two political parties to have a monopoly over voter choice. We have a situation under the current system. Third parties, like the Moderate Party, are prevented from nominating their preferred candidates on the ballot. This forces third parties to have their voters either choose the Democrat or Republican Party, or to choose a spoiler. Few parties want to play that role. The reason that this lawsuit was brought is because we want to give voters a choice. Voters don’t want to be put in a position where they must choose between wasting away their votes, or choosing a candidate that they don’t fully believe in.”

The Moderate Party took headlines in New Jersey during the CD-7 race between then-incumbent Congressman Tom Malinowski (D) and Tom Kean Jr. (R).  Republicans and unaffiliateds unsatisfied with Kean as an option–and attempting to send a signal to Washington DC that the political divide had gone too far–were unwilling to become Democrats and leave the Republican Party.  The Moderate Party formed up to support Malinowski, unsuccessfully trying to list him as their nominee.  Moderate Party voters could “vote their conscience” as the logic went, without necessarily subscribing or supporting the Democratic Party.  In the end, Kean prevailed, but the challenge has been back in the courts. 

Malinowski himself obviously stood to benefit from fusion voting and made his own support for the case known.  “I think if [fusion voting] were available nationally, the conversation about 2024 would be completely different and one that would make us feel much better about the political future of our country.”

Ofer said that 2.3 million voters were unaffiliated with a party in New Jersey. “That’s 37% of all voters. The difference between unaffiliated voters and Democratic voters is actually pretty close. There are 2.5 million Democratic voters, and we have seven counties in the state where there are more unaffiliated voters than there are Democrats or Republicans. There are millions of voters who are put in a position every year where they have little to no options on Election Day.  Anti-fusion laws relegate minor parties like the Moderate Party to an electoral underclass. The movement right now for fusion voting in New Jersey is motivated by the belief that a healthy democracy requires a free and fair political process, and that the rigid two-party system is driving extreme polarization.” 

Polarization across the parties has become so intense that in many cases, among voters, the brands are not just right and wrong, but good and evil.  Hyperbolic, fever-pitched rhetoric can lead to disastrous consequences, as has already been seen in instances of political violence in the US recently. 

Bill Kristol said, “We’ve gone from partisanship to hyper-partisanship in Washington to polarization in the country to now what the social scientists call affective polarization where you really hate the other party… which is bad for the country; and it’s not just a Washington problem of how are they going to pass the [continuing resolution] and keep the government open.”  Kristol said that fusion voting was “an important thing” to revive. 

Governor Christine Todd Whitman has been championing fusion voting and other electoral reform initiatives.  Like Kristol, she is a Never-Trumper and has been monitoring the political climate with alarm.  With her work in the Forward Party, the Republican teamed up with past Democratic presidential candidate Andy Yang, representing two opposite perspectives, but showing they can agree that healthy democratic change is essential and recognized by both sides.  “We can break the cycle of hyper-partisanship, polarization that pushes people to the extremes by embracing systematic reforms like fusion voting,” Whitman said. “If fusion voting can bring conservatives like Bill Kristol together with progressive voices like those from the Working Families party, then maybe we have a chance to create a political home for everyone willing to work together in good faith to find practical ways to make this country better.” 

Ofer said that fusion voting would strengthen democracy and make politics, as a whole, more representative for voters who feel that the political elite is out of touch and disconnected from real issues.  Furthermore, the fact that this has not always been the case is something more people are unaware of, a century later. 

Nevertheless, fusion voting is not an alien concept elsewhere.  Beyond these shores, fusion voting is common, but within the United States, New Jerseyans need only look to their neighbors.  “New York and Connecticut are the only two states in the country that have fusion voting,” Ofer said.  “In New York, the two political parties tried to ban fusion voting as well, but a lawsuit was filed with the courts many decades ago and they struck down the ban. I think it’s made it a more vibrant democracy. Third parties that play constructive roles, whether the Working Families Party or the Conservative Party, don’t act like a spoiler. That’s the whole issue here.” 

As evidenced by the variety of voices represented at the Princeton conference, elements on the left and right of the aisle who want to turn down the temperature and protect the democratic nature of politics have made their support for fusion voting known.  Ofer noted the broad spectrum of support for fusion voting in New Jersey.  “How many issues can say that they have the support of former Governor Christine Todd Whitman, five former members of Congress (two Republicans and two Democrats, including former House Majority Leader Richard Gephardt), the ACLU of New Jersey, the Cato Institute, the Rainey Center and the Libertarian Party? They all submitted amicus briefs in support of fusion voting.”

