How Secure Are West Virginia Elections?

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

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

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

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

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.

Partisan Gerrymandering and the Constitution III

This is the third and final in a series of posts on the issue of political gerrymandering as raised in Gill v. Whitford, the Wisconsin case recently argued before the U.S. Supreme Court. In that case the Republican majority of the legislature intentionally redrew state district boundaries to ensure that in the future Republicans won a majority of seats even when Democrats prevailed in the state-wide popular vote. The Democrat challengers in court claimed that their rights to free association and speech under the First Amendment and their right to equal protection under the Fourteenth Amendment were violated by this. How the Supreme Court resolves this case will determine how well our democracy works for decades.

Recall that a test has never been found that reliably distinguishes the acceptable application of political power in drawing district boundaries from unconstitutional vote dilution. For that reason, courts have repeatedly expressed skepticism about whether political gerrymandering cases are justiciable – capable of being decided consistently and fairly.

This shouldn’t be a Republican versus Democrat issue in the traditional sense because either party can be disadvantaged by political gerrymandering. But it is an issue that divides conservative jurists from more liberal ones. During the argument of Gill before the Supreme Court, the four conservative Justices emphasized lack of justiciability and staked their position that gerrymandering is a political issue that has no judicial solution. Chief Justice Roberts was concerned that invalidating the gerrymandering in Wisconsin would lead to a wave of these cases reaching the Supreme Court since, unlike most cases, the Court is required to hear redistricting cases. This, argued Roberts, would draw the Court too much into the political realm reserved for the legislative branch.

On the other hand, the four liberal Justices emphasized the damage to individual rights created by gerrymandering and seemed more open to judicial intervention. Justice Ginsburg told the lawyer from Wisconsin that the case involved “the precious right to vote” and speculated that if the result of an election were preordained because of gerrymandering the people would lose their incentive to go to the polls.

Justice Anthony Kennedy occupied the middle ground, as he does on so many issues, and seemed supportive of the challengers’ social science approach as perhaps finally providing a satisfactory tool for judging these cases.

The challengers proposed two major methods by which to test partisan gerrymandering. These would work in tandem. The first is called “partisan symmetry.” It is based on the idea that the electoral system should treat similarly-situated parties equally so that they are able to translate their popular support into legislative representation with approximately equal ease. Asymmetry is found where there is a marked difference between the number of seats each party would win in the hypothetical election where the popular vote is split equally.

The challengers showed at trial that over the three elections in Wisconsin after redistricting, Republicans would have won between 61.6% and 62.7% of the seats if the state-wide popular vote had been perfectly tied.

The second test proposed by the challengers is what they called “the efficiency test,” a mixture of political science and statistics. This test analyzes actual elections. Gerrymandering works either to “pack” or “crack” districts of the victimized party. Packing is to transfer to a district already partial to one party voters from that same party. The transferred voters no longer pose a threat to the other party in the district from which they came and are unnecessary to elect their party’s candidate in their new home district. Cracking is to split a district heavy with voters of one party and transfer them to districts where they will be in the minority and can no longer elect their candidate of choice. The efficiency test treats votes as “wasted” in a district if they are more than required to elect a favored candidate (packing) or if they are cast for a losing candidate (cracking).

The challengers showed at trial that votes for Democratic candidates were wasted at a rate of from 9.6 to 13.3 percentage points higher than the rate at which Republican votes were wasted.

Both these tests start from the proposition that registered Democrats will vote for Democrat candidates and registered Republicans will vote for candidates from their party. Skeptics argue that this makes the tests proposed by the challengers nothing more than disguised tests of proportionality – assuming that results are constitutional only when they reflect the size of the voter group under consideration. That would ignore what legitimately occurs when a charismatic candidate from one party draws votes from registered voters of the other party. The challengers answer this criticism by pointing out that their statistical arguments are based on many races in many districts over many election cycles, which evens out the anomalies.

In the long run, this case may be decided on a more straightforward issue that does not get into the weeds of political science and legal tests. Justice Sotomayor asked the lawyer for Wisconsin “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?” The lawyer had no satisfactory answer.

