Freepik
A Republican vote, Democrat vote, and United Wisconsin vote being cast simultaneously.
Dale Schultz and Dave Mahoney have a good idea. Like a lot of good ideas it faces a hard road ahead.
Schultz, the former Republican state senator, and Mahoney, the former Democratic Dane County sheriff, have formed a third party they call United Wisconsin.
But it’s unlike other third parties, which come and go, and which usually act only as spoilers — if they can even manage that much. Instead, what they intend is a party that would not nominate its own candidates. Rather, the UW (I know, confusing — maybe they could change their name to the Political Parties of Wisconsin) would choose one of the two main party candidates.
So, in other words, a single candidate could appear on the ballot under two parties. For example, Democrat Joe Smith, running for governor, might also be listed on the United Wisconsin ballot. The theory is that independent voters, fed up with both Republicans and Democrats, could vote for the UW candidate, confident in the fact that this third party label is a seal of moderation. That would be guaranteed because the UW would interview the major party candidates and, if one of them meets their centrist criteria, they’d endorse that candidate. The basic idea is to use this system to drive both parties to the center.
They’re onto something. A recent CNN poll found that only 29% of voters had a favorable opinion of the Democrats — an historic low — while only 36% thought well of the Republicans.
What would make all this work is something called fusion voting. Under fusion all the votes for one candidate — regardless of which party label they ran under — would be added together, or fused. So if Joe Smith got 47% as a Democrat and 4% as a United Wisconsin candidate, Smith would win with 51% of the vote.
And, while United Wisconsin is a centrist movement, fusion could work in other directions. “Fusion is a way to vote your values without blowing up the whole system,” explains UW Madison professor Joel Rogers, who is an expert on the subject.
But here’s the problem. It’s not legal in Wisconsin. In fact, only eight states allow fusion voting. Moreover, there’s zero chance that the Legislature — if controlled by either party — will change the law to allow it. That’s because it’s just not in the interests of either major party to cede some of their influence to a third party.
So, the only real chance United Wisconsin has is to get a court to rule that this ban on fusion voting is unconstitutional. That’s not likely to happen at the U.S. Supreme Court.
In 1996, SCOTUS ruled in Timmons v. Twin Cities Area New Party that anti-fusion laws were not an unconstitutional violation of the First Amendment and 14th Amendment. States were free to allow fusion, but they weren’t required to allow it.
That case was brought in part by Rogers, who founded the New Party. Of course, that was 30 years ago. So what are the chances that this court would overturn the Timmons ruling? Rogers tells me it doesn’t matter because the new strategy is to bring a case under the state of Wisconsin’s Constitution. That case was filed just last week in Dane County Circuit Court by the liberal law firm Law Forward and Glass Turek LLC. It will likely work its way up to the state Supreme Court at some point.
How that court would rule is anybody’s guess.
If that road ends up going nowhere I’ve got another idea: parties within parties. There’s nothing stopping moderate Democrats and Republicans, like Mahoney and Schultz, from starting centrist versions of their own parties.
So, for example, the Moderate Democrats could nominate their own candidates to run in Democratic primaries. The Mod Dems could pledge to support whichever Democrat wins — so they wouldn’t just be a third party spoiler — but the effect could be to move the party to the center. That’s because candidates would want the support of both the main Democratic Party and the Mod Dems to get the nomination. The same thing could happen on the Republican side.
Democratic activist David Hogg is talking about something like this, except that he wants to move the party even further left — toward even deeper unelectability, in my view. He also bases his idea on a nasty ageism as he wants to target older incumbents. Given that voters tend to be older themselves, this strikes me as a losing idea on more than one level. Still, I give Hogg credit for shaking up a complacent party establishment and earning their ire. Good for him.
What’s powerful about either Hogg’s movement or the Mod Dems idea is that it can’t be stopped. Most Democratic Party officials won’t like it because it would dilute their power and party regulars generally don’t like primaries anyway. And, of course, to the extent incumbents might be challenged and the party exists to serve them, they really won’t like it. But the Mod Dem party within a party doesn’t require the Legislature to change the law or a court to rule in its favor.
Schultz and Mahoney have a good idea. I hope they ultimately win in court. But even if they don’t, there’s an alternative that could get them most of the way there.
[Editor's note: This story has been corrected to note that the suit was brought by Glass Turek LLC as well as Law Forward.]
Dave Cieslewicz is a Madison- and Upper Peninsula-based writer who served as mayor of Madison from 2003 to 2011. You can read more of his work at Yellow Stripes & Dead Armadillos.
