"If the major parties are pressed to recognize through fusion that a significant bloc of voters prefer something other than what the major party candidates are offering, that would create pressure for the major parties to be more responsive to the concerns of more voters."

"Fusion is not a magic bullet, but it offers the promise of helping to bridge some of the extreme divides of our politics.If there is some common ground between independent, conservative and liberal voters, fusion would help unearth that common ground in the place it matters most, the voting booth..

I’ve published an essay in the NJ Law Journal arguing that the Court should strike down the state’s ban on fusion voting.If a significant center of the electorate exists that feels unrepresented with the major parties represent, fusion is a way those voters would be able to express their preferences

That is a significant change in doctrine. And in my view, that would be a good development.

That will bring about a symmetry. Rules that burden voters could already be challenged; now rules that expand voting will also be capable of advance challenge.
That will mean the general legality under federal law of voting rules can be resolved in advance.

such as having to show a need to expend resources to comply with the rule, or that there's a risk the rule would disadvantage you.
But the practical effect is going to be that a candidate (and party) will be able to bring federal challenges in advance of an election to rules that expand voting.

The law sometimes embarrasses itself, but a rule that parties can challenge a rule in a candidate's race but the candidate himself cannot challenge that rule, would be bizarre.
The Court might tie itself in knots linking party/candidate standing to some formalistic "injury"...

What injury does a political party suffer in advance from rules that do not burden voters' rights? Any doctrine that recognizes standing for parties here has to also recognize standing for candidates.

The Court has never held that political parties, either, can challenge in advance of an election rules that expand voting opportunities.If you say, as Marty does, the case is no big deal because parties can just sue, you're assuming an answer in advance to the question that's actually at issue....

These laws do not meet the "severe burden" test of Anderson-Burdick. For standing, a voter would have to argue a new form of vote dilution injury, that my vote as an eligible voter is diluted by counting ballots not legally cast. The Court has not yet accepted that form of voter injury.

But the issue in cases of the type Bost represents is whether anyone can prospectively challenge laws that EXPAND the rights voters have, if they believe that expansion of voting opportunities is illegal. What injury does a voter, for example, have? ...

I did not listen to the argument. But if candidates do not have standing, on what basis would parties have standing?

"But just as important, the precise basis on which the court concludes he has standing will have significant implications for who can bring election law challenges, and when, for the future of election law litigation in the federal courts."

For those and other reasons, my essay concluded:
"Given the strong institutional imperatives courts face in the election context to settle the rules clearly in advance of the election, the court is likely to find Bost has standing to bring his prospective challenge. ...

My view is that there are strong systemic interests in having election rules clarified in advance of the election, rather in the midst of a dispute after ballots have been cast. The courts also have an institutional interest in adjudicating these issues in advance.