The Big Lie Conspiracy

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The Declaration of Independence was based on a conspiracy theory. The theory was that the King of England and his high ministers had secretly agreed to deprive the American colonists of their rights as English citizens and to impose tyrannical rule. The Declaration recites a long list of facts offered as proof of the theory. In retrospect, it is unlikely that this theory was actually true, but events at the time took on a momentum that made further proof then beside the point.

This type of conspiracism, which tries to make sense of a disorderly world by asserting that powerful people are controlling events behind the scenes, can be quite useful in a democracy – provided that a serious attempt is made to develop the factual proof. But this useful type of conspiracism has been replaced today by an insidious type not concerned at all with facts. Instead of factual validation it seeks only social validation, often through the number of people who follow or “like” a Facebook post or retweet some outrageous allegation. Repetition and affirmation are the currency. This social validation makes the conspiracy allegations “true enough” without more.

In their 2019 book A Lot of People Are Saying, Russel Muirhead and Nancy Rosenblum call this the “new conspiracism.” They argue that while people who engage in this new conspiracism allege plots against the constitutional order and national values, they do not offer solutions or prescribe practices or institutions that should replace the malignant ones. Their intent is simply to delegitimize the current order. Delegitimization is the cleaving of the public from the sense that government has rightful authority. It undermines leaders of government and institutions and seeks to deprive those institutions of any claim to our respect or consent.

Take the assertion made by Donald Trump before the 2016 election that the election would be “rigged.” He did not bother to explain how it would be rigged or by whom.  He didn’t urge the adoption of a new system for fair elections. He simply characterized the whole presidential election process as corrupt, knowing that if that assertion couldn’t be proved entirely untrue, then it was true enough for people predisposed to believe him. And he made it true enough by constantly repeating it. If his intent had been to prepare his followers for an election loss, then Trump would have stopped claiming the election system was rigged after he won. But instead he continued making this claim.

In this way, Trump sought to use conspiracism to undermine a central democratic institution.  Many historians of authoritarianism and the decline of democracy have cited undermining public faith in elections as a key strategy of would-be dictators. Now, of course, the 2016 rigged election claim has made way for the Big Lie – that Joe Biden was not legitimately elected President in 2020 because the election was stolen from Trump. Those responsible for this heist are never identified.

The Big Lie fits the new conspiracism construct in two important ways. First, it is not concerned with facts and its continued vitality doesn’t depend on facts. Indeed, all the facts that have been developed about the 2020 election show that it was one of the cleanest elections in modern history. Some 19 legal challenges were made to election results in various states. In order to survive, lawsuits require supporting facts but because the Big Lie has no supporting facts – only hyperbolic rhetoric – all 19 of these claims were dismissed.

The absence of supporting facts has not prevented a substantial slice of the public from accepting the truth of the Big Lie. On May 18, 2021 the New York Times reported on two opinion polls conducted by reputable firms. One poll in Arizona concluded that 78 percent of Arizona Republicans believe the Big Lie. A Monmouth University poll found that almost two-thirds of Republicans nationwide do as well. This may stem from the fact that we have sorted ourselves into like-minded communities. Republicans who believe the election was stolen from Trump might do so because they don’t know anyone who voted for Biden.

The Big Lie also fits the new conspiracism construct because it delegitimizes elections and related constitutional institutions. On January 6, 2021, our Capitol building was stormed by a violent mob for the sole purpose of interrupting the counting of Electoral College votes, the last step in confirming Biden’s election victory.  This rabble, fired up by the Big Lie, had utterly lost faith that the national election had been fair.

One is tempted to include the new state laws in Georgia and Texas designed to restrict early voting and absentee ballots as among the products of the Big Lie conspiracy. But I think this would be a mistake. These restrictions on access to voting were part of the Republican playbook before Trump and the Big Lie came along. In truth, these restrictive new voter laws have not been proposed as a remedy for any deep state “conspiracy” responsible for stealing the election from Trump.

Republican leaders are hoping that making it harder to vote in communities of color will make it more likely their party will prevail in elections. While the ultraconservative demographic reliably turns out to vote, this older, white voting group is an increasingly smaller slice of the voting public. Found mainly in rural areas, that demographic is falling behind a more liberal demographic in the cities. The handwriting is on the wall and some other Republican strategy besides weak attempts at voter suppression must be devised.

Restricting access to voting is just a tactic that will not yield big results.  What is the Republican grand strategy? Only a dramatic change in the way the public thinks about – or trusts – the electoral process can prevent the marginalization of the current Republican Party. If voters mistrust the electoral system, the effectiveness of the Democratic Party in the cities and among the educated might be derailed. Perhaps that dramatic change is what is the Big Lie really seeks to achieve — if we can’t beat them at the ballot box, let’s degrade the whole system. How’s that for a conspiracy theory?

The Electoral College: How it Works – and Doesn’t Work.

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I apologize from the start. There is no way to make a discussion of the Electoral College short and snappy. The only way to do this topic justice is to cover it top to bottom. So that is what I have tried to do. Anyone hoping for a short read should quit now while they are ahead.

Let’s start with a simple proposition with which most everyone these days would agree – the President of the United States should be elected by a majority of voters. Over this nation’s more than 240-year history, our understanding of democracy has come to mean one person one vote, with each of those votes being equally valuable. Nowhere should that be more important than in the election of the President. But our Founders had a different notion of how the election of the President should work.

  1. Adoption of the Electoral College. 

During the constitutional convention in 1787, some delegates were in favor of direct election of the President. But the more influential of them, including James Madison, were not. There were several reasons for this. Some delegates felt that the country was too large for voters in one region to know the worth of candidates from another region. The party system, which allows factions to organize candidates into slates recognizable in all regions, did not yet exist.

But the most persuasive reasons were based in power politics. Direct election of the President would permit areas with the majority of voters to dominate this important choice. The delegates had already performed a complicated balancing act with respect to the legislative branch to ensure that small states did not get steamrolled by large ones – the Senate would consist of two Senators from each state regardless of size. A method was needed to permit majority selection of the President that still respected the new federal system. Just how to do this was a difficult decision that occupied most of the summer of 1787.

The Electoral College was a last-minute compromise that was no one’s first choice. Madison said that because the final adoption of it took place in the latter stage of the convention “it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies.” We can all recognize this – they wanted to get out of town.

An uglier truth about this process is that slavery played a large part in the reluctance of southern states to support direct election of the President. The Virginia delegates feared that the North had a greater number of voters because slaves in the South obviously could not vote. Representation in the House of Representatives had presented a similar issue. The pernicious compromise reached was that when allocating seats in the House, which is based on population, slaves would count as 3/5 of a person. Wanting to have its cake and eat it too, the South ensured that this same fiction was utilized in the Electoral College mechanism.

  1. How the Electoral College Originally Worked.

The Electoral College provisions are found in Article II, §§ 2-4.  Sections 2 and 4 are in their original form.  Section 3 was amended by the Twelfth Amendment in 1804.