Partisan Gerrymandering and the Constitution II

Today, October 3, the Supreme Court heard arguments in the case of Gill v. Whitford, in which the Wisconsin legislature was caught red-handed manipulating the state’s voting districts to ensure that Republicans retain control for a decade, even if they lose the state-wide popular vote. The process by which the legislature did this was secret – the redistricting plan was drafted in a conference room of a private law firm with the aid of sophisticated software. Democrats were totally excluded from the process. Much of the damning evidence came to light when recall elections involving several state senators briefly put the Democrats back in control. Since the law firm represented the legislature itself, not the former Republican majority, the new Democratic majority instructed the lawyers to release the records of how the gerrymandering was done. What spilled forth should make the hair stand on the back of your neck.

Lest we Democrats feel righteously indignant about this conduct by Republicans, keep in mind that there is pending litigation in Maryland alleging that the Democrat majority engaged in similar partisan gerrymandering. Concern about the ill effects of partisan gerrymandering is shared by both sides of the political spectrum. The “friend of court” briefs filed in Gill v. Whitford demonstrate a range of opinions even among Republicans. One such brief filed by the National Republican Congressional Committee urged the Supreme Court to reverse the lower court, which had found the gerrymandering unconstitutional. Another filed by Republican Statewide Officials, including luminaries such as Bill Brock, Bob Dole and Richard Lugar, urged the Supreme Court to reject blatant partisan gerrymandering by affirming the lower court.

The Supreme Court never makes wild leaps into unknown territory. We have a common law system in which the law builds incrementally upon past decisions. The litigants attempt to show that their side is most consistent with prior precedent. The Court carefully attempts to justify each new decision by some earlier decisions or application of law. Rarely are prior decisions directly overturned. Accordingly, the Supreme Court’s previous decisions on partisan gerrymandering are the starting point for understanding what will happen when the Court decides Gill v. Whitford.

There are two prior decisions of importance. The first is Davis v. Bandemer (1986), in which a redistricting plan in Indiana was challenged by Democrats who claimed that their voting power as a group had been subverted in violation of the Equal Protection Clause. The big question in the case was whether this claim was “justiciable,” meaning whether a test could be found enabling courts to distinguish unconstitutional vote dilution from the acceptable exercise of political power by the majority party.

Although the principle of “one person, one vote” was well-established by 1986 and racially motivated gerrymandering was clearly illegal, four Justices in Davis said that the claim by a state-wide voter group was not justiciable. “A group’s electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation will not be sufficient” to violate equal protection.

A fifth Justice argued that the claim in Davis could be decided because there was no significant difference between vote dilution affecting individuals and voter groups. But he agreed that the claim should be rejected on the narrower ground that there was insufficient proof of a violation under a test that he proposed as the correct one. His test required a showing (1) of legislative intent to deprive a voter group of equal power to elect representatives, and (2) an enduring effect on that voter group extending over more than one election cycle. But, according to him, that enduring effect cannot be proved by mere disproportionality between the size of the victimized group and the number of representatives they elect.

Confused? So was every court that tried to apply this test for the next eighteen years. In fact, every lower federal court that attempted to do so threw up its hands and concluded that partisan gerrymandering claims were impossible to judge. In the second case of importance, Vieth v. Jubelirer (2004), four Justices of the Supreme Court ruled that equal protection claims on behalf of state-wide voter groups were never justiciable because no workable standard for judging them had emerged. They declined to adopt the standard in Davis, saying it “was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by [the challengers].”

But four Justices do not make up a majority of the Supreme Court, and the fifth Justice who concurred with the four nay-sayers in Veith – Justice Kennedy – is still on the Court and will be critical to the decision in the present case from Wisconsin. Kennedy left a crack in the door for finding a test by which to judge equal protection vote dilution claims on behalf of state-wide voter groups:

I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.

For Kennedy, employing political classifications in redistricting is not itself unconstitutional, but doing so in an invidious manner or in a way unrelated to any legitimate legislative objective might be. He warned that if courts refuse to entertain any claims of partisan gerrymandering, the temptation for legislators to use partisan favoritism will grow.

This was prophetic. After the 2010 census, state legislatures went on a binge of partisan gerrymandering in the drawing of state and Congressional district lines unseen in the decades before. In Gerrymandering in America (2016), Anthony McGann and his co-authors say:

partisan bias increased sharply in the 2010 [Congressional] districting round. We find the bias of the House of Representatives in 2012 was around 9%. Roughly speaking, this means that if there were a 50/50 vote split, one party would win 55% of the seats, while the other would get 45%. This compares to a 3% bias in the 2002 redistricting round. In many individual states the bias is far, far greater . . . . There are numerous states where . . . one party can win between two-thirds to three-quarters of the seats with only half the votes.

