In the summer of 1904, Associate Justice Calvin Luther Brown was about the last person Republican leaders would expect to encourage litigation by Democrats challenging an election law that was the bedrock of their dominance of state government. But that is exactly what happened in September 1904 when he accepted the nomination of the Democrats as their candidate for the Minnesota Supreme Court seven weeks after he had accepted the Republican nomination for that office. Standing in his way--a hurdle he was well aware of--was an anti-fusion law, first passed by the Minnesota legislature in 1901, and re-enacted in 1903:
"And in no case shall the candidate of any political party be entitled to be designated upon the official ballot as the candidate of more than one political party, and shall be designated upon the official party ballot in accordance with the certificate of nomination first filed with the proper officers."
On September 30, Frank A. Day, the Chairman of the Democratic State Central Committee, lodged a mandamus action in the Minnesota Supreme Court attacking the constitutionality of the anti-fusion law and for an order that the Secretary of State, a Republican, list Brown as the candidate of both parties on the official ballot. The case was expedited. Pursuant to an order of Chief Justice Charles M. Start, the Supreme Court heard oral arguments on October 5 (there was not time for the parties to file briefs) and two days later, issued a per curium order to the Secretary of State to redesign the official ballot to list Calvin Brown as the "Republican-Democrat" candidate. On December 30, 1904, at year's end, the Court issued opinions explaining the reasoning of this earlier order. To the surprise of many, it was divided.
This article tells the story of In re Day, 93 Minn. 178 (1904). It relies heavily on contemporary newspaper accounts of the controversy, and a much-cited history of anti-fusion laws enacted in the 1890s and early 1900s by Professor Peter H. Argersinger, published in 1980.
The decision of the United States Supreme Court upholding Minnesota's anti-fusion laws in Timmons v. Twin Cities Area New Party, 520 U. S. 351 (1997), completes this article.