In essence, when voters cast their ballots for President they are actually voting for a slate of electors who will cast votes for President. A state has the same number of electors as it has Representatives and Senators. In this way, the fiction that slaves were 3/5 of a person when allocating Representatives sneaked into the voting procedure for President.

Each state decides how its electors are chosen – over time this has evolved from appointment by legislatures, to direct election of electors, to the system we have now where political parties propose a slate of electors pledged to that party’s candidate. The winning candidate’s electors are then “chosen” by the state. The names of electors don’t appear on the ballot at all. Nearly every state, including West Virginia, operates this way.

Originally, each elector voted for two candidates, with each vote having equal weight. The candidate with the most votes, so long as it was also a majority of all electoral votes, was the President and the candidate with the next highest number was the Vice President. This worked fine while there was general consensus on who should be President. It blew up in 1800 when the race between John Adams and Thomas Jefferson was hotly contested.

In 1800 Jefferson, a Republican, received 73 electoral votes (a majority of all votes) and Adams, a Federalist, received 65. But Jefferson’s electors around the country also cast their second 73 votes for Jefferson’s running mate Aaron Burr. Basically, someone forgot to ensure that Burr received one fewer vote than Jefferson. The Constitution required that this tie be sent to the House of Representatives for resolution. The procedure, which still exists, gives each state one single vote. Jefferson, Burr, and Adams were all possible choices. To make a long story short, Alexander Hamilton — a Federalist who loathed Burr — interceded on Jefferson’s behalf. But the system clearly needed fixing.

  1. The Twelfth Amendment.

The Twelfth Amendment, ratified in 1804, created what is called by scholars the “Jeffersonian Electoral College.” It dispensed with electors casting two votes for President and replaced that with electors casting one vote for President and one for Vice President on distinct ballots. In each state a list is to be kept of everyone receiving electoral votes for President and for Vice President. After the electoral votes are cast in each state, they are transmitted to the House of Representatives for counting. If there is a tie, or if no candidate for President receives a majority of electoral votes, then the House votes to resolve the situation, each state getting a single vote.

The essence of the Jeffersonian model is that no President should be elected without a majority of majorities.  That is, each state should choose electors in a way that reflects a majority of voters in that state. Then a majority of all electors so chosen would be required to elect the President. While there is no direct election of the President by the people, the theory is that this model both reflects a majoritarian choice and respects the importance of states in our federal system.

But this system too has broken down, primarily because now almost all states award their electoral votes to the candidate receiving the largest number of votes in the general election, whether or not that number is a majority. Where there are three or more candidates, this often amounts to a winner-take-all plurality system. While no President can be elected with less than a majority of electoral votes, any Electoral College majority can be made up of a number of states in which that candidate did not receive a majority of the popular vote.

The 2016 election is an example. Trump was unable to achieve the Jeffersonian majority of majorities because he received only 197 electoral votes (less than a 270-vote majority) from states in which he received a majority of the popular vote. Trump received all the electoral votes from seven states in which he won only a plurality of the popular vote. These states were North Carolina, Florida, Pennsylvania, Arizona, Michigan, Wisconsin and Utah.

This result was produced because third-party candidates Jill Stein and Gary Johnson also received a share of the popular vote in these seven states. It is not at all clear that Trump would have received a majority of the popular vote in these states if he and Clinton had been the only two candidates, or if there had been a runoff election between them. 

  1. A National Solution?

Of course, it is widely known that Trump also lost the overall popular vote in 2016 by some 3,000,000 votes. But this elides the fact that Clinton herself did not win a majority of the national popular vote – according to the Federal Election Commission she only won 48.18 percent of that vote. Under any democratic, majoritarian system she would not be entitled to the Presidency.

Much of the negative focus on the Electoral College comes from its failure to ensure that the winner of the popular vote is elected President, even though the Founders never intended for this to happen. One proposal for change is a Constitutional amendment eliminating the Electoral College in favor of the popular vote. This is a pipe dream in today’s political climate – no such amendment could command the necessary two-thirds majority in Congress and it is completely unrealistic to expect that the states which benefit from the current system would ratify such an amendment.

Another idea is the National Popular Vote Multistate Compact. This is a deal among participating states to award their electoral votes to the winner of the national popular vote, regardless of who wins the popular vote in that state. This doesn’t replace the Electoral College it simply produces a state’s electoral votes in a different manner than originally intended. The Compact wouldn’t be activated until enough states join to constitute the 270 electoral vote majority. At present ten states and the District of Columbia have joined representing 165 electoral votes.

This Compact idea has some problems. In the first place, who knows what the Supreme Court would do with a scheme that so obviously changes the connection between state voting and electoral votes without a constitutional amendment? Then as a practical matter, how would the Compact be enforceable against a state that backs out when its electoral votes would have to be cast for a candidate who didn’t win a majority of votes in that state? Finally, any interstate compact is required by Article I, § 10 to be approved by Congress. It is hard to conceive of this happening in the current political environment.

Here is the real problem with these proposed solutions. Because of the likelihood of third-party candidates in the future we may rarely have a majority winner of the national popular vote. Replacing the Electoral College by constitutional amendment or interstate compact with a strict popular vote system without a runoff feature will lead us repeatedly in the direction of national leadership that cannot command a majority of voters, a result no one wants.

  1. States to the Rescue? 

In his recent book Presidential Elections and Majority Rule, election law expert Edward Foley argues that individual states can solve the Electoral College problem by adopting legislation calling for a runoff election if no candidate achieves a majority on the first ballot. Those states would assure that the winner could not walk off with all the state’s electoral votes without being the state’s true majority choice. Although electors are required to be chosen on election day, Congress has provided this safety valve:

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. 3 USC §2.

An alternative to holding a runoff election after the nationwide general election day is to hold a first election around Labor Day and advance the two top candidates to the general election. This system is now in use in California and Washington.

But a two-election system, however constructed, would be costly for the state and the candidates.  Turnout would also suffer.  Foley suggests that a better solution might be the instant runoff election, a variant of ranked choice voting.

Voters would be asked to rank in order of preference all or a limited number of candidates for a particular office, say three. The candidate with the fewest first place votes is eliminated and then for all the voters who ranked the eliminated candidate first their votes would be recounted as if they voted for their second choice first. The process stops when a candidate accumulates a majority.

It would be possible for reforms like these to make a major difference nationally even if adopted only in a handful of states. For example, if Florida had used instant runoff voting in 2000, Ralph Nader would have been eliminated as a candidate before the final choice between George Bush and Al Gore. It would have meant that Gore, not Bush, would have been elected President.

  1. Conclusion. 

In Federalist No. 68, Alexander Hamilton said of the electoral college provision in the proposed 1787 Constitution that “if not perfect, it is at least excellent.”  How wrong this turned out to be. The Electoral College procedures have led us into contested elections and constitutional crises on several occasions, and often present us with non-majority Presidents.

While many people clamor for an amendment that would allow direct popular voting for President, this is probably an unrealistic hope. A constitutional amendment would have slim prospects. In any event, a national popular vote without a runoff feature would still be defective in those years when there were third party candidates because the candidate favored by most voters could still fail to attract a majority.

