A noted civil rights lawyer and law professor makes the constitutional case for reviving fusion voting (and fusion parties) — and explains why he thinks the timing is right.

On the latest episode of This Old Democracy, Micah Sifry talks with Samuel Bagenstos, the Frank G. Millard Professor of Law at the University of Michigan and a professor of public policy at the Ford School. The principal topic: a lawsuit he’s helped bring to get us out of the two-party “doom loop.”

Bagenstos has spent his career moving between scholarship, litigation, and government service. He served as Deputy Assistant Attorney General for Civil Rights in the Obama Justice Department, then as general counsel first at the Office of Management and Budget and later at the Department of Health and Human Services under Biden.

Now he’s back in court. He’s representing the Michigan Common Sense Party and the Michigan Libertarian Party in a suit filed in May challenging the state’s 131-year-old ban on fusion voting.

Context is everything, in life and litigation both, and Bagenstos sets the stage well. In post-Civil War Michigan the GOP was generally dominant, but a coalition of Democrats, Populists, Greenbackers and laborites used fusion to break the GOP’s grip on state government in the 1880s and 90s. This coalition didn’t just win elections for the sake of holding office — they had an agenda and used their time in power to push through labor reforms, consumer protections, and women’s suffrage (along with, he adds dryly, Prohibition–yes, we made that pun up on our own).

Nobody rules forever, and the Republicans clawed their way back to power. By 1895, the GOP was in complete control of state government. They understood that their opponents were a varied lot – by occupation, religion, region, race, ethnicity – and they also understood that fusion was the very rule that allowed different political factions to unite across those differences. The GOP decided to prevent such coalitions from forming rather than have to defeat them once formed. Fusion voting was made illegal, and fusion parties vanished. Change the rules, change the outcome.

For more than 130 years, the fusion ban stood unchallenged. But Bagenstos argues the ban on that kind of coalition-building is newly and perhaps even deeply vulnerable because of how Michigan voters have amended their own state constitution in recent years. A new context has emerged.

In 2018, voters approved creating an independent redistricting commission and added voting protections. In 2022, the same coalition went further, adding a sweeping guarantee of “the fundamental right to vote” that bars anything that denies, abridges, or unreasonably burdens that right.

Layer on top of that a “Purity of Elections” clause in the state constitution that the Michigan Supreme Court has long read as barring the legislature from favoring major parties over minor ones. Bagenstos thinks fusion’s opponents are running out of room.

Ask Bagenstos why this matters beyond party-building, and he discusses the voter’s dilemma.

[W]ithout fusion voting in a first-past-the-post system, what we have for the voter is effectively three really bad choices, right? The voter who doesn’t see themselves represented in either political party either swallows their lack of representation and votes for the political party that’s closest to them that doesn’t really represent them, or the voter votes for a third party, which is at best ineffective in our first-past-the-post system, and at worst likely to lead to actually the worst outcome from the voter’s perspective because it will be a spoiler for the major party candidate who is closest to the voter; or the voter just says, look, I’m not represented here, I don’t have good choices, I’m not gonna vote.

That framing is part of why Bagenstos’s client list is such a cross-cutting assortment: the Common Sense Party (mostly ex-Republicans repelled by Trumpism), the Libertarian Party, a Democratic candidate who’d also like a second ballot line, and individual voters from across the spectrum. As he puts it, “I think that we see… this is not about a particular ideology. This is about opening up our democracy.”

The fusion ban’s defenders will likely lean on the old argument that banning electoral coalitions between major and minor parties protects political stability — the same reasoning the U.S. Supreme Court used in 1997’s Timmons v. Twin Cities Area New Party to bless Minnesota’s fusion ban. Bagenstos doesn’t think that argument has aged well:

I don’t know how these justices — who are very smart people — or really anyone else looking around could look at the world we’re living in and say the two-party system has really worked well to stabilize our democracy. The evidence that it’s not is just all around us.

He points to an expert report from political scientist Lee Drutman that has been submitted as part of the plaintiff’s case. Drutman argues that the Rehnquist Court got it exactly backwards: more viable parties, not fewer, is what would actually get us out of the zero-sum “doom loop” that has so degraded politics and governance over the last thirty-plus years. The case now heads to the Michigan Court of Claims this fall, with appeals likely to follow that will ultimately produce a state Supreme Court ruling.

Bagenstos doesn’t expect relief in time for the 2026 election, but he’s hopeful it could arrive before 2028. If Michigan’s courts agree, the ruling could become a template for other states that, like Michigan, have recently strengthened their right-to-vote guarantees in ways the old fusion bans never had to answer to.

Asked how he keeps going, given how much of his own civil rights work is being undone in Washington right now, Bagenstos didn’t reach for a pep talk. He pointed to the long view — the lawyers who kept fighting through Jim Crow, family members who lived through the McCarthy era and kept going anyway: “We’ve been here before, and we wouldn’t have made the gains that we’d had if everybody had given up.”

And then the more ordinary discipline: reading a novel every night, walking outside, not letting the work swallow the whole of a life.

Share this episode with someone who still thinks the two-party system is just how democracy works. It isn’t. It’s a design choice — one Bagenstos is now in court arguing Michigan got wrong.