Is Eight Enough? Or Two Too Many?

Thirty years ago there was a TV program called “Eight is Enough.”  It comes to mind because now that the gubernatorial candidates of the Stop Common Core party (Rob Astorino) and the Women’s Equality party (Andrew Cuomo) each exceeded 50,000 votes, they join the currently constituted parties on the ballot, giving New York a total of eight political parties.  One can say voters here have a rich variety of choices.  One can also say the ballot, already crowded, will be even more confusing. This is especially true because ours is one of only a handful of states that permits “fusion”—allowing parties to cross-endorse each other’s candidates. This can lead voters to wonder what a candidate or party actually stands for. (The Brennan Center of Justice has a good primer on the topic.)

The election of 2014 certainly proves this point. Gov. Cuomo appeared on four lines—Democratic, Working Families, Independence and Women’s Equality—prompting the question whether he stood for the principles of each of these parties. And if the answer is “yes,” then one may ask what the Independence Party has in common with the Democratic or Working Families parties.  Moving down the ballot, voters found candidates who were nominated by both the Democratic and Conservative parties; the Working Families and Conservative parties; and the Republican and Working Families parties. One could not be faulted for being puzzled by these somewhat odd combinations. The best explanation is that although each political party has its own set of principles, each party, and the candidates they support, is engaged in realpolitick as well.

Every now and again, there is a call to repeal New York’s fusion law. In fact, most states actually prohibit a candidate from appearing on more than his or her own party’s line, and the United States Supreme Court has allowed such bans. Our fusion law, however, was approved by the New York Court of Appeals in 1910, which ruled that a legislative effort to end the practice was “plainly invalid and unconstitutional.” As a result, candidates were freely able to petition to run on more than one party’s line.

In the mid-1940s, though, a concern arose that activists from one party were attempting to wrest control of other parties. This led to the Wilson-Pakula law, still in effect, which permits non-enrollees to run only if a political party approves. This restrictive use of fusion seemed to be working fine until last year, when Democratic state Sen. Malcolm Smith was accused of attempting to bribe the leadership of the Republican Party to authorize him to run on its line for mayor. In response, Gov. Cuomo proposed repealing the Wilson-Pakula law, which would have permitted a candidate to run on another party’s line without permission of its leadership. This “reform” would have brought New York back to pre-1947 fusion voting, and might have led to the kind of party-raiding the Wilson-Pakula law sought to eliminate. The governor’s proposal, however, seemed to gain no traction.

So now we have eight parties that can cross-endorse candidates for public office. But Stop Common Core and Women’s Equality are somewhat different than previous new parties. In contrast to the Liberal, Conservative and Working Families parties, which grew organically from existing major parties and were initiated by activists with an articulated political philosophy, the two new parties appear to have been created as add-on ballot lines for the purpose of the 2014 election. It remains to be seen whether either will attract sufficient adherents who are prepared to abandon their current enrollments and build a mature political party infrastructure throughout the state. 

Only time will tell whether the two new parties will go the distance. 

Jerry Goldfeder practices election and campaign finance law at Stroock & Stroock & Lavan LLP in New York City, and teaches Election Law at Fordham Law School and University of Pennsylvania Law School.  He is the author of Goldfeder’s Modern Election Law, and is a columnist for the New York Law Journal ("Government and Election Law") and (“Law and Politics”).

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