State legislative solutions to ensure that electors only go to the majority candidate are probably the better alternative because they can be quickly adopted and do not have to be universally adopted to render our quirky Electoral College truly democratic.

What Are We Going To Do About It?

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Even before the upcoming public impeachment hearings, we know the facts. Despite the blizzard of falsehoods issued by Presidential tweet to cover up the crime – it was a “perfect call”, there was no quid pro quo — all these have been discredited, one by one, then abandoned. Most recently, Ambassador Gordon Sondland changed his earlier testimony and now remembers that he did tell a Ukrainian diplomat that military aid would be withheld if there were no investigation of Hunter Biden’s company.

We know this: the President used our money, not his own, to squeeze a desperate country into providing political dirt on Joe Biden, Trump’s possible opponent in the 2020 election. This extortion was intended to benefit himself, not the country. The military assistance he withheld in this shakedown had been allocated by our representatives in Congress for the fight against Russia in eastern Ukraine. Trump’s July 25 call with Ukrainian President Zelensky was so improper – so illegal – that even White House staffers were shocked and attempted a cover up. So the question is not what happened. Rather, the question is what are we going to do about it?

Trump’s apologists are flailing. One assertion is that the whole impeachment inquiry is tainted because we do not know the identity of the original whistleblower, and that person might be hostile to Trump. But it is completely irrelevant how the inquiry began or the sentiments of the person who began it if the inquiry has produced the truth – and it has. All of the major allegations in the whistleblower complaint have been corroborated by actual witnesses to the call.

Another argument is the standard “whataboutism.” What about Joe Biden? Why didn’t “they” do something about Biden when he publicly threatened consequences for Ukraine if a corrupt prosecutor were not removed? But Trump is President and Biden never was. Biden never took action on any such threat, if one were actually made, while Trump did. Whataboutism is simply an attempt to deflect attention from the conduct of the President with an argumentative tactic used on elementary school playgrounds.

Trump’s enduring support among his partisan base suggests that many people may simply be rejecting the plain facts. After all, politics operates at an emotional level at least as much as an intellectual one. Some of Trump’s supporters will be loyal no matter what. He is the leader of their team, their tribe. This causes them to reject uncomfortable actual facts and accept “alternative” facts. It has been happening this way nearly every day during Trump’s Presidency.

There is another segment who are beginning finally to acknowledge the facts about what Trump did – they have little choice. But they argue that Trump has committed only a small “political” offense that should not result in his impeachment or removal from office. As a general matter, it is legitimate to debate the seriousness of an offense when determining the punishment. In this case, however, Trump’s offense is not trivial. It involves corruption and abuse of power.

But wait, there’s more. The nation has just come through a contentious debate over the Mueller Report on interference in the 2016 election. Part of what Mueller and his team investigated was whether the Trump campaign or individuals close to the President conspired with Russia to produce and use unfavorable information against his then opponent Hilary Clinton. On July 25 could there have been any doubt in Trump’s mind that soliciting a foreign government to interfere in our elections was a seriously wrong thing to do? Yet this is exactly what Trump did in his call with Ukrainian President Zelensky.

I have written earlier that a special circle in hell is reserved for Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who spin the facts to defend him or remain silent. It is said that these people fear the political consequences if they honestly evaluate the facts and conclude that Trump crossed the line. They are calculating what they stand to lose from holding Trump accountable even if they believe the Constitution and the good of the nation requires it. This is corrupt in itself.

Those of us in this part of West Virginia are relying on three elected officials to make the right call on this important matter: Congressman Alex Mooney and Senators Shelly Moore Capito and Joe Manchin. It will probably be the most important vote they take in their political lives.

Expecting Congressman Mooney to be a fair judge of the facts is a fool’s errand. He has taken every opportunity to cling to Trump’s coattails. He recently barged into a secure hearing room to disrupt a deposition that was not open to the public. Mooney’s claim that the procedures were unfair is absurd since they were basically the same procedures used in previous impeachment inquiries and Republican committee members were participating in the deposition. So now I expect Congressman Mooney to produce some other equally shallow reason to oppose holding Trump accountable. He’s just waiting for someone in the Republican leadership to tell him what that is.

Despite Congressman Mooney’s antics, it seems likely that the House will vote to impeach the President. That means a trial will be held in the Senate, where both of our Senators – one Republican and one Democrat – will have a vote.

Writing in the Washington Post, Jennifer Rubin said:

When a politician demands a private benefit (opposition research for a politician’s private use) in exchange for performing public act (releasing aid), that is called soliciting a bribe. That sort of mixing private gain with public conduct is precisely the definition of corruption. It is this sort of corrupt dealing that the impeachment clause in the Constitution contemplated when it refers to “treason, bribery or other high crimes and misdemeanors.”

If these facts are confirmed in a Senate trial, the only way our Senators could spare Trump from removal is if they conclude that the offense is not serious enough to justify removing the President. This is essentially what happened when President Clinton was impeached for illegal conduct that did not amount to a breach of national trust.

At this present moment we have a different situation. If Trump is not removed he will be emboldened to do more of the same to preserve his power and future Presidents may be as well. We know the facts. They are bad. What are we going to do about it?

Why We Should Not Wait Until The 2020 Election To Deal With Trump’s Misbehavior

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Democrats in the House of Representatives have decided they cannot ignore President Trump’s efforts to pressure Ukraine to produce dirt on Trump’s likely opponent in 2020. They have begun an impeachment inquiry, which may lead to the introduction and adoption of articles of impeachment in the House. Given the ample proof of Trump’s obstruction of justice in the Mueller report, resort to the impeachment remedy only now indicates how reluctant Democrats have been to take this step. There are huge political risks for the Democrats. Even now one can hear criticism of the move from those who ask why we just can’t wait until the 2020 election and let the voters decide whether Trump is guilty of a “high crime or misdemeanor?” But waiting until the 2020 election to deal with Trump’s conduct, up or down, would be a serious mistake. Here’s why.

Let’s first think about this idea in the abstract. Presidents are elected for four year terms. Much mischief can be done in that period. If a President commits an impeachable offense in the first six months of his tenure, the notion that the “trial” of this question should await the next election will enable him to remain in office for a lengthy period and commit offenses of the same or greater seriousness. And what of a President who commits an impeachable offense in the first six months of his second term?  The voters would get no chance to remove him by way of an election.

In the current situation, there are thirteen months until the 2020 election. If Congress does not immediately deal with the allegations, one way or the other, there will be no constitutional brake on Trump’s behavior. He will get the signal that Congress does not have the resolve to check his behavior, even though it breaks all norms. He will have clear sailing for more of his efforts to use foreign assistance to undermine his opponent in the critical run-up to the election.

The impeachment process requires the adoption of articles of impeachment in the House of Representatives, which is like an indictment. The impeachment question is then sent to the Senate. Article 1, Section 3 of the Constitution says “The Senate shall have the sole power to try all Impeachments.” What would deferring to the 2020 election be if not a decision to use another mechanism – the voters – to try the impeachment question?

