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

/in /by

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

/in , /by

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

/in , /by

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

/in , /by

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

/in , , , /by

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

/in , , /by

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

/in , , /by

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.

Trump’s Advisory Commission on Election Integrity

/in , /by

One thing that rankles President Donald Trump is that he was not the most popular candidate in the 2016 Presidential election. In fact, he lost the popular vote to Hilary Clinton by approximately 3,000,000 votes, 2.1% of the total votes cast for President. Trump’s explanation is that Clinton’s vote total was the result of widespread voter fraud. In a tweet on November 27, 2016, Trump asserted “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.” Although he has produced no evidence of fraudulent voting, Trump has continued to make this claim and threatened an investigation. The truth is that voter fraud is exceedingly rare.

On May 11, 2017, the President issued Executive Order 13799, which created the Presidential Advisory Commission on Election Integrity. The ostensible purpose of this Commission is to study the registration and voting processes used in Federal elections. Vice President Pence chairs the Commission and has appointed as Vice Chair Kansas Secretary of State Kris Kobach. An early supporter of President Trump, Kobach has been a key architect of anti-immigrant policies and voter suppression rules around the country. In one of his first Commission duties, Kobach issued a letter to all state Secretaries of State requesting the production of sensitive voter registration and voting history information.

The letter requested only publicly available information and suggested that the responsive information could be submitted electronically. Here is the specific information requested:

The publicly available voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.

As of this writing 44 states have declined to provide some or all the information requested, often because some of it is deemed unavailable to the public or is not collected by the state. But some states such as California and Virginia refuse to cooperate in any way. West Virginia Secretary of State Mac Warner has not yet responded.

It may be unnecessary for West Virginia to decide how to respond. On July 3, 2017, the Electronic Privacy Information Center (EPIC) filed an Emergency Motion for Temporary Restraining Order in U.S. District Court in the District of Columbia alleging that the Commission had begun collecting and aggregating sensitive personal information of voters without any procedures in place to protect voter privacy or the security of the state voter data. In particular, EPIC alleged that the Commission failed to comply with the Privacy Impact Assessment requirements of the federal E-Government Act of 2002. A hearing on the motion will be held on Friday, July 7.

Assuming that collection of state voter information is not enjoined, what response can we expect from the West Virginia Secretary of State? State law already permits the Secretary of State to sell state voter lists and data files containing some of the information the Commission has requested. WV Code 3-2-30. However, this information may not contain the voter’s telephone number, email address, Social Security number or driver’s license number. In addition, no lists or voter data files may be used for commercial or charitable solicitations, sold or reproduced for resale. The Secretary of State is authorized to share data files across state lines with state or local election officials, but there is no express authority to share data with federal officials.

The Commission’s request for voter data is troubling for a number of reasons. The data will reside in the White House with no legal restriction on how it can be used. It is not clear how the Commission will use it in the first place, because each state collects and stores its information in unique ways making state to state comparisons difficult. There is no structure for ensuring that the information, aggregated for the first time on a national basis, would be secure from hackers. And as the plaintiffs in the EPIC lawsuit argued,

It does not matter that a particular state might disclose its voter data to some other requester under some other circumstances: this requester — the Commission — is barred by law from gathering this data without sufficient constitutional and statutory privacy safeguards.

The safest thing for Secretary of State Warner to do is to respond with questions of his own about how the information will be used and how it will be safeguarded. The Commission has no subpoena power, and Warner should not rush to comply with some artificial deadline before he is certain that our voter information will be safe and properly used. Second, he should not disclose the last four digits of a West Virginia voter’s Social Security number under any circumstances. That is prohibited by state law. Third, if he decides to provide the information he should sell it to the Commission on the same terms as he would sell it to research groups and political parties. State law does not authorize him to release the data for free to anyone. And no doubt there are provisions in the form contract of sale used by the Secretary of State’s office when this type of data is sold that bind the purchaser not to use the data for commercial purposes.

But here is an even better strategy. Responding to requests for voter information from federal officials is not among the statutorily enumerated powers of the Secretary of State. WV Code 3-1A-6. This suggests that the decision whether to provide the information belongs to the Governor, who holds the state’s executive power. Governor Justice should simply direct Warner to decline the request to provide voter information, or respond in that fashion himself. Virginia Governor Terry McAuliffe took this approach, saying “I have no intention of honoring this request. Virginia conducts fair, honest, and democratic elections, and there is no evidence of significant voter fraud in Virginia. . . At best this commission was set up as a pretext to validate Donald Trump’s alternative election facts, and at worst is a tool to commit large-scale voter suppression.”

