By Richard Winger
Reprinted from Ballot Access News

On July 20, the U.S. Court of Appeals, 4th circuit, upheld a South Carolina law that limits the usefulness of fusion. South Carolina permits fusion (the practice of letting two parties jointly nominate the same candidate). However, South Carolina law also says that if a candidate tries for two nominations, and loses one nomination but gains another party’s nomination, the fact that the candidate lost the battle for one party’s nomination also cancels out the other nomination. The Court upheld that law. The decision, South Carolina Green Party v State Election Commission, 09-1915, is 14 pages.

The case had been filed by the South Carolina Green Party, which had nominated a candidate for the legislature early in 2008. When that candidate, Eugene Platt, then also tried to get the Democratic nomination, he lost the Democratic primary and then he couldn’t even run as the Green Party nominee in November. The Court said this was not a severe burden on the Green Party because the Green Party was free at that point to substitute some other candidate.

The opinion makes no reference to the recent events in the South Carolina U.S. Senate election, in which the leadership of the Democratic Party had supported a former state legislator, Vic Rawls, who had won the Working Families Party nomination, but then lost the Democratic primary in a surprise upset. If the Green Party had won this case, then the Democratic Party’s preferred candidate this year would have been able to appear on the November ballot as the Working Families Party nominee.

In South Carolina, any qualified party is free to nominate either by convention or by primary, but the practice is that the major parties always choose to nominate by primary, and the other parties always choose to nominate by convention. One might imagine that a minor party convention might consider nominating a particular major party person at its convention, but then reject that person and thereby cause that major party member to be ineligible for the major party nomination. This scenario never happens, because no candidate may be considered for a minor party nomination if that candidate doesn’t file a declaration of candidacy. So a major party member simply refrains from filing a declaration of candidacy in time to be considered at a minor party convention.

One of the leading ways that minor party members ever get elected to state legislatures is through fusion, in which a minor party member gets his or her own party’s nomination, and then is also able to win a major party nomination. Most of the Libertarians who have been elected to state legislatures in the party’s history have won this way. The opinion does not acknowledge this point.

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