But suppose we wait until the 2020 election and Trump is defeated. We would never know whether pressuring a foreign government to interfere in our elections is a “high crime or misdemeanor.” It would be impossible to know whether Trump’s election loss was because of the people’s judgment on the offense of for other reasons.  Likewise, if the President survived the election we would never know the people’s judgment solely on the offense.  It is certainly possible that other forces and factors could prevent voters from even considering the offense. Take, for example, what would happen if we suffer another terrorist attack between now and November 2020. The American people usually rally around the President as commander-in-chief in those circumstances.

The Founders recognized the danger of submitting the question of impeachment to the public. In The Federalist No. 65, Hamilton said that impeachment questions

will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Here Hamilton was arguing that the innocence or guilt of a President should be determined in Congress, not dictated by the latest poll or the next election.

Some Democrats believe that the surest way of removing Trump from office is letting him stand for re-election in 2020. This is because he can be removed from office by slightly more than a majority of voters, whereas he cannot be convicted in the Senate on less than a two-thirds vote. The Republican-controlled Senate does not seem likely to convict, at least on the evidence we now know. But those of us old to have lived through the Watergate hearings will remember that it was believed unlikely the House would even pass articles of impeachment. Instead, as the evidence was revealed in the House hearings, Republican support for the President began to erode little by little. Nixon resigned because he was told he would lose the House vote.

But here should be the showstopper for Democrats who believe that removing Trump in the election is a better option. Article I, Section 3, Clause 7 of the Constitution says that impeachment and then conviction in the Senate means removal from office and permanent disqualification from holding any other federal office. On the other hand, if the way we get rid of Trump is by defeating him in the 2020 election after he has served only one term, he can – and will – run again.

When Will We Decide We’ve Had Enough?

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Nearly every day, the news reveals another outrage on the part of President Trump that violates constitutional norms. The most recent is his apparent threat to withhold military aid from Ukraine unless that country produces damaging information on former Vice President Joe Biden. At present Biden is Trump’s most likely opponent in 2020. Trump’s arrogance, corruption and destructiveness are unprecedented. I viscerally feel that he is ruining my country. When will we decide that we’ve had enough?

Trump respects no boundaries. He believes he can do anything he pleases as President, at least until someone stops him. We have never had a President like this and we have no systems capable of dealing with him. Under the Constitution, Congress has oversight authority of the executive branch.  But, as we have seen, Trump refuses to cooperate with requests for information and even subpoenas. He directs his subordinates not to testify before Congressional committees. Congress seems dumbfounded and impotent.

The Constitution provides only one remedy for removing a President – impeachment. This will first require a finding in the House of Representatives that Trump is guilty of treason, bribery, or “high crimes or misdemeanors.” This type of “crime” is not a crime in the usual sense but rather an abuse of power by a person in high office. It is a serious offense against the state, against the way our balanced democracy is supposed to run. Can there be any doubt that Trump has crossed that boundary? His refusal to cooperate with Congress alone should be enough, but the list of other offenses is long.

What seems to be holding us up are blind tribalism on the part of Republicans and careful political calculation on the part of Democrats. The Republican “base” has the President they want. He sticks his thumb in the eye of the elites, protects gun ownership and places arch-conservatives on the Supreme Court. Maybe you can understand how these voters perceive the complaints about Trump as purely partisan. But there will be a special circle in hell reserved for Republican Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who remain silent or worse. It is said that these people fear the political consequences from the “base” if they oppose Trump.

The Democrats in Congress aren’t much better. While a number of Democratic Representatives have called for impeachment, many are reluctant. Some from conservative districts are frozen for the same reason that the Republicans are – fear for their political future. Others like Nancy Pelosi argue the larger risks of attempting to impeach Trump. Unless the American people are lined up in favor of impeachment, Democrats are likely to experience the same blow-back from voters the Republicans got when they impeached Bill Clinton. Trump’s re-election prospects might even be improved by an impeachment effort. But this calculation seems different from the Republicans only in degree, not in kind.

We have been awash in so many affronts to the normal order that we are numb. We have lost our sense of outrage. Or maybe because we have never seen anything like this President, we are confused and don’t know what to do. But the problem with inaction is that each affront to constitutional norms makes the next one easier. If someone had told us on the eve of Trump’s inauguration how bad things would be in September 2019 we would never have believed it.

All this circles back to what kind of country we want. The “we” I’m talking about is you and I, at the granular level. Are we just going to wring our hands over how bad Trump is, or are we willing to risk something to stop Trump from creating further damage? It’s a certainty that Congress isn’t going to do anything without the safety of public opinion behind them.

Each one of has to take responsibility for the preservation of our democracy. The situation cannot go on like this. Talk to your neighbor. Write a letter to the editor of a newspaper. Post on Facebook. Call or write your Representative in Congress, even the Trump sycophant Alex Mooney. It is not someone else’s job. It is our job.

How Secure Are West Virginia Elections?

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The Mueller Report released earlier this year detailed numerous ways that Russian operatives sought to interfere with U.S state and local election apparatus in 2016. A Russian entity called the GRU targeted state boards of elections, secretaries of state and county governments with the intent of gaining access to databases of registered voters. In June 2016 they compromised the voter database of the Illinois Board of Elections and extracted information on millions of voters before the intrusion was blocked. Hundreds of outsiders probe West Virginia’s election computer security system daily. Just how secure will the West Virginia election process will be in 2020?

There are really two threats to the security of our elections. One is fraud — the threat that someone will seek to vote more than once, or will vote here after moving to another state, or will impersonate a deceased or ineligible voter. The other is that the election system – electronically maintained voter rolls or electronic vote tabulations – will be hacked and manipulated. Either type of threat could tip an election result and could certainly undermine voter confidence in the democratic system.

Steve Connolly, the Deputy Secretary of State in charge of election protection, has stated that over 50 state, local and municipal elections were decided by single digits in 2018.

Our democracy depends on accurate vote tallies, and even a couple of votes is serious business in tight races. Every fraudulent vote discounts or diminishes the vote of everyone who took the time to properly cast a ballot.

It’s hard to argue with this proposition. In practice, however, Secretary of State Mac Warner has been obsessively interested in preventing fraud, which is almost nonexistent, while risking the chance of disqualifying completely legitimate registered voters.

To keep voter rolls accurate, election officials must periodically remove the names of voters who have died or moved. Beginning in 2017, Warner began aggressively purging West Virginia’s voter rolls. Between January 2017 and October 2018, West Virginia removed 102,797 voters from the rolls – one in twelve who were registered to vote. Several West Virginia counties removed a very large percentage of their voter rolls. Calhoun County, for example, removed 21% of its voter registration list.

But wholesale purges can lead to the erroneous removal of eligible voters. For example, some voters were removed simply because they had not voted in a while, which risks of removing perfectly eligible voters simply because they chose to sit out one or two elections. The Brennan Center for Justice reviewed public reports and conducted interviews with voters and election officials to determine the effect of West Virginia’s purges. They found that voters across West Virginia had encountered problems locating their registration records using the online lookup tool at the Secretary of State’s website, although County clerks reported few problems during the 2018 midterm elections.

