Representative Riley Moore: Trump Toady

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The behavior of Rep. Riley Moore has been embarrassing – both to his constituents and to himself. Since being elected to represent West Virginia’s Second Congressional District in November 2024, Moore has not had an original thought. Instead, he has let Donald Trump do his thinking, eagerly supporting every misguided and dangerous policy spun out from the Trump chaos. But Moore will learn a hard lesson.

Trump’s “smash and grab” Administration is fueled by the fiction that he was given an unprecedented and powerful mandate for change by the American people. But his nationwide popular vote margin over Harris was only 1.5%, one of the slimmest margins ever. Trump’s electoral vote margin of 86 votes paled in comparison to Obama’s (365) or Reagan’s (525). Trump is President, not because he won a huge number of new voters but because Harris won 6 million fewer votes than Biden.

The real measure of an election victory is called the Determinative Popular Vote – the minimum number of votes in the right states that would have changed the electoral outcome. Had Harris won Michigan, Wisconsin and Pennsylvania — which Trump won by a total of 230,000 votes — then she would have been the victor. That means that only .0015 of voters nationwide made Trump the winner. So Trump has no mandate whatever. He barely squeaked into the presidency.

Nevertheless, in his first 90 days Trump has acted like a king. He has no legislative agenda, governing instead by Executive Order fiat. He has destroyed USAID and the Department of Education, gutted federal employment, threatened the tax status of universities, bullied law firms, challenged the legitimacy of federal courts, attacked the press and undermined cultural institutions. He has proposed to wreck the international trade order with “reciprocal” tariffs and caused the stock market to tank. He has snatched immigrants from the streets and deported them without due process. All this has resulted in Trump’s approval ratings dropping to the lowest point of any modern President in the first 90 days.

Back to Riley Moore. One wishes he would behave in Congress with some restraint and modesty. After all, he is so new he hardly knows where the men’s room is. Despite this, he has been an enthusiastic cheerleader for all things Trump. This is the sin of failing to look before you leap, because Trump’s outrageous policies will hurt West Virginians and there is bound to be a snapback, even here.

As an example, Moore voted to support the recent House budget resolution, saying

President Trump’s landslide victory was a mandate for change, and with passage of today’s budget resolution, House Republicans are unlocking the process needed to deliver on the America First Agenda.

This is the budget that will pave the way for continuing tax cuts for the wealthy, but only if it cuts Medicaid spending. Medicaid is the joint federal and state program for health insurance and medical services for low-income and working people. Over 500,000 West Virginians, nearly 30% of the state’s population, are supported by Medicaid.

On April 2, 2025, Moore joined President Trump at the White House to celebrate “Liberation Day,” the day when reciprocal tariffs were announced on all countries having trade surpluses with the United States, even small islands populated only by penguins. The formula for these tariffs was so childish and unprofessional that the stock and bond markets promptly tanked, eroding the retirement savings of many West Virginians. Several days later Trump folded like a cocktail napkin and “paused” these tariffs.

But the most shameful thing Moore has done is to fly to El Salvador and pose for gloating photos in front of a cell full of deportees hustled illegally out of the United States to avoid interdiction from a federal court. The Charleston Gazette called Moore’s social media post with jailhouse selfies “dehumanizing and a disgrace to the office he holds and the people he represents.”

In its April 19 issue, the Economist magazine reported that Trump already has a negative approval rating in the six swing states he flipped from Biden. As of April 24, only 44% of Americans approve of his conduct in office. In the 2018 midterm elections during Trump’s first term Republicans lost 42 seats and control of the House. Riley Moore remembers 2018 well. That year in a reaction to Trump’s excesses, voters in Jefferson County turned Moore out of the House of Delegates even though he had been picked to become the new House Majority Leader. What’s past is prologue.

As the Electorate Becomes More Democratic, Republicans Suppress Voting.

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Donald Trump might singlehandedly ensure Democratic victories up and down the ballot in 2024. But the biggest threat to the long-term viability of the Republican Party is not Trump – it is demographics. Each year the electorate becomes more Democratic. Republican strategists know this. Their solution is to suppress voting and hide behind the made-up justification of election integrity. Voters aren’t fooled.

First, the GOP’s demographic problem. Republican voter strength is primarily among older voters – Baby Boomers and the Silent Generation. These are voters born before 1965 and they are aging out. The number of Boomers has declined 10% since 2000. Younger voters in the cohorts Generation X (1965 to 1980) and Millennial (1981 to 1996) vote overwhelmingly Democratic. For example, in 2016 Millennials voted Democratic over Republican by a margin of 24%.

It is not just aging Boomers that are problematic for Republicans, it is also that the electorate is becoming more diverse. African American, Latino, and Asian voters are overwhelmingly Democrats, even though Republicans have recently made inroads with Latinos.

While Republicans are generally strong among white voters, each year the proportion of white voters in America declines. In 2020 Trump lost seven states – Wisconsin, Pennsylvania, Michigan, Virginia, Arizona, Georgia and Nevada — even though he carried the white vote in them.

Republicans have gained strength among white voters without college educations. In fact, turning this group into supporters is the biggest success for Republicans in the last half century. This has not happened because Republicans have offered policies that meet the needs working class Americans. Instead, exit polling and other data show that non-college whites have switched allegiance to the Republican Party because of racial resentment. This switch has taken 40 years, but has accelerated since 2012. It is not pretty, but there you have it.

More recently GOP strategists have responded to adverse demographic changes in the electorate with voter suppression legislation. Measures to make it harder to vote have been introduced in every Republican-controlled state legislature, including our own in West Virginia. Republicans claim these are election integrity measures, but if that were true you would expect them to be responsive to particular integrity problems occurring in those states. But this legislation is not solving real election integrity problems.