Those Who Work, Those Who Don’t

/in , , /by

After the 2016 election results we are struggling to understand what hit us. One common view is that Democrats have become tone deaf to the working class, advancing policies that cater to other key constituencies of the party but failing to do much about bettering the economic lives of those in the middle and lower middle. Why, we ask, did Wisconsin, Michigan and Pennsylvania forsake Hillary Clinton in favor of a bombastic outsider who made huge promises, but apparently hasn’t a clue how to govern to deliver on them?

Several thoughtful books can help us find the answer. The best of these is Those Who Work, Those Who Don’t, a sociological study written by Jennifer Sherman in 2009. Sherman sought out a small town in rural America where industry and jobs had been decimated and widespread poverty made the normal social pecking order collapse. This should sound familiar in West Virginia. She wanted to learn what factors provided status and capital in a community where economic distinctions were no longer possible. What she learned is an eye-opener.

Sherman’s town is located in the rural Northern California forest area. She gave it the fictitious name Golden Valley. Golden Valley’s economy was wrecked by the environmental decision to protect the spotted owl at the expense of local industry. All logging activity and most sawmilling in the area ceased and many layoffs occurred. Golden Valley residents viewed this economic devastation as the handiwork of bi-coastal liberals who cared nothing about working class people. But they also recognized that Rebublicans cater to big corporate interests and were not concerned about their plight either.

In Golden Valley nearly everyone was poor. In the absence of economic wealth and distinctions, moral capital was the source of self-esteem and community standing. Those who had moral capital were often able to exchange it for economic capital in the form of job opportunities and assistance from other community members in time of need.

There were two main sources of moral capital. The first was connection to work. Work ethics were highly valued. Those who had a steady full time job were at the top of the hierarchy, followed by those with part time jobs, those on unemployment compensation, and those with a work-related disability. Receiving state or federal benefits because of unemployment or disability was not a negative because these benefits had a connection to past work. Even those who worked to support their families by hunting, cutting wood for fuel or gardening had moral capital from these activities.

Those who did not work, but instead received government welfare assistance, had negative moral capital and lost standing in the community. This effect was felt powerfully by those in that category. Many drove forty miles to the nearest town to use food stamps for fear that they would be recognized by their neighbors. At the bottom were those who were addicted to drugs or abused alcohol, and those who survived through illegal activity. These people were shunned as having no work ethic and were effectively shut out of job opportunities.

The second source of moral capital was “family values.” A person high on the family values scale was usually in a stable marriage, and was a parent or foster parent. But as in most poor communities the traditional family didn’t exist. Children were often raised by grandparents, distant relatives or complete strangers. An individual or couple could gain moral capital if they provided a safe home for any child in the community who needed one. Parents in Golden Valley did not behave as middle class parents frequently do by planning for and becoming involved in the child’s future. Instead parents gained self-esteem and community standing merely by sheltering children in an environment free from abuse that allowed them to develop in their own manner and direction.

What can those interested in regaining the votes of working class people learn from all this?

  • Working class people value hard work, so policies that are designed to provide jobs will be supported by working class voters;
  • working class people are not lazy, do not want public assistance, and will mostly avoid using even well-intentioned benefits that do not somehow recognize recipients as having been connected to the working economy;
  • working class people believe that their moral values of hard work and family are the true American values. Republican rhetoric about morality and values resonates with them;
  • guns, particularly those associated with hunting and providing food, are a strong tradition in rural America and are sometimes essential for family survival; and
  • working class people will reward politicians and political parties that speak to them in a sympathetic, understanding manner and couple this with policies that attempt to deal with the hardships in their lives.

Working class people do not vote against their “interests” when they vote for the Republican agenda, even if that agenda worsens their economic plight. In fact, it is condescending to suggest this. Instead they vote in line with their values. It’s just that Republicans have been more successful addressing those values. But there is nothing inevitable about working class support for the Republican agenda. A progressive agenda that seeks to level the economic playing field through tax reform and job creation can reverse this trend.