Purging voter rolls achieves nothing but eliminating the opportunity for duplicate voting. Someone registered in Jefferson County who moves to Randolph County or to another state could attempt to vote in both places. But, really, how big is that problem? The conservative Heritage Foundation, which tracks cases of voter fraud across the country, could only find two instances of this conduct in West Virginia since their tracking began. Yet Warner is willing to run the risk that eligible voters will be disenfranchised in massive purges simply to remove the tiny chance that someone will abuse the system.

Then there is the chance that someone will impersonate a registered voter. The chance of this happening is even more remote than duplicate voting. Voter impersonation fraud is virtually non-existent in the United States and no cases have been identified in West Virginia. Nonetheless West Virginia, along with a number of other Republican-controlled states, passed a law requiring a voter to present identification to the poll clerk. Voter ID laws complicate the voting process, intimidate some potential voters, and reduce the numbers of poor and less-educated voters who are less likely to have the required ID. These laws are chasing a problem that doesn’t exist and discourage voter participation as a side effect.

The other main threat to election security – the threat exposed by the Mueller Report – is interference and manipulation through hacking. Any electronic record or transaction is vulnerable. West Virginia has embraced cybersecurity with more enthusiasm than most states, but one practice adopted by Secretary of State Warner has been criticized by cybersecurity experts as a dangerous stunt that could allow easy hacking by foreign adversaries.

To resist hacking West Virginia election officials have mostly unplugged from the internet. Although our voting machines are electronic, they are standalone systems that, according to election officials, cannot be hacked from outside. In addition, every voting machine in the state produces a paper trail for every ballot cast. There is a 40-character password embedded in each voting machine that is verified by the tabulation system to ensure that each machine reporting is legitimate. We are assured by state Elections Director Donald Kersey that “what is not possible is for someone to change a vote total or a vote tally or a voted ballot in West Virginia.”

But how about the security of our voter registration records, which are kept in a state-maintained electronic database? Hackers could alter or delete voter registration information, which in turn could result in eligible voters being turned away at the polls or prevented from casting ballots that count. Switching just a few letters in a registered voter’s name in a centralized database could cause a voter to be prevented from voting because of discrepancies between the name listed in an official poll book and the individual’s identification document.

The liberal Center for American Progress awarded West Virginia’s cybersecurity standards for voter registration systems a rating of “good” in February 2018. Among the other positive features of our system is the coordination with the state’s National Guard Intelligence Fusion Center to detect outside efforts to breach the database. West Virginia was also praised for testing its voting machines before and after elections to ensure that a set of mock votes are reported identically. Overall, however, West Virginia and 22 other states received only a “C” grade.

Two practices in West Virginia received an unsatisfactory rating. First, it is not mandatory that precincts compare and reconcile the number of ballots with the number of voters who signed in at the polling place. Furthermore, there is no explicit requirement for comparing and reconciling precinct totals with countywide results to ensure that they add up to the correct number.

The second unsatisfactory practice involves voters stationed or living overseas. Under federal law, these individuals can register and request a ballot with a single post card. Nineteen states require the ballots to be returned by mail, nineteen others allow ballots to be returned by fax or email, and four allow ballots to be returned through a special online portal. In 2018 West Virginia became the only state in the nation to allow the ballots to be returned through a smartphone app. In the 2018 midterm elections 24 West Virginia counties allowed overseas ballots to be returned through the smartphone app, including Jefferson, Berkeley and Morgan.

Cybersecurity experts went ballistic when this practice was announced. “This is a crazy time to be pulling a stunt like this. I don’t know what [West Virginia election officials were] thinking,” said David Jefferson a computer scientist at Lawrence Livermore National Laboratories. Others called West Virginia’s experiment “horrible” and “completely nuts.” Election officials defend the practice by pointing out that the completed ballot is encrypted and secured by a blockchain. But a blockchain is not a way of securing mobile apps before or while the vote is cast. It is only a way to ensure the ballot is not tampered with after it enters the blockchain. If a voter’s phone or tablet is infected with malware it can record or change the person’s vote or infect the state’s entire election structure. So much for the standalone system unplugged from the internet.

In the 2018 midterm elections 144 ballots were returned using the smartphone app, but more than 200 additional voters downloaded the app, verified their identity and tried to get a ballot, only to find that their county wasn’t offering it. Secretary of State Warner declared the program a success and announced it would be used in 2020. But how successful – or not – was the program? Voatz, the company that made the mobile voting software, engaged security experts to audit the results. But none of the auditors have been identified. Moreover, the scope of the tests conducted, how long the auditors had to do the tests, and what information the auditors had access to were not disclosed. One wag has called this “security by obscurity.”

How secure are West Virginia elections? We really don’t know.

What Campaign Contributions Tell Us About Congressman Alex Mooney

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The Federal Election Commission recently published the 2018 First Quarter campaign contribution filings by candidates for federal office. Among these was the filing of our own Congressman Alex Mooney. Mooney has been very successful in raising money, both for the primary just past (he was unopposed) and for the general election coming up in November. Running for Congress is expensive and anyone who hopes to be elected must raise money. But the sources of Mooney’s contributions for this election cycle raise substantial doubt that he will be much interested in the welfare of West Virginia and her citizens.

Congressman Mooney is one of the more conservative members of the House of Representatives. He is a member of the “Freedom Caucus” led by Mark Meadows (R-N.C.), which regularly confounds even moderate Republicans by blocking spending initiatives. By now the story of Mooney’s arrival in West Virginia has been told many times. Mooney served in the Maryland Senate from January 1999 to January 2011, where he represented a district that included Frederick. In 2010, Mooney was elected Chairman of the Maryland Republican Party, where he served as Chairman until early 2013. In that year he moved to Charles Town, West Virginia and began his run for Congress, to which he was elected for the first time in 2014. He filled the 2nd District seat vacated by Shelley Moore Capito. 

Don’t take my word for Congressman Mooney’s hostility to progressive policy. The website VoteSmart compiled ratings by various political interest groups for 2017-2018. Here are a few: Congressman Mooney was rated 0% by the Planned Parenthood Action Fund, 0% by the Humane Society’s Legislative Fund, 0% on the NAACP Civil Rights Report Card, 0% on the National Education Association Report Card, and 0% on the League of Conservation Voters National Environmental Scorecard.

Congressman Mooney’s contributors tell us a lot about whose interests he will have in mind as an elected official, and who will have access to him.  As mentioned, statistics for the state of residence of individual contributors and for the amount of those contributions are available for the full election cycle to date.  His individual contributors are overwhelmingly not West Virginia residents.

For this election cycle so far, Congressman Mooney has raised a total of $527,582 from out-of-state contributors, 87.4% of his total individual contributions.  By contrast, his opponent Talley Sergent has raised a total $107,815 from out-of-state contributors, 55.2% of her individual contributors. Two things are clear from this. Congressman Mooney has raised much more money so far than Sergent and much more of his money comes from out-of-state contributors.

