The Independent View: NY Fusion Law Affects the 2018 General Election

This post developed after reading an Article in the New York Law Journal by Jerry H. Goldfeder, Special Counsel at Stroock & Stroock & Lavan, teaches Election Law at Fordham Law School and the University of Pennsylvania Law School, and is the Author of “Goldfeder’s Modern Election Law” (NY Legal Pub. Corp., Fifth Ed., 2018) and Myrna Pérez, the Director of the Voting Rights and Elections Project at the Brennan Center for Justice at New York University School of Law, and regularly Litigates Voting Rights Cases.

New York Fusion Voting

Electoral Fusion Voting is an arrangement where Two or More Qualified Political Parties on a Ballot list the Same Candidate, Pooling the Votes for that Candidate. Distinct from the Process of Electoral Alliances in that the Political Parties remain Sseparately Listed on the Ballot, the practice of Electoral Fusion in Jurisdictions where it Exists allows Minor Parties to Influence Election Results and Policy by offering to Endorse or Nominate a Major Party's Candidate.

New York’s Fusion Laws are back in the News in 2018. New York Rep. Joseph Crowley (D-14th District), Chair of the House Democratic Caucus and Chair of the Queens County Democratic Party, Lost his Democratic Party Re-Nomination Bid last month to Alexandria Ocasio-Cortez. But he Ran Unopposed in the Working Families Party (WFP) Primary, and, therefore, he is the WFP Candidate in the November General Election.

Crowley, although he remains on the Working Families Line, Immediately Endorsed Ocasio-Cortez for the Congressional Seat.

New York has Eight Political Parties, and a Candidate can Consent to Run on Multiple Lines if those Parties ask him or her to do so. A Democratic Candidate will frequently Run on the Working Families and Women’s Equality Lines, and Republicans will often get the Conservative and Reform Party nods.

The Independence Party is known to support either, and the Green Party goes it alone. Candidates for Supreme Court Justice sometimes Run on All Major Party Lines. So, it is not Unprecedented for a Candidate who Loses a Major Party Primary to appear in the General Election on another Party Line.

The Green Party has a Party Rule that eschews fusion, and routinely Nominates only Members of its Own Party rather than Engage in Deals with other Parties.

The only way Crowley could be Removed from the Ballot is by Dying, Moving out of the State because of Various Residency Requirements, or Running for another Office if eligible. Putting aside the Option of Dying, or in a State Race being Convicted of a Felony, Crowley dis not wish to Move or Run for some other Office, like Assembly or State Senate. Crowley bluntly said that such a Switch would be a “fraud on the voters.” In both cases, then, someone No Longer Seeking an Office remains on the Ballot, a Situation that is obviously Confusing to the Voter.

Every now and again, there is a smattering of Public Sentiment to Eliminate Cross-Endorsements and Fusion Voting on the Theory that there is too much Horse Trading between and among the Parties. Yet, Fusion certainly has its Supporters.

It allows a Party to Build Coalitions with other Parties and provide Greater Support for Particular Candidates. For Minor Parties, it also is a way to get some of their Issues, to become part of a Candidate or Elected Officials Platform. But a more interesting Reason for Fusion, every Four years, the Governor's Election determines what Parties gets Ballot Line Qualified for another Four years by getting a minimum of 50,000 Votes for Governor.

Election Procedures can have far reaching Political Significance. Whether or not the Rep. Crowley Situation leads to a Change in the Law, or even an Impact on the Upcoming Congressional Election, remains to be seen.