The pressure on the Supreme Court to come to grips with this profoundly undemocratic situation will be substantial. And, as I hope to explain in the next post on this topic, the challengers to the Wisconsin redistricting may very well have the evidentiary approach that can attract a solid majority of the Court.

One more thing. It may surprise West Virginia readers of this post that our state has filed a friend of the court brief in Gill v. Whitford. Decisions to file briefs are made by the Attorney General, in this case by the arch-conservative Partick Morrisey, who has announced his candidacy for the Republican nomination for Governor. In the brief, West Virginia takes the position that “there is nothing inherently suspect, invidious, or irrational about a legislature using partisan purpose when redistricting.” This presumably reflects the confidence of the West Virginia Republican Party that it is safely in the majority. But what seems appropriate in redistricting is in the eye of the beholder. And, of course, the worm can turn.

Partisan Gerrymandering and the Constitution

On October 3, 2017, the United States Supreme Court will hear arguments in the case of Gill v. Whitford. This case raises the question of whether gross partisan gerrymandering by the Wisconsin state legislature in creating state voting districts violates any provision of the U.S. Constitution. Partisan gerrymandering – intentionally drawing voting district lines to favor one party or the other – has seen a sharp increase since the redistricting that followed the 2010 census. Many observers believe that partisan gerrymandering is to blame for much of the gridlock in Congress and the state legislatures because highly partisan districts elect highly partisan representatives who have no political room to compromise. The old legal wisdom is that for every wrong there is a remedy, so you would expect that this case would be a slam-dunk for those challenging the Wisconsin redistricting in the Supreme Court. But you would be wrong.

Appendix AFirst, some basics. The constitutions of each state determine the number of state Senators and Delegates assigned to voting districts and the apportionment of the state’s population into those districts. In West Virginia the House of Delegates is composed of a fixed 100 members, each theoretically representing 1/100 of the state’s population. But instead of there being 100 districts, our legislature has created 67 districts some of which elect multiple Delegates. (Appendix A). All Delegates face re-election every two years.

There are two Senators from each of seventeen senatorial districts for a total of thirty four. According to the West Virginia Constitution, senatorial districts “shall be compact, formed of contiguous territory, bounded by county lines, and, as nearly as possible, equal in population, to be ascertained by the census of the United States.” (Appendix B). There is no such language relating to House districts. Senate terms are four years and elections are staggered so that a portion of senators faces re-election every two years.

Appendix BState legislatures also draw each state’s Congressional district boundaries, which must be revisited every ten years immediately after the census. West Virginia has had three Congressional districts for several decades, but their boundaries have changed slightly over time to reflect the shift in population to the Eastern Panhandle and Monongalia County. The U.S. Constitution and its Amendments determine who can vote in federal elections. But as for how districts are constituted, it merely says that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective numbers” and that “the number of Representatives shall not exceed one for every thirty Thousand.”

The basic requirement of Congressional apportionment that each district have an approximately equal population is consistent with the 5th Amendment’s promise of equal protection of the law. For example, if District A has a population of 750,000 and District B has a population of 800,000, then voters in B have an incrementally less powerful vote. That same principle was made applicable to the states by the 14th Amendment, ratified after the Civil War. In a series of cases in the 1960s, the Supreme Court announced that “equal protection” in the context of state legislative district apportionment meant “one person, one vote.” For example, in Reynolds v. Sims (1964), the Court said:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . . By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.

But if all equal protection requires is districts of equal population, there is still an infinite number of ways to divide a state’s population into roughly equal segments. The development of software that predicts the likely election consequences of moving even small groups of voters from one district to another has tempted legislatures to find just those configurations that maximize the likely future success of the party in power, while still satisfying the equal population requirement. The Republican legislators in Wisconsin sorted through multiple proposed district maps with the use of redistricting software and the help of political science experts until they found the one they believed would best ensure their control of the legislature for an entire decade even if they were to lose the popular state-wide vote.

The challengers to this plan in Wisconsin were numerous individuals and groups acting on behalf of Democrat voters in the state. There is a subtle but significant difference between protecting an individual voter from the dilution of her vote and protecting a subset of the whole voting population – registered Democrats – from being deprived of a proportionately equal chance to elect Democrat candidates. This difference raises the question of whether the Equal Protection Clause even applies to state-wide voter groups? If it does, are all such groups entitled to equal protection? If Democrats and Republicans as distinct voter groups are entitled to equal protection, how about the Green Party or the American Nazi Party? This is one thing that makes the issues raised in the Wisconsin case so difficult for courts to get their minds around.

