On Tuesday, the Pennsylvania Supreme Court will hear oral argument in a case of immense political consequence, regarding fairness in elections, that almost no one has heard of. Both the Fourteenth Amendment to the U.S. Constitution and the basic citizen rights enumerated in Article I of the Constitution of Pennsylvania suggest that the plaintiffs have a very strong case.
If the court should rule for the plaintiffs, it would make a stunning gift to American democracy at a time when such is truly needed. It would provide an easy exit from dysfunctional partisan polarization for those prepared to take it. It would both increase voter turnout, and ensure more precise information on real voter preferences. And it would show more respect for minority political views, and do so in a constructive way. It does all of this by returning to a system once legal in Pennsylvania that allows a way out of the Hobson’s choice that our single-member district, winner-take-all electoral system now forces on voters and minor parties they support: to “waste” their votes on candidates with no serious chance of winning, or to “spoil” elections by draining enough votes from their second choice to give victory to their opponents.
Working Families Party & Rabb v. Commonwealth concerns current Pennsylvania law on political party “fusion” or “cross-nomination”—the nomination of a candidate by more than one party, with votes cast on any nominating party’s ballot line combined in that candidate’s total against rivals. Such fusion once thrived in Pennsylvania, and all the rest of the United States. Particularly after the Civil War, it was used by major and minor parties, up and down the ballot, throughout the country. It helped underwrite a lively mass democratic politics that astonished observers, producing voter turnout levels virtually unique in the world, and far greater than today’s.
But fusion was widely banned after the national defeat of the Populists (People’s Party) in the 1896 presidential election. The Populists, like the farmers who established the Grange and the new industrial workers who joined the Pennsylvania-based Knights of Labor, protested the growing corporate domination of American politics. They argued for a more democratic commonwealth, and made ample use of the fusion tool. Its elimination was part of the spoils of their defeat. Led first by Republicans, later the Democrats, later still the two parties together, anti-fusion laws swept the United States. The laws were openly and explicitly designed by the two dominant parties to entrench their duopoly control of government power and public debate. As a Republican legislator from Michigan put it at the time of his state’s passage of its fusion ban: “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.”
Pennsylvania was late to this democracy-bashing game, with fusion continuing to flourish into the first third of the last century. Most governor and congressional elections, and a vast swath of state legislative ones, were decided with fusion voting. And the minor party votes really counted: the 1930 victory of Republican Gov. Gifford Pinchot was made possible by the support he got on the Prohibition party line.
But eventually the major parties in Pennsylvania too, for the same reasons as elsewhere, prohibited the practice. Since 1937, but for elections for school boards and county judges, fusion has been nominally barred for all elections in the state. Except that, very shortly after they enacted this general ban, the major parties also devised and got court approval of a general exception to it, in practice available only to themselves (and not to minor parties), which continues to be used by at least a few major party candidates each cycle.
The facts and argument in the case now before the court are these. In 2016, a newly forming political party, the Working Families Party (WFP) of Pennsylvania, sought to nominate, with his enthusiastic assent, Chris Rabb, a popular, incumbent state legislator who already had the Democratic nomination. The local WFP activists hoped to persuade other voters in Philadelphia’s 200th legislative district that they should vote for Rabb under the WFP banner, and in so doing send him a positive message about the importance of housing, jobs and other topics that the new party was highlighting in its public education activities. Election administrators, citing the state ban, barred them from nominating Rep. Rabb. Both the legislator and the WFP immediately challenged the ban and its administration as a violation of Article I of the Pennsylvania Constitution and the equal protection guarantee of the U.S. Constitution’s Fourteenth Amendment. The case has wound through lower Pennsylvania courts for two years before arriving at Pennsylvania’s Supreme Court.
The Fourteenth Amendment’s equal protection clause, our nation’s basic fairness guarantee, is generally known. The relevant parts of the Pennsylvania Constitution’s Article I, in particular Section 5 on voting rights, is less appreciated. It contains the strongest and most comprehensive declaration of citizen voting rights of any state constitution. Recall that Pennsylvania’s state constitution was the very first enacted (in September 1776) after this country’s Declaration of Independence. So at its writing, the war for our freedom was already well along, and going badly. The radical American contribution to world government, the idea of a republican (i.e., representative) democracy, meaning self-rule by equal citizens choosing representatives they can change in regular elections, was still new as well as bitterly contested. Reading Article 1 today still startles. Its authors’ dedication to and clarity on the bedrock terms and conditions such a republic requires—freedom of choice by citizens and their political organizations, and equality of opportunity among them—is palpable. Article I declares that all Pennsylvania “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The WFP and Rabb argue that the general Pennsylvania ban on fusion, by prohibiting voluntary cross-nomination of candidates in ways known to hurt less well-known parties, violates Article 1 on its face by restricting free and equal exercise of suffrage rights, and violates the Fourteenth Amendment both for this known effect on minor parties and, especially as administered in Pennsylvania, by invidiously discriminating against minor parties. They seek a court decision restoring a clean and simple fusion option applied to all parties, of the sort that Pennsylvania once had.
Restoring a clean fusion option would have many positive effects. It would enable responsible party leadership to reach across the aisle, or to minor parties, to construct majority voting coalitions sufficient to counter-balance ideologues on both the right and left with no interest in constructive government. By giving minor parties a chance to fuse with major ones, while counting their votes on their own line, it would widen the number of functioning party voices in our politics, and likely increase turnout too.
But it would also incline minor parties to more responsible behavior. Minor parties on the right or left have typically had no choice but to run “stand-alone” candidates candidates—noble but doomed, as a WFP leader once put it. A minor party in Pennsylvania knows that its standard bearer has no chance of winning, but sometimes has a real chance of spoiling, as an unhappy by-product of exercising their rights to free association. How much more constructive to allow—as Pennsylvania once did and a handful of other states still do—minor party members to nominate the candidate of their choice, even if that candidate also enjoys the support of a better known, major party? And throughout it all, politicians and government leaders would have a much clearer sense of the real distribution of voter desires. Instead of assuming away suggestions for reform, we could test public support where it matters, at the ballot box, through fusion candidacies partly designed for that purpose.
American party politics is not working well today. Partisan polarization is higher than at any time since the Civil War. For a variety of reasons, many voters don’t see their own values reflected in our coarse, hyper-partisan political dialogue, and this is simply not healthy for a democracy. Respect for government competence and accountability is also at an all-time low. Restoring fusion to Pennsylvania would help address this situation, but as history shows, it is sure to be resisted by the major parties. They mistake their monopoly on government for a license to rig electoral rules to their benefit alone. The public be damned.
As a practical matter, then, rescuing fusion from the dustbin of American history falls to the court. The Pennsylvania Supreme Court is equipped by Pennsylvania’s constitution to make that gift.
Miles Rapoport is Senior Practice Fellow in American Democracy at the Harvard Kennedy School, and is the former Secretary of the State of Connecticut.
Frances Fox Piven is distinguished Professor Emerita of political science and sociology at the Graduate School of the City University of New York. She is a past president of the American Sociological Association, The Society for the Study of Social Problems, and a former vice president of the American Political Science Association.