The situation in West Virginia perfectly illustrates this. West Virginia does not have election integrity problems. Just ask Mac Warner, our Republican Secretary of State for the last seven years. Warner is now a candidate for Governor. In June 2023 he said, “West Virginia voters can rest assured that our election process is safe, secure, and anchored by the most accurate voter registration lists in the history of our state.” Warner boasted about the integrity of the 2020 election and said West Virginia “has become an election model for the rest of the country.”

Voter impersonation fraud is virtually non-existent in the United States and no cases have been identified in West Virginia. Ignorant of this, the Republican-controlled West Virginia legislature passed a law in 2018 requiring aspiring voters to present specific types of identification to the poll clerk. Strict voter ID laws complicate the voting process, intimidate some potential voters, and reduce the numbers of poor and less-educated voters. These are the people who are less likely to have the required ID. Strict voter ID laws are chasing a problem that doesn’t exist and discourage voter participation as a side effect.

What should be of greater concern to the Legislature than non-existent voter fraud is the abysmal voter turnout numbers in West Virginia. Statewide, only 43% of registered voters cast ballots in the November 2022 mid-term election. Only five of 55 West Virginia counties had turnout over 50%. In 2016, the most recent, non-COVID presidential election year, voter turnout in West Virginia ranked 50th among the 50 states and Washington, D.C. We ranked 48th in 2020. If they cared about democracy, shouldn’t our leaders be advancing policies and legislation that improve these numbers? 

But no. In the 2023 legislative session another assault on voting access was attempted, led by Sen. Patricia Rucker (R-Jefferson). This came in the form of SB 459, a measure with several voter suppression features, including even stricter voter ID measures.

SB 459 would have limited eligibility either to register or vote in West Virginia to “legal” residents of the state. Legal resident was defined as someone who is both actually living in the state (domiciled) and who intends to remain in the state. On its face, this definition would have excluded students who come from out of state and are living here while studying at our colleges and universities, but who intend to return home after graduation.

Why should someone’s future plans disqualify them from voting? Obviously, future plans should have nothing to do with the right to cast a ballot if other requirements are met. Unless, of course, you are more concerned with how they will vote rather than whether they will vote.

Falstaff Runs for Senate

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Jim Justice reminds us of Sir John Falstaff. Falstaff, you will recall, made appearances in several of Shakespeare’s plays. He was a comic character — fat, buffoonish and untrustworthy. In The Merry Wives of Windsor, for example, Falstaff spends most of his time blustering, drinking with petty criminals and being foolish with local women. But there was always something likable about Falstaff.

West Virginia’s own Falstaff has announced he is running for the U.S. Senate. This presents season ticket-holders for the theater of West Virginia politics with a hard choice: is this comedy or tragedy?

Character

Call me old-fashioned, but I still hope the personal character of candidates for office matters to voters. Here are some aspects of character. Doing what you say you will do, without making excuses later about why you didn’t. Having some guiding moral and ethical principles, not just personal gain. Telling the truth, even when to do so is costly. Treating other people with respect, especially those less fortunate than you.

Justice switched political parties from Democrat to Republican at a Trump rally in 2017. A number of Democratic politicians have switched parties recently, especially in heavily red states. This suggests that the move is driven by a desire to be re-elected rather than a true philosophical conversion.

But the timing of Justice’s switch was remarkable. He had just been elected Governor as a Democrat, gladly accepting campaign contributions from supporters who were promised he would actually be a Democrat. A candidate with character would have made the switch in time for voters to assess what it meant for them.

Much has been written about the failure of Justice’s business ventures to pay their bills. In 2019, Forbes magazine called him “the deadbeat billionaire.” This disrespect is totally justified. Justice-owned companies have left a trail of unpaid workmen and contractors, mine reclamation obligations, mine safety fines and tax obligations. A federal judge has just found three companies controlled by the Justice family liable for six years of UMWA pension premiums.

Sure, there are other family members involved in the management of these companies. But a promise is a promise. If Big Jim wanted these promises to be kept, they would have been. That’s what happened when four Eastern Kentucky counties had to sue Justice companies for $2.4 million in back taxes — the bad publicity forced Justice to pay up.

Falstaff as Governor

In a stroke of campaign brilliance during his run for Governor in 2015, Justice’s billboards asked West Virginians this question: “Tired of Being 50th?” This referred to West Virginia’s perpetual dead last rating on measures of social well-being. Hell yes we’re tired of it, and lots of people voted for Justice for that very reason.

Sadly, West Virginia hasn’t changed much since Justice became Governor. Here are our rankings in 2023 on some important metrics: labor force participation (50th), drug overdose mortality rate (50th), average teacher pay (50th), obesity rate (50th), life expectancy at birth (50th), per capita income (49th), infant mortality (47th), availability of broadband internet (44th), teen pregnancy (42nd).

Justice doesn’t get all the blame. While he has been Governor the Republican Party has held a super-majority in the Legislature. They have no political excuse for failing to address these shameful numbers. Instead, they are more interested in protecting gun rights, launching school choice boondoggles that sap public school resources, and telling women what they can’t do with their own bodies.

The U.S. Senate

It is hard to have a more important job in this country than U.S. Senator. Issues of huge importance are decided in the Senate. It is presumed to be the legislative body possessing the mature judgment of the nation. Sometimes, but rarely, it has been the home of buffoons and grifters.

One colorful member of of both the House of Representatives and the Senate in the early republicJim Justice hoists dog's derrière in cheeky response to ... was John Randolph of Roanoke. He was regarded as one of the more brilliant and formidable legislators of his time. Randolph was often accompanied on the House floor by a pack of hunting dogs.

If West Virginia and the nation have an ounce of good fortune left, Jim Justice will not have the opportunity to bring Baby Dog onto the floor of the United States Senate.

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.