As America grapples with rising political extremism and voter disillusionment, a quiet legal revolution is brewing — and Kansas is at the center of it. On Oct. 17, the University of Kansas hosted a symposium on how state constitutions and courts can uphold democracy amid federal uncertainty. One topic on the docket: fusion, a practice that enables minor parties to engage in coalition politics by cross-nominating major party candidates who come closest to their values and goals. 

Fusion voting is straightforward: it allows two (or more) parties to “fuse” their support in favor of a candidate. That candidate then appears on the ballot under each party’s line (if they are nominated by two parties, their name would appear on the ballot twice, but voters can only vote for them once). All votes for a candidate are added together to determine the final outcome. 

A once-common practice that could help restore political balance and choice in Kansas and around the country, fusion voting is banned in most states today.

The United Kansas Party, however, is currently suing to change that. Officially recognized as a minor political party by the state in May 2024, United Kansas argues that laws which bar fusion violate the state Constitution’s promises of freedom of association, among other rights. Similar lawsuits are pending in the courts of New Jersey and Wisconsin. Numerous legal commentators, including me, agree.

A bipartisan ABA Task Force on American Democracy recently endorsed the relegalization of fusion voting as a political reform with significant potential to empower the center of the electorate that currently feels unrepresented with the choices the major parties represent. In Kansas, the Secretary of State’s May 2024 voter file indicated that nearly 30% of the electorate prefer not to affiliate with the major parties. Undoing these bans on fusion voting, it argued, could help save us from a red-blue explosion. 

With fusion voting, voters can then decide whether to support viable candidates as a Republican or as, for example, a member of the United Kansas Party–a party founded to vindicate the interests of those who are fed up with the extremes of both parties. Their official slogan is, “We’re not red. We’re not blue. We’re something new.” Even if a minor party like United Kansas only got a small percentage of the vote, its existence as a new independent force in the middle of the political spectrum would incentivize candidates of both major parties to court its support. That would shift the direction of American politics away from where the extremes are currently taking us. 

Legalizing fusion provides an off-ramp from disaster. Moreover, it has a proven track record as an effective strategy by which minor parties can influence politics because it solves the wasted vote and spoiler dilemmas that otherwise plague third parties. In our era of hyperpolarization, it would also enable voters to express their desire for a less polarized politics. 

Indeed, the practice once played a robust role in American political life, especially here in Kansas. In the 1890s, the People’s Party (also known as the Populist Party) played a huge role in state politics effectively becoming the state’s second major party. According to political scientist Joel Rogers, “In the 1892 and 1896 elections, the fused Populist and Democratic Parties captured Kansas’s entire executive branch, won the state’s electoral votes in the presidential election, elected a majority to the state supreme court, and sent multiple representatives to Congress, including a U.S. Senator.” But all that changed in 1901, when Republicans retook control of the state house and banned cross-nomination, leading them to dominate state politics for more than a century. In other states, it was the Democratic Party that banned fusion to eliminate their electoral competition.

Kansas’ experience is not unique. Prior to the introduction of state-mandated ballots, minor parties formed and exercised political power across the country, despite facing many of the same structural barriers commonly cited today in support of the inevitability of a two-party system. And while they sometimes ran their own candidates, more often they practiced coalition politics by cross-nominating major party candidates who came closest to their values and goals. 

The dirty little secret of American politics is that a majority of voters wish they had more meaningful choices on election day. But thanks to laws imposed by the two major parties more than a century ago, most jurisdictions deprive voters of meaningful mechanisms to register this sentiment or opportunities to form the new parties they crave. But these laws can and should be struck down by the state courts on state constitutional grounds, as was discussed at the Kansas Law Review Symposium.

Fusion voting offers a path forward — one that honors freedom of association and gives voters the broader choices they want. Kansas courts have a chance to lead the way by recognizing the substantial burdens these laws place on the core right of association.

— Tabatha Abu El-Haj is a law professor at the Drexel University Thomas R. Kline School of Law.