Think about this for a moment. Why would individual contributors from California or Colorado contribute so much cash to a candidate for the 2nd District Congressional race in West Virginia?  I’m willing to bet it is not because of their concern for the citizens of West Virginia.  Most of these contributors probably couldn’t find West Virginia on a map.

Most likely they contribute to Congressman Mooney because of his overall conservative credentials.  Perhaps he appeared on some list of ideologically pure Republican candidates. They want Mooney to win because they think he will satisfy their interests.  So if Congressman Mooney were a calculating man, he might occasionally be inclined to support ideologically conservative positions satisfactory to this contributor base, even when these positions conflict with what is best for West Virginia.

In several cases this appears to be exactly what Congressman Mooney has done. He was relentless in his efforts to repeal Obamacare, red meat for conservatives. In this process he voted for the American Health Care Act that would have rendered 175,000 West Virginians without health insurance.

In the environmental arena, Congressman Mooney celebrated President Trump’s roll-back of the Obama administration’s Stream Protection Rule, which was designed to blunt the harmful effects of mountaintop removal mining. The science on this is not in doubt — mountaintop removal poisons streams, kills fish and wildlife and pollutes drinking water. A ruined environment, fueled by Big Coal and conservative science-denial, directly harms our means of achieving prosperity and our enjoyment of life. But Congressman Mooney is camped out on the wrong side of this issue.

But perhaps the greater cause for worry is the source of Congressman Mooney’s other contributions — corporate PACs. In-house corporate PACs select candidates to support who will be most likely to vote in line with the corporation’s interests. They aren’t just giving away money for the good of the political process. And once elected if the candidate does not reliably vote on these issues, the contributions dry up. Corporate PACs that have contributed to Congressman Mooney will expect their lobbyists to have easy access to him, and that his is a vote they can count on.

So which corporations and industry groups think Congressman Mooney will be a reliable vote on issues that concern them? Here is a selection of many: The American Bankers Association, AT&T PAC, Duke Energy Corp. PAC, Chesapeake PAC, Coal PAC, KOCHPAC, Marathon Petroleum Corp. Employees PAC, NRA Political Victory Fund, and the Goldman Sachs Group PAC. Since these energy and financial PACs clearly think they have something to gain by contributing to Congressman Mooney, then I think they do as well. That is the problem.

Money in politics is a problem for both parties after the Citizens United decision, and Congressman Mooney is not the only politician who accepts corporate PAC money. But Sergent has come out in support of overturning Citizens United and is cooperating with the group End Citizens United. She has received a lone $1,000 campaign contribution from a friend out of his law firm’s PAC, but other than that she has received PAC money only from non-corporate, member-based PACs that have been approved by End Citizens United. These have come from groups such as The West Virginia Education Association and the Women Under Forty PAC.

Until we change our system for funding political campaigns we will have to live with the taint and skepticism that big money contributions create. The real risk, of course, is that these contributions will create more than just a public skepticism of the political process but instead actual pay-for-play corruption. It is my speculation that the lobbyists from the corporate PACs mentioned above have Congressman Mooney’s office on their speed-dial. Is it corrupt when a corporate lobbyist has better access than others to a Congressmen because of heavy contributions from a corporate PAC? I find it hard to escape this conclusion.

The Left, the Right, and the Center

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Socialism, or its less incendiary cousin, Progressivism, conjures up in the minds of some people images of dysfunctional societies doomed to decay through inefficiencies, corruption, restrictions on business, and constraints on freedom. But then when you look at the “happy socialist leaning” countries of Denmark, Norway (one of the President’s favorites), Canada, and so on, you have to wonder what’s there to be afraid of?

I’m personally more frightened that the prevailing and dominating conservative politics we have in government today is turning us into a mean, uncharitable, and violent society. Aiming to be richer and more powerful than the rest is not a way to be better than the rest. And, because it alienates and denigrates so many of our own people, neither is it a pathway to continuing prosperity.

In the United States we operate under a political dichotomy based on a left and a right, and all our social and environmental issues have to align with one of these two political poles. The center between these poles is the increasingly lonely home of the true Independent, a voter whose party allegiances, by definition, are highly susceptible to persuasion and to shifting circumstances.

In this center there are hardly any Republicans, but still some Democrats. The Republicans have all gone to the “hard right,” a place where they stand unshakable in their foundational beliefs in the blessings accruing from capitalism. From this place, they spend prodigious amounts of money to solidify their control and seduce Independents with arguments promising stability and equanimity. These are the kinds of pitches that naturally appeal to Independents, who hope for a cooperative way to govern so as to get things done. In reaction, the Democrats make the same broad appeals, but increasingly from the position of a progressive “hard left.”

But right or left, if the promises and the arguments are lies, attractively packaged and persuasively scripted, they can find easy marks among the Independents. Being less antagonistic to either side, Independents are less likely to see through to any underlying deceit. They likely won’t even detect when they could be voting against their best interests. So, if lying is effective, isn’t this the tack both parties should take? Is this the way to win political contests?

President Trump is prone to calling any information he doesn’t like “fake news” and “witch hunting.” Since he directs his barbs predominantly at left leaning journalists and news organizations, his characterization exposes his bias. So, isn’t that just politics? Isn’t that what we expect from our politicians? Maybe so. But the danger of branding every journalist who sits left of Trump as an enemy encourages those who side with him to put out a lot of “fake news” of their own.

A lot of politicking is about sucking up to power and in Trump, who thrives on being sucked up to, we have a government that has left us bereft of balance and dismissive of dissent. But fact checkers and certifiably unbiased journalists unearthed a lot of lies the Republicans pushed to win control of the Presidency, the House, and the Senate. Any lies that the Democrats may have told were not believable enough to win them the election.

The Republican campaign platform, while presenting worthwhile aspirations on their face, were only achievable through policies left unstated or lied about. Some examples: to bring coal mining jobs back to West Virginia (but only by revoking clean air legislation and raising the cost of electricity); to make every citizen wealthier (but just if those citizens were already rich); to repair our trashed roads, bridges, dams, etc. (but only if it didn’t cost the Federal government any money); to assure that every person had fabulous health care (but only if they could afford it); to bring jobs back to America from overseas (but by starting a trade war and raising costs to do business); to secure our borders (but by expelling a lot of exemplary people and splitting families); to protect the planet (but suppressing the science showing the planet is in crisis.) The Independents didn’t read the fine print on these promises.

The lying came about in how the politicians of the radical right denied or never mentioned the fine print during the campaign. In so doing, their goals seemed innocuous, even broadly beneficial. Here are a few ways they did it: funneling millions of dollars of dark money from billionaires like the Koch Brothers to buy “research” to support their positions; establishing political PACs operating as “charities” but benefiting only themselves; buying legislators to support their special interests legislatively; flooding airways and social media with propaganda telling us that the corporate thieves who have been robbing us of our prosperity for generations are now our saviors; wrapping their agenda in moral language intended to appeal to religious belief; impugning the integrity of scientific research and denigrating teachers; and always, always, always pointing the finger of blame at others for all that’s wrong in the world.