There is even a more fundamental legal question the Court must answer before deciding whether the Equal Protection Clause prevents partisan gerrymandering. That question is “justiciability” – whether a clear rule can be found delineating what is acceptable from unacceptable in the drawing of district boundaries and whether courts should step into the political arena at all in view of the separation of powers. In my next post, I will explain why partisan gerrymandering greatly intensified after the Supreme Court’s last pronouncement on these issues in 2010, and where the law now stands on the issues presented in the Wisconsin case.

 

Jeff Flake’s Conservative Conscience

Jeff Flake is the junior United States Senator from Arizona. He graduated from Brigham Young University with a degree in International Relations and spent time as a missionary in South Africa. Later he served as the Executive Director of the Goldwater Institute, a conservative think tank, and was elected to the House of Representatives six times beginning in 2000 before his run for the Senate. Flake is very conservative, believing that government’s involvement in the lives of individual citizens should be minimized and that strangling tax revenues and spending is the best way to ensure this. He is pro-life, opposed to gun control and voted against disaster relief spending for victims of Hurricanes Katrina and Sandy. So one would not expect Jeff Flake to be openly critical of a Republican President whose election in 2016 made this conservative nirvana more likely. But Jeff Flake is a man of principle and he has unloaded on Donald Trump.

Flake’s opposition to Trump began during the 2016 Presidential campaign. Although he does not acknowledge a vote for Hilary Clinton, Flake openly admits he did not vote for Trump. He then opposed Trump’s travel ban, declaring that it was unacceptable when even lawful permanent residents could be stopped at the border.

Flake is up for reelection in 2018, so he has recognized that his maverick positions require some explaining. He has attempted to do this in a book recently published entitled Conscience of a Conservative, a title he borrowed from Barry Goldwater’s famous manifesto.

Flake’s opening salvo in the book is a description of the “madman” strategy employed by Richard Nixon to make Ho Chi Minh believe that we might actually drop a nuclear bomb on North Vietnam. In a breathtaking observation about Trump, Flake says “there is a significant difference between appearing to have problems with impulse control and actually having impulse-control problems.” Flake does not let up from there.

Perhaps most destructive of all, we haven’t ever had an occupant of the White House who so routinely calls true reports that irk him “fake news” while giving his seal of approval to fake reports that happen to support his position. This is tremendously damaging . . . Only in anti-democratic propaganda states do we see “alternative facts” successfully compete with the truth for primacy.

Flake not only takes aim at Trump, he is also critical of the partisan gridlock in Congress and the behavior of his own party. He says that the “impulse to dehumanize, to ascribe the worst possible motives to people who in normal times would be regarded not as ‘the enemy’ but merely as political opponents, is a signal that something is terribly wrong.” This applies, of course, not only to Republicans but to all of us these days. In a chapter entitled “Country Before Party” he speculates that Lincoln, Teddy Roosevelt and Ronald Reagan might not be welcome in the Republican Party of today because they were pragmatic and willing to compromise to achieve important national goals. In a particularly powerful passage he argues that

populist resentments may feel good in the moment, but indulging them is destructive, and self-destructive, and offers no solutions to the very real problems that gave rise to the resentments in the first place. Manipulating populist resentments is the oldest trick in the book, and it is shameful. When we allow ourselves to prioritize winning at all costs over what is best for our country . . . then we have chosen our political interests over the public interest and in so doing we inflict great harm on the country.

This is certainly refreshing and welcome. But it will not endear Flake to the harder right elements in his own Party. He now has a challenger in the upcoming Arizona Republican primary, who called his refusal to support Trump “treacherous” and describes Flake’s policies as “America Last.” Trump won in Arizona over Clinton by only 49% to 45% — a far smaller margin than in West Virginia and the narrowest win for a Republican since 1996. So Flake will have both a vigorous Democratic opponent and his hard right challenger to consider. On top of this, his popularity rating in Arizona last fall was only 35%. All this has led The Atlantic magazine to wonder whether Jeff Flake is “too nice” for the Senate, noting that he sometimes seems as if “he has just crash-landed here in a time machine from some bygone era of seersucker suits and polite disagreements.”

