Two opposing political parties, the Conservative and Working Families parties, are joining forces in a pair of pre-emptive lawsuits seeking to bar a newly-formed commission from ending fusion voting.
Both the right-leaning Conservative Party and the leftist Working Families Party regularly cross-endorse candidates who already have the backing of one of the major political parties.
New York is one of only a handful of states that allow candidates to receive the ballot lines of multiple parties and claim the votes from all of them, a practice commonly known as fusion voting.
A recent push to end the practice, coupled with a progressive effort to publicly fund political campaigns, caused the state Legislature to establish the Public Campaign Financing and Election Commission in April. The nine-member commission is tasked with making determinations on a variety of election law matters, including "multiple party candidate nominations."
Moreover, unless the Legislature votes within 20 days to amend or repeal the commission's determinations, those determinations become law.
In separate but parallel lawsuits filed Monday in State Supreme Court in Niagara County, the two minor parties argue the commission is unconstitutional, as the state constitution gives only the Legislature and governor the power to enact laws. The lawsuits also argue fusion voting is enshrined in the state constitution, and cite three state Court of Appeals rulings in favor of the practice.
“Fusion voting is a constitutional right in NY. And the Appeals Court has ruled that three times," said Richard Brodsky, an attorney and former New York State Assembly member (D-Westchester County) who is representing the plaintiffs in the Working Families suit. "Nobody — not the Legislature, not a commission — has the right to undo a constitutional right.”
The Working Families lawsuit names as plaintiffs two county residents registered with the party, five Assembly members, one state senator and the Working Families Party statewide leadership.
Defendants in the lawsuit include the commission and its nine appointees, the state Board of Elections and its commissioners, the state itself, Gov. Andrew Cuomo and the majority and minority leaders of both chambers of the Legislature.
A spokesman for Cuomo declined to comment, though he noted the governor has yet to take a position on fusion voting. A Board of Elections spokesman declined to comment.
A Working Families Party spokeswoman said the suit was filed in Niagara County because it mirrors the Conservative Party suit, which already had been filed by William Ross, the former county legislature chairman and a registered Conservative. Filing the lawsuit in the same court could allow attorneys to motion for merging the suits into a single case.
"I’m prepared to do whatever needs to be done," said Ross, who now chairs the county Conservative committee. "I will follow through because I believe in fusion voting. It’s the right thing to do.”
Joining Ross in the Conservative suit is Niagara County Clerk Joseph Jastrzemski (R), one registered Conservative voter in the county and both the county and state Conservative committees. The defendants are the same in both suits.
The minor parties are seeking orders to nullify any commission action that interferes with fusion voting, as well as an order declaring the commission itself unconstitutional.
While the commission has not yet taken action to ban fusion voting — or even indicated it intends to — the suits argue the commission's existence has created a "chilling effect" on the practice for the 2019, 2020 and 2021 election cycles.
"Candidates, political parties and all those participating in fusion voting have been hampered, faced difficulties and seen an erosion in political and material support due to the danger to fusion voting caused by the budget statute and (commission)," Brodsky wrote in the lawsuit.
Commission chair Jay Jacobs, who also chairs the state Democratic party, said the suit shows the minor parties acting "in their own self-interest."
"I certainly don’t fault them for doing that," Jacobs said. "The courts will determine whether they’re correct. I don’t believe so.”
Cuomo and the Legislature opted to create the commission in April amid progressive pressure to establish publicly-funded campaigns, intending to reduce the influence of big money in state politics.
Neither suit challenges the commission's charge to design a system for publicly financing elections. A Working Families Party spokeswoman said the committee backs those efforts. While many statewide Republicans oppose the increased spending required for such a system, Ross described himself as a "strong believer in ... clean public financing."
However, many Albany reform advocates are hopeful the commission ultimately will do away with fusion voting. Critics say the practice encourages major parties to appease minor parties, rewarding them with outsize influence and patronage jobs.
Fusion also allows candidates who lose in primary contests to remain on the general election ballot, such as when former Rep. Joseph Crowley, who famously lost in the 2018 Democratic primary against Rep. Alexandria Ocasio-Cortez, stayed in the race on the Reform and Women's Equality Party lines. Fusion voting opponents argue this leads to more election "spoilers."
Critics also say fusion voting confuses voters, as liberal candidates can get the backing of both the Democratic and Conservative parties, and vice versa.
Proponents say the system empowers ideas not endorsed by the major parties, and allows third-party candidates a real opportunity to win elections. The Libertarian and Green parties tend to field their own candidates rather than cross-endorse, but those candidates rarely win office.
Jastrzemski said he owes his political career to fusion voting. In 2005, Jastrzemski narrowly lost to Bruce Muck in the the Republican primary for Wilson town supervisor. But because state law allowed him to seek multiple nominations, Jastrzemski remained on the ballot as the Independence and Conservative nominee and won resoundingly in November.
"If it wasn’t for the minor party lines, I wouldn’t have won my first election," Jastrzemski said.
"I believe 100 percent we should have it," he added. "Parties should have an opportunity to ... choose a candidate that would best represent them and their voice in that party."
Like Cuomo, the commission has not yet publicly taken a position on fusion voting. Jacobs said the commission will hold hearings across the state to gather input, and said the group's main goal is to establish a system that empowers small donors.
"Our main charge is to develop, if we can, a public campaign finance system," Jacobs said. "There are the subsidiary issues related to its implementation and the proper running of elections."
Jacobs declined to say whether the commission would consider ending fusion voting if speakers at hearings and written comments overwhelmingly back an end to cross-endorsements.
“I’m going to do my job and look out for what’s in the best interests of the voters of the state," Jacobs said. "And I think all the members of the commission will do the same.”