All this lying is packaged to make it attractive to Independents and to turn voters to a white light that leads not to any better world, but to the crippling of our democracy. We get only the cast-offs and hand-me-downs of the 1%.So, does the Democratic Party need to be just as unwavering and rigid in its positions to counter the right’s ideological rigidity? Does it mean that the party should take a “hard left” to counterattack? Probably yes it does. To get the seesaw balanced the end forces have to be equal.

But can Democrats lie and distort? Of course, they can, but they can’t do it as well as Republicans. Not because they have nobler instincts, necessarily, but because Democrats operate within a wider tent than Republicans. Compare the overwhelmingly white faces at the Republican convention with the rainbow of faces at the Democratic.

Messaging from the left aimed at convincing Independents necessarily has to be more honest about the fundamentals. Progressive Democratic priorities are focused on community and the good that people can do for each other. It’s an essential part of their vision that people have to work together. Union, equality, livability, survivability are not easy principles to fudge. It’s not as possible to create a fraudulent scenario in which we’re meant to believe that the rich have our best interests at heart.

Democrats can’t do that because it’s hard to trickle down wealth that you don’t have. It’s hard to deny the truth of inequality when you live in the middle of it and experience it firsthand. Democrats have to participate in their full community and that leaves little wiggle room for deception.

But unfortunately, it also makes it harder to present a positive, rousing message at campaign time. So, from the Republicans we get a chicken in every pot and a $1.50 a week as a tax benefit. From the Democrats we get the sweaty prospect of a long row to hoe. But there at the end of the row is the reality of universal health care, functioning public schools, a livable wage, an end to poverty, a sustainable environment, and a spirit of community cooperation that can transcend racism and exclusion. A better, safer country, in other words.

If You Voted in the Primary, You Probably Did Something Irrational

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May 8 was primary election day in West Virginia and several other states. Typically, a primary election picks the candidate who will bear one party’s standard in the November general election against the other party’s candidate. The expectation is that the candidate with the more attractive qualities or the better policy views will be able to persuade a majority of voters in the general election. Perhaps this winning candidate will even be able to attract a substantial number of voters from the other party. Of course, this is the storybook version of democracy. It is based on the fiction that voters behave in a rational way, voting for a candidate only after thoughtful evaluation of the contenders. This is simply not what happens.

The Founders of our nation did not anticipate political parties and made no plans to deal with them in the Constitution. But intense party factionalism developed almost immediately. The 1800 election between John Adams (Federalist) and Thomas Jefferson (Republican) was probably the nastiest on record. While there have been some periods of relative cooperation between the parties during which we accomplished a lot at the national level, there have also been long periods when partisan behavior has been an intense, zero-sum contest designed to crush the other party. This is where we are today.

How many times have you heard someone say that West Virginians voted against their own interest when they voted overwhelmingly for Donald Trump? It would certainly be easy to detail the various ways that Trump’s policies disfavor middle-income and poor citizens. Clearly, something besides a thoughtful evaluation of the pros and cons of Trump’s policies was at work before the 2016 election.

There are two main theories that seek to explain why voters behave “irrationally,” by which I mean they willingly support a policy or vote for a candidate who will actually harm their interests. The first of these is called the public choice theory. This theory is much beloved by right wing academics and believers that markets are more efficient than government at solving problems. Although the public choice theory began in the field of economics, it is now being used to explain political outcomes.

The public choice argument goes like this. Voters are “rationally ignorant” because their one vote has so little effect. What’s more, voters are lazy and evaluating candidates and issues is hard work. Not only will voters fail to do their homework before an election, they will fail to keep up with events later and hold their elected officials accountable. This creates a sort of vacuum in which elected officials operate.

Public choice proponents also argue that politicians are self-interested actors who will do whatever is required to get themselves elected and re-elected. They know that winning elections requires lots of money, which they now mostly get from special interests – the NRA, the Chamber of Commerce, and the like. It is in the self-interest of elected officials to satisfy the policy goals of these special interest groups, even though the result may actually harm you and me. The failure of Congress to pass meaningful gun legislation seems a perfect example of the public choice theory at work.

Basically, the public choice theory argues that we allow bad candidates and bad government to happen to us. But in my view, the theory is too cynical about the motivation of politicians and too dismissive of the general public’s willingness to vote in their own interest, however they perceive it. I think elected officials will mostly seek to satisfy the public’s policy desires, even when these are emotional or ill-informed. So when we elected Donald Trump, we as a nation got the candidate we wanted. In this sense, democracy worked but it produced a terrible president who is pursuing “irrational” policies. The question is why did we want this? The public choice theory doesn’t answer this question.

Many believe that the answer is lack of information. They argue that too little information — about climate change, or taxes, or the budget deficit — is what causes us to vote for demagogues and support wacky, harmful policies. If only the citizenry were more informed, the thinking goes, then there would be agreement on the way forward. This causes us to devote enormous amounts of energy and money trying to persuade each other that we, not they, have the “right” answer to our problems.

But recent research strongly suggests that the “too little information” explanation is wrong. The real explanation is hyper-partisanship and how it affects our use of information. It suggests that there are some kinds of debates where people don’t want to find the right answer, they just want to win the argument. Truth isn’t as important as advancing the success of one’s tribe, or conforming to the norms of the tribe. Providing more information to partisans just means they are better equipped to argue for their own side.

Most people are able to use reason and knowledge to sort through evidence of some kinds and reach a rational conclusion – that there are other galaxies in the universe or that antibiotics are helpful. But we suspend this ability and even use information in perverse ways when the answers could otherwise threaten our tribe or our social standing within the tribe.

In a 2014 article published in the online journal Vox, Ezra Klein describes how the social pressure to conform to the tribe’s orthodoxy would work:

Imagine what would happen to, say, Sean Hannity if he decided tomorrow that climate change was the central threat facing the planet. Initially, his viewers would think he was joking. But soon, they’d begin calling in furiously. Some would organize boycotts of his program. Dozens, perhaps hundreds, of professional climate skeptics would begin angrily refuting Hannity’s new crusade. Many of Hannity’s friends in the conservative media world would back away from him, and some would seek advantage by denouncing him. Some of the politicians he respects would be furious at his betrayal of the cause. He would lose friendships, viewers, and money. He could ultimately lose his job.

Some might argue this point, but I think there are “facts,” things that are unassailably true. Facts can’t be weakened or changed by subjectivity or perception. For example, it is a fact that the Earth revolves around the sun. Propositions like this eventually become “facts” because they are repeatedly supported by observable evidence. But today questions of science have become questions of identity. The willingness of partisans to acknowledge the probity of evidence, and even facts themselves, seems to depend on the source of the information. I had a good friend who would not accept anything as true that was uttered by The Washington Post. I have to admit feeling the same way about Fox News.

