Two lawsuits filed by minor political parties, aimed at cementing the constitutionality of "fusion" voting—where candidates may run on and collect votes from multiple party lines—will push forward, officials said, despite a decision from a state-sanctioned panel that effectively leaves New York's practice—which had been threatened—in place. 

The panel's final decision was outlined late Sunday evening in a quietly-published report, which will be equivalent to a new law, unless the Legislature acts in the coming weeks to repeal it. 

Representatives from the two parties, the Working Families Party and the Conservative Party, said Monday that the panel's decision would not disrupt their legal strategy. 

Richard Brodsky, an attorney representing the Working Families Party who also served in the state Assembly, said they plan to continue their lawsuit as planned, regardless of the panel's decision not to address fusion voting directly. 

"The lawsuit stands with all issues on it," Brodsky said. "The fact that we brought the lawsuit indicating that fusion was constitutionally protected is an indication of how weak and irrational the whole process was."

When asked during a radio interview Monday morning whether the Conservative Party's lawsuit would also move forward, Gerard Kassar, the party's chair, said he hadn't decided otherwise.

"As far as I know," Kassar said. "I haven't issued any other instructions."

Each party brought their own lawsuit against the panel, called the Public Finance Reform Commission, after at least one of its members said publicly that it would consider a ban on fusion voting, which has been used in New York for more than a century.

An end to fusion voting was widely seen as an effort to impair the political activities of minor parties in New York state, like the Working Families Party, which largely continue to exist on the ballot because of their ability to endorse major party candidates. 

An outright ban on fusion voting was ultimately taken off the table by the commission, but its members approved another measure to the detriment of minor parties.

To qualify to run candidates on the ballot every two years, each party will now have to secure, during the previous election cycle, either 130,000 votes, or at least 2% of the votes cast for the highest office on the ballot. Some years that's president, others it's governor.

Parties currently only have to earn 50,000 votes every two years to qualify for ballot access during the next election cycle. 

During the last election cycle, when Gov. Andrew Cuomo was up for reelection, the Conservative Party was the only minor party to collect more than 130,000 votes. The Working Families Party managed about 114,000. 

While the Conservative Party would likely be safe from losing its ballot access, Kassar said Monday they were also opposed to the higher threshold because of how it could potentially stifle the political activity of minor parties.

"The third parties, whether they're to the left or the right, give people an additional opportunity to express their philosophical view," Kassar said.

Under the new scheme, if the same vote totals persist next year, the Working Families Party would be kicked off the ballot for the 2022 election cycle.

Brodsky said that, while the commission didn't end fusion voting outright, its intention with the new ballot threshold was to make it harder for minor parties, like the one he represents, to qualify, and consequently use their line to support major party candidates.

"There are two ways to stop a marriage," Brodsky said. "One is that you can bar the people from getting married. The other is that you can shoot the groom."

"They're reading out the people who can engage in fusion activities as opposed to saying you can't fuse," he later said.

Brodsky said their lawsuit will continue as-is, including his argument that fusion voting is a constitutional right of residents of New York, as established through case law from the state's highest court. But that wasn't the only cause of action in the lawsuit.

The Working Families Party is also challenging the enactment of the commission itself, saying the Legislature unlawfully ceded its lawmaking power to a panel with no oversight. 

Lawmakers created the commission earlier this year after they couldn't reach an agreement on legislation that would have created a public campaign financing system in New York. The panel was formed soon after and was largely left to its own devices in the months that followed.

"There's nobody to hold them accountable, there's no way to know how decisions were made, there was clearly trading and threatening going on," Brodsky said. "So, we're going forward with the lawsuit and have great confidence we're going to win."

Brodsky said he still expects the constitutionality of fusion voting to be an issue in the case, particularly in the coming weeks, while attorneys for the state are scheduled to file a response to his arguments on behalf of the commission.

The lawsuit is currently at the stage where Brodsky, on behalf of the Working Families Party, has moved the court to make a decision in the lawsuit. Attorneys for the state had initially tried to toss the litigation, but the court, instead, asked them to respond to Brodsky's motion.

Because Brodsky dedicated a significant portion of his motion to the constitutionality of fusion voting, he expects attorneys for the state to respond in turn.

"It would surprise me if it's not discussed," he said. "Keep in mind this is a declaratory judgment. The court would have enormous scope to make a declaration of the law on any related subject."

Kassar, during the radio interview, made the same prediction. His lawsuit, from the Conservative Party, is at the same stage as that of the Working Families Party and was also allowed to move forward on their motion to resolve it, rather than the state's effort to dismiss it.

"The paperwork is submitted," Kassar said. "You can't stop the judge from ruling on that."

The Conservative Party is represented by William F. Savino, a partner at Woods Oviatt Gilman in Buffalo.

Both lawsuits have relied on a series of decisions from the New York Court of Appeals, the state's highest court, to further their argument in support of fusion voting. They've argued that the high court has explicitly upheld the constitutionality of the practice.

In one of those cases, Matter of Callahan in 1910, the Court of Appeals appeared to weigh in on the Legislature's power over fusing voting versus the state constitution, for example.

"If it cannot enact arbitrary exclusions from office, equally it cannot enact arbitrary exclusions from candidacy for office," the decision said. "What exclusion could be more arbitrary than that one party or organization should not be permitted to nominate the candidate of another."

Arguments in both lawsuits are scheduled for the afternoon of Dec. 12 in Niagara County Supreme Court.

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