It is hard for a progressive to wish a man like Flake political success. His views on most things are somewhat extreme, as befits his libertarian outlook. But on closer inspection he can’t be so easily dismissed. Indeed, he may be an example of a middle course like the one Joe Manchin has attempted to take. For example, Flake is a globalist, believing that we all prosper through international trade agreements and calling for a renegotiation of NAFTA instead of a complete rejection of the treaty. He also flatly rejects Trump’s populist anti-immigrant stance and supported an end to the Cuban Trade Embargo.

Whatever can be said about Jeff Flake’s political views, it is plain he is driven by principle. It is hard to say the same about Joe Manchin. The best that can be said about Manchin’s behavior in the Senate is that he consistently votes in a way he thinks will help West Virginians. But his judgments on this are sometimes debatable, such as with his unflagging support for the coal industry. On matters affecting the nation more than the state, Manchin’s only “principle” is political survival. One can’t help wish for a West Virginia Senator who is willing openly to stand for country over party, for respect of the opponent even during disagreement, and for basic decency despite the political risk. Maybe this is the true middle course that, in the end, will be rewarded by voters.

 

The Old Bait And Switch

West Virginia voters have just been made the victims of a fraud — we were sold one thing by Jim Justice and he has now delivered another. It did not take him long to reveal the fraud, suggesting that it was intended from the beginning.  In Huntington with Donald Trump on August 3, 2017, Justice announced that he was switching parties from Democrat to Republican. Recall that this is a man who switched party affiliations from Republican to Democrat in February 2015 so he could run for Governor on the Democrat ticket. He was elected in November 2016, a mere nine months before switching back to Republican again. In front of a cheering crowd who had booed him just moments before, Justice explained that “I just can’t help you anymore being a Democrat governor.” This bait and switch had far less to do with Justice’s desire to be an effective governor than with his lack of character.

It’s easy to dispose of Justice’s claim that being a Democrat governor limited his effectiveness during the recent budget fiasco. When his proposed budgets were first introduced to the Legislature they involved generating new revenues and preserving the spending necessary to retain the state’s social fabric. He got wide support for this from the Democrats but little support from the Republicans. As the debate wore on, however, Justice abandoned the progressive aspects of his budget and began caucusing with the far-right Senate Republicans in their effort to cut income taxes.

These income tax cuts were not only opposed by Democrats, but also by House Republicans. Since Republicans control the House of Delegates, it was Justice’s inability to deal with them that ultimately frustrated him. But actually being a registered Republican would not have improved his effectiveness.  He had already taken up with the right fringe in the Senate and begun to act like a Republican. Instead it was his poor policy choices, frequent course reversals and shallowness that caused his ineffectiveness. He has poor political instincts and is simply not a leader.

There is no question, however, that Justice’s switch of party affiliation has damaged the already lame Democrat party. That party has been able to elect only one Democrat out of five Congressional representatives and now all in the state’s elected leadership are Republican. Sen. Joe Manchin, who is reputed to have recruited Justice to switch parties to Democrat and run for governor, looks like a fool. So does current State Democrat Party Chair Belinda Biafore, who claims that Justice duped her, not to mention former Democrat Party Chair Nick Casey, who is Justice’s Chief of Staff. Calls for a shake-up of Democrat party leadership have already begun. Former West Virginia Senate President Jeff Kessler, a respected Democrat who lost to Justice in the 2016 primary, said “It’s time for a change at the top . . . They need some new leadership at the Democrat chair.”

Nobody looks good in this. The Republicans have their own problems welcoming back to their party a governor they were happy to lampoon just days ago. The Republican Governor’s Association said in November 2015 that Justice was “a selfish businessman who consistently put his interests before anyone else’s, especially taxpayers.” The West Virginia Republican Party said in July 2017 that “Jim Justice embarrasses our state every single day.” These statements were catalogued by the Democratic Governor’s Association, who are now firing their own invective at Justice when formerly they embraced him. The hypocrisy on both sides of this sad event makes you want to take a shower.

Not all politicians lack character.  One thinks immediately of Sen. John McCain on the Republican side and former President Obama on the Democrat side. But if character is the trait of steadfastness to principle when the going gets tough, Jim Justice has failed us miserably. It is hard even to see what he hopes to gain from this switch of party affiliations. Perhaps he expects larger campaign contributions from Republicans than he raked in from the Democrats whom he deceived in 2016. Maybe he wants to bask in the Mar-A-Lago sun. One thing is certain, though. The question of what he has to gain is the right question to ask.