In her 2016 book Strangers In Their Own Land, sociologist Arlie Russell Hochschild sought to understand our political divide by living in working class areas of Louisiana for several months. Her purpose was to scale the “empathy wall” between our right and left political tribes. She wanted to understand how Louisianans continued to support politicians and policies that were objectively bad for them:

Across the country, red states are poorer and have more teen mothers, more divorce, worse health, more obesity, more trauma-related deaths, more low-birth-weight babies, and lower school enrollment. On average, people in red states die five years earlier than people in blue states.

The sympathetic people Hochschild described were living in neighborhoods literally drowning in pollution from petrochemical plants. Given all of this, the “rational” person would be mad as hell. Yet it was difficult for her to find anyone who would criticize the responsible oil and chemical companies. Many were Tea Party adherents who were opposed to any intervention by the federal EPA. They also readily believed that the more industry there was, however dirty, the more prosperity there would be and the less they would have to rely on government at any level. Very few people had the courage to point out the harm residing in this approach.

Sound familiar? Not many people in McDowell County, West Virginia are likely to complain about the coal industry, much less the environmental degradation and boom-bust economy that comes from coal. Perhaps this is an extreme example of policy irrationality, but we all exhibit this kind of thing to some extent.

It is hard to see a way out of this problem. Ezra Klein suggests that a solution might be to improve science communication, but this improved information would have to come from sources not identified with either political party. What would these be? He also points out that policy is made centrally but its effects are felt locally. If policy is really harmful, even though we irrationally voted for it, we will eventually come to our senses and vote the bastards out. But what appeals to me is reducing hyper-partisanship by making our tribes more inclusive. We are always going to be tribal, but what if we admitted more people into our tribe so that their concerns and ideas began to make better sense? Maybe the thing to do is have a beer with our political opposite number and, as Hochschild says, try to scale the empathy wall.

West Virginia’s New Voter ID Law and the Myth of Voter Fraud

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Effective on January 1, 2018, West Virginia law now requires a prospective voter to present a valid identifying document to a poll clerk. The clerk will then verify that the name on the document conforms to the individual’s voter registration record. If the identifying document has a photograph, the poll clerk will determine that the photograph is “truly an image of the person presenting the document.” This new law is similar to voter ID laws passed by state legislatures around the country at the urging of Republicans. But voter impersonation fraud – the only possible fraud affected by the new law — is virtually non-existent in the United States and no cases have been identified in West Virginia.

I believe that West Virginia’s new voter ID law will have the consequences – perhaps intended – of complicating the voting process, intimidating some potential voters, and reducing the numbers of voters from the poor and less-educated ranks of our state. It will slow the voting process and create lines where there haven’t been lines, thereby frustrating and deterring voters. If these predictions are correct, the new law will undermine voter confidence and participation. But there are benign aspects of the law that should be acknowledged.

There are eighteen categories of documents that may be used to establish identity, not all of which are photo IDs. Most people will have at least one of them. If not, a voter can be accompanied to the polls by someone who can vouch for her identity. If none of this works the voter will be required to execute an affidavit stating his identity and that he is the person listed in the precinct voter records. He will then will be permitted to vote a provisional ballot. The question of his identity will be resolved by election officials later. The provisional voter will not be required to take any further action to have his vote counted. In theory, anyway, no one will be turned away from the polls.

West Virginia’s new law is less restrictive than the laws passed in many states. Seventeen states require a photo ID, which African-Americans and Hispanics are statistically less likely to have. In ten states voters who do not have the required ID may vote a provisional ballot but must take some action after election day, such as returning to the polls with a qualifying ID, for the provisional ballot to be counted. These strict requirements have been challenged in court, with some notable successes so far.

West Virginia’s new voter ID law was passed in 2016. To the surprise of many, an amendment proposing automatic voter registration when an individual interacts in some way with the Division of Motor Vehicles also passed. At that time only two other states – Oregon and California – had automatic voter registration. Automatic voter registration is already showing clear benefits in Oregon. Within two months of implementation more than 15,500 Oregonians were registered — a four-fold increase. Thirty percent of the new registration records transferred from the Oregon DMV to election officials reflected eligible but previously unregistered citizens.

Saira BlairWhen the Republican legislators who sponsored the voter ID law realized that it might actually increase voter registration, they began to backpedal. During the 2017 legislature, Del. Saira Blair (R-Berkeley) proposed an unsuccessful amendment to the original bill that would have permitted voting only upon showing a photo ID. Blair, who is 21 years of age, couldn’t cite a single case of voter fraud but sponsored the amendment because she had heard anecdotes. She said “without photo identification, it’s hard to stop fraud, and it’s also nearly impossible to prove it took place.” As Supreme Court Justice David Souter quipped, this is like arguing that “the man who isn’t there is hard to spot.” Really, isn’t there anyone more mature than Blair – Republican or Democrat – who is willing to run for this seat?

It is no wonder that Del. Blair could cite no cases of voter impersonation fraud in West Virginia, because there just aren’t any. A comprehensive study of allegations of impersonation fraud (not just prosecutions) was begun in 2008 by Justin Levitt, a professor at Loyola Law School in Los Angeles.  As of 2014 he had logged only 31 incidents nationwide out of over one billion ballots cast.  None of these were in West Virginia. And keep in mind that impersonation fraud is the only kind of fraud the new West Virginia voter ID law is designed to prevent.

Impersonation fraud is exceedingly rare for several reasons. First, it is risky to the fraudulent voter. He must announce himself in front of poll workers, who may know who he actually is or the person he claims to be.  Second, the penalty for fraudulent impersonation of a voter is severe – it is a felony. Third, a fraudulent impersonation affects only one vote. The risks and rewards just do not encourage impersonation fraud.

West Virginia’s former system of voter identification required the voter to announce his name in front of poll workers, sign a register and have poll workers compare that signature to the one in voter registration records. This system worked exceedingly well to deter impersonation fraud before the enactment of the new voter ID law. One wonders about the true motivation for adopting this legislation – it certainly wasn’t based on a problem that needed to be fixed.

In her excellent 2010 book The Myth of Voter Fraud, Lorraine Minnite concludes that

The best facts we can gather to assess the magnitude of the alleged problem of voter fraud show that, although millions of people cast ballots every year, almost no one knowingly and willfully casts an illegal vote in the United States today.

Instead, voter fraud is a politically constructed myth. It is used to support measures that suppress the opposition party’s votes because this is more effective and less expensive than mobilizing new voters who may end up destabilizing a party’s own coalition.

Voting is a constitutional right. So it is unconstitutional to condition the exercise of that right on the payment of a poll tax. However, current Supreme Court law does not extend this principle to universally applicable voter ID requirements, such as requiring a photo ID, even where they burden the right to vote for some groups like the elderly, the homeless and the disabled. Nevertheless the legislative motivation for adopting such requirements can render them unconstitutional. North Carolina’s strict voter ID law was struck down by the Fourth Circuit Court of Appeals (also with jurisdiction over West Virginia) because it was surgically designed to reduce African-American voting. There is no similar legal challenge to West Virginia’s new law.

My advice to West Virginia voters: get your IDs ready, be prepared to stand in line, and be sure to thank the Republicans for their handiwork in 2018.