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William & Mary Law School | Election Law Society

New York, Fusion Voting, and Gary Johnson – What’s an Independence-Libertarian to do?

By: Caiti Anderson

There is no state quite like New York – and not many election laws quite like New York’s, either. As one example, only New York and six other states permit fusion voting. On a fusion ballot, a candidate can be listed as candidate for more than one party. Fusion voting, as noted the 1997 Supreme Court decision of Timmons v. Twin Cities Area New Party, had its heyday during the Gilded Age. Political parties, rather than governmental entities, distributed their own ballots to voters but did not affirmatively tell voters what other parties endorsed the same candidate(s) they supported. Thus, Candidate Smith could be supported by both the Granger and Republican parties, but those who voted the Granger ballot would not necessarily know from the ballot the Granger party handed them that the Republican Party also supported Smith.

All of this changed with the contentious election of 1888, when Democratic President Grover Cleveland lost to Republican Benjamin Harrison, even though Cleveland won the popular vote by 0.8%. Harrison carried Indiana, his home state, but only through ballot chicanery: the Republican Party passed out its ballots en masse and paid men to illegally cast additional ballots. After the scandal emerged, it was too late – Harrison was president, and America was angry.

The Progressive movement latched onto this populist anger and pushed through a series of election reforms at the turn of the nineteenth century. As state and local governments began to print their own ballots, the fusion ballot steadily lost support.

New York, however, has maintained the fusion ballot status quo. Although it occasionally comes under attack as an unfair practice, others laud its ability to grant a greater voice to third parties. Nevertheless, as the 2016 election shows its boon to third parties seems more like a benefit to the Democratic and Republican parties.

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Figure 1

Figure 1 is a partial copy of a November 2016 New York absentee ballot. As you can see, three presidential candidates (Hillary Clinton, Donald Trump, and Gary Johnson) appear on the ballot more than once.

Fusion voting in a presidential election is more complicated than other races because of the Electoral College. When voting for a presidential candidate, a voter is actually voting for an elector to the Electoral College, not the candidate herself.

 

 

 

 

 

 

 

 

 

 

 

 

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Figure 2

Let’s look at Hillary Clinton (Figure 2). She appears as the candidate for the Democratic, Working Families, and Women’s Equality parties. Because these parties submitted identical lists of Electoral College delegates to the New York State Board of Elections, each of these candidate slots offer an opportunity to vote for the same elector for Clinton. Thus, a vote for Clinton under the Women’s Equality ticket is, in essence, the same as voting for her under the Democratic ticket – the vote will be aggregated towards the same elector count. The same is true for Donald Trump appearing as the Republican and Conservative parties’ nominee.

Gary Johnson, on the other hand, has a major problem.

New York’s definition of a political party is one that received at least 50,000 votes in the most recent gubernatorial election. Only political parties have automatic access to the ballot, meaning that, in essence, only the Democratic and Republican parties are automatically qualified to be on the ballot. Independent parties must submit petitions with 15,000 signatures in order to qualify for the presidential ballot.

Gary Johnson’s Libertarian Party obtained the necessary signatures to put Johnson on the presidential ballot and submitted the list of Electoral College delegates to the State Board. After this, however, the Independence Party also endorsed Johnson, but submitted a different list of Electoral College delegates than the Libertarian Party. Because of this, Johnson’s vote totals for the Libertarian and Independence parties will not be aggregated.

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Figure 3

Say, for example, Johnson won 30% of the vote under the Libertarian Party and 5% under the Independence Party, while Clinton won 34%, Trump won 29%, and Jill Stein won 2%. Johnson would have the majority of the votes at 35%, but Clinton would have the most electors and would win New York.

As unlikely as the scenario seems (Clinton has a >99% chance of winning New York at the time of publication), it is important for New Yorkers to take a hard look at the merits of fusion voting. Although fusion voting supposedly helps third parties, it seems to only help those third parties who support major party candidates – meaning it ultimately helps major parties. Maybe it is time to recognize the real value of fusion voting in New York: the ability of placing ideas on the ballot.

 

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5 Comments

  1. Nancy Long-Broughton

    October 31, 2016 at 9:29 am

    Well written I actually understood it easily. Thanks Caiti

  2. Although still highly unlikely, it’s more likely that the fusion ticket of Donald Trump wins California than Gary Johnson wins New York. In that case, Trump was co-endorsed by the American Independent Party. In that instance, the California Republican Party and AIP agreed on a common electoral slate – 50 of the electors would be Republican and 5 would be AIP.

    What should’ve occurred here was the New York Independence Party and New York Libertarian Party collaborated on having a common electoral list.

  3. “New York’s definition of a political party is one that received at least 50,000 votes in the most recent gubernatorial election. Only political parties have automatic access to the ballot, meaning that, in essence, only the Democratic and Republican parties are automatically qualified to be on the ballot.”

    This is another flaw in the article. All you have to do is go to Wikipedia and look up the results of the 2014 New York gubernatorial election.

    https://en.wikipedia.org/wiki/New_York_gubernatorial_election,_2014#Results_2

    The Green Party in the 2014 election ran their own candidate and he got 184,419 votes, qualifying the Green Party to be on the ballot. The Conservative, Working Families, Independence, Women’s Equality, and Stop Common Core (renamed Reform Party and recently taken over by another faction per Richard Winger’s Ballot Access News) also got over the 50,000 vote marker.

    The Working Families Party were going to nominate Zephyr Teachout at the time, but were threatened by pro-Cuomo labor factions in the party and co-endorsed Cuomo.

    The Libertarian Party in 2014 also ran their own candidate, but he received less than 17,000 votes and therefore they did not qualify to be on the ballot.

  4. Thank you for the feedback! That is, in essence, what the example with Ms. Clinton illuminates. The Working Families Party put in the same list of electors as the Democratic Party, meaning her vote totals will be aggregated. The Libertarian and Independence parties, however, did not.

  5. Thank you for the feedback! The author’s claim, however, is substantiated. If you take a look at the election totals provided by the NY State Board of Elections for elections from 1994-2016, you can see that the Democratic and Republican parties are consistently reaching the 50,000 vote threshold, which is what is necessary for automatic ballot access. Here is the link: http://www.elections.ny.gov/2010ElectionResults.html

    Hopefully that helps to clarify the author’s point!

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