 At a time when cynicism is high and hope is low, a favorable court ruling to undo a century of prohibition on fusion voting might be the key to re-engagement.  Labels and party affiliations are strong—the R or D beside one’s name is no trivial matter.  But if fusion voting can provide the vehicle for reducing the tribal barriers that are party memberships, then society itself would, in theory, be more invested in a political process they all too often dismiss out of hand.  “Support for fusion voting crosses the political spectrum and is united by a common belief in a vibrant democracy with free and fair political competition,” Ofer said, “a belief that this will help reduce polarization in America and help build a healthy democratic system. Voters want a choice and fusion voting would provide a home to the millions of unaffiliated voters in New Jersey who have little to no options on Election Day.” 

Ofer seemed confident that the Moderate Party’s case in support of overturning the ban was a strong one.  He cited the strengths of the New Jersey State Constitution and the First Amendment as being a solid framework for the case.   

“I think it’s fair to say that, and the polling has backed this up, the voters are just fed up with the two political parties, they’re tired,” Ofer said.  “The New Jersey Constitution is known in legal circles as providing more rights for the people of New Jersey than the federal constitution. It’s something that constitutional scholars here in New Jersey take a lot of pride in.  The New Jersey constitution is considered incredibly expansive in its protection of rights, and particularly what we call First Amendment rights or free speech rights. This lawsuit makes the case that the ban on fusion voting violates the right to vote because third party voters are prohibited right now from supporting their party’s nominee on the ballot. You can’t have your voice heard, and that’s a fundamental right that we have in America.”

One of the biggest challenges to reinstating fusion voting, of course, is the fact that the two-party duopoly remains in effect.  While fusion voting could benefit a political party by having non-party members championing their candidate, it also requires allowing other voices in an otherwise cornered conversation.  That could provoke meaningful political discourse and disrupt the status quo, something which would not necessarily be in the interests of powerbrokers who would be forced to reconcile a loss of influence.

“[I]t is probable in my mind that the abandonment of fusion voting was coincident with the formation and concentration of power in the bosses,” former NJ State Attorney General John Farmer said.  “So, if that’s what you’re trying to do, the last thing you want to have is a ballot that has multiple parties. I think if you had the opportunity [through fusion voting] to vote for a candidate who is more aligned with your views, even if it wasn’t in your party, I think that it could have a salutary effect of driving things toward the center and reducing some of the polarization that has resulted from safe districts.”

By attempting to court third parties for their support—and ultimately their nomination—Democrats and Republicans would be compelled to broaden and compromise for the benefit of the greater whole.  A candidate who received 45% of his or her own party’s vote, as a hypothetical, might win with another 6% from another party.  The third party would not have capitulated their own values or positions, but made it know that their voices were the ones to carry the candidate to victory and should be listened to as much as the candidate’s own party base.  This type of electoral coalitionism could not only communicate powerful messages within the supported major party itself, but also inform voters as a whole where a given candidate stands, based on their appeal to additional parties. 

For the short-term, however, supporters of fusion voting have to get their day in court.  From there, political lever-pullers will determine their best strategies for reconnecting with unaffiliated and third-party members.

Ofer continued, saying that the ban on fusion voting violates the right to free speech and political association outside the two-party system.  Third parties are forced to support either the Republican or Democratic parties, or risk being “spoiler” votes.  “This violates the right to assemble and make opinions known to representatives, a right that is spelled out in the New Jersey Constitution, because it prevents minor voters from acting collectively, in order to convey their preferences and violates the right to equal protection.”   

Given the language in the New Jersey Constitution and that of the Bill of Rights, Ofer feels that in the end, it seems likely the courts will overturn the ban on constitutional grounds.  “There has been no ruling on the merits yet. It’s taking too long for the courts, in my view, to take this up. But they’re going to have to eventually.” 

As prohibition on alcohol was enacted in the 1920s but eventually dismissed, perhaps cross-party voting could be yet another 1920s era prohibition to spiral down the drain.  Such a ruling may help restore some voters’ faith in elected leadership as their legitimate voice, acting as a bulwark or pressure-release for dangerous voter apathy, discontent, and anger.