Like many important little cogs in the machinery of state government, the State Election Commission gets little publicity but has significant powers regarding state elections.
It advises the secretary of state and governor on election law policy, signs off on legislative rules pertaining to elections, acts on requests to disqualify candidates on the ballot, acts on applications for publicly financed campaigns, rules on complaints of alleged campaign violations and, perhaps most importantly of late, approves certification of voting systems that counties may purchase with $6.5 million in federal Help America Vote Act money.
While technically a bipartisan commission, for more than two years, the State Election Commission has operated with a Republican supermajority, from August 2018 to Sept. 21.
The five-member panel, made up of the secretary of state and, traditionally, two Democrat and two Republican appointees, has operated with a vacant Democratic seat since August 2018.
The commission had been short a member since 2015, when Robert Rupp, the Republican West Virginia Wesleyan professor, resigned after continuing to serve for four years after his six-year term expired in 2011.
At the time, then-Gov. Earl Ray Tomblin indicated he’d fill the vacancy shortly, but he never got around to it.
In August 2018, Gov. Jim Justice replaced the three sitting commissioners, appointing two Republicans and one Democrat.
It’s unclear why Justice left the fourth commission seat unfilled, but given that this is the most dysfunctional administration of the six I’ve covered, it’s entirely possible nobody bothered to ascertain that the commission has four appointees.
There also have been questions about whether two of the three 2018 Justice appointees were qualified to serve.
State law, quite rationally, prohibits persons who hold public office, are candidates for public office or are members of political party committees from serving on the commission.
Commissioner Matthew Chapman resigned as chairman of the Ohio County Republican Executive Committee shortly before his appointment, which while it may not violate the letter of the law certainly bends the spirit of it.
Likewise, Justice’s other 2018 appointee, Nate Tawney, is general counsel for the state Department of Transportation. State law prohibits state employees from holding public office.
So is the State Election Commission a public office?
In an attorney general’s opinion issued in June 2018 – about the time Justice was making the commission appointments, Patrick Morrisey advised then-Transportation Secretary Tom Smith that a Division of Highways employee could not serve on the Public Employees Insurance Agency Finance Board while employed by the state.
Morrisey cited a state Supreme Court decision concluding that members of the state Board of Education “or any other state board clearly” hold public office.
Meanwhile, after nearly two years of operating with a Republican supermajority, at some point this summer, the Justice administration discovered its errors, removing Tawney from the election commission, and appointing Maryclaire Akers, a Kanawha County assistant prosecutor, to fill one vacancy and then, on Sept. 21, appointing Benjamin Sullivan, an executive vice president and general counsel of Diversified Oil and Gas of Charleston.
While the law establishing the State Election Commission states that no more than two appointees may be of the same political party, as noted, in the spirit of bipartisanism, the commission historically has consisted of two Democrats and two Republicans.
Sullivan, however, is a registered independent.
It’s probably indicative of today’s current hyper-partisan atmosphere that Justice chose, and continues to choose, to stack the State Election Commission, going from three Republicans and one Democrat to three Republicans, one conservative independent and one Democrat.
n n n
For someone who has no qualms about exercising power unilaterally for months on end, it’s remarkable how powerless the office of governor becomes when Justice is confronted with a controversial issue or a matter he doesn’t want to deal with.
In Justice’s parlance, it’s “above his pay grade,” as if there are positions above governor in the executive branch hierarchy.
As pressure has grown to remove the Stonewall Jackson statue and bust from the Capitol grounds and rotunda, Justice has repeatedly insisted that only the Legislature has authority to make changes to statuary on the grounds. (You know the Legislature, that group of people that’s too trifling and insignificant to call into session to appropriate federal CARES Act money.)
The agency that actually has the authority to make changes to statuary, the Capitol Building Commission, was scheduled to meet this week, although requests to put the Jackson statue on the agenda appeared to be getting, pardon the expression, stonewalled.
As one requestor, James Cochran, relayed: “Randall (Department of Arts, Culture and History curator Randall Reid-Smith) says the only way he will put the statue on the agenda for the October meeting of the commission is at the governor’s request.”
The scheduled Oct. 14 meeting of the commission has been postponed to Nov. 18 “due to scheduling conflicts.”
n n n
Quote of the week: “Isn’t it awfully coincidental that it’s done three or four weeks before an election? I mean, it’s political and it surely smells of politics.” — Justice, decrying the West Virginia Education Association’s filing for an injunction to require the state to follow the actual Harvard Global risk map, not the state’s hyper-tweaked version.
Shortly after, Justice went to Nitro to announce his questionable use of road bond money to repave the main highway into the city, a project already previously announced by the Division of Highways.
Many state Republican candidates have to varying extents tied their election hopes to Donald Trump’s coattails.
In 2016, those coattails were quite long, as Trump carried the state over Hillary Clinton, 68.5% to 26.4%.
A poll released last week by Triton Polling and Research for WMOV radio (partially owned by fellow Dadisman Hall 1977-78 resident Tom Susman) has Trump leading Joe Biden, 56.5% to 38.6%.
Surely, that’s not yet a nail-biter, but it is a sharp swing from 2016. Importantly, the poll of likely voters was conducted Sept. 29-30 — predating Trump’s debate debacle, the Rose Garden super-spreader event and the White House outbreak, including Trump and the first lady.
Since then, Trump’s numbers have cratered, with Biden opening up double-digit leads in many national polls.
Early voting in swing states is hitting unprecedented levels, and the clear majority of those early voters have been registered Democrats.
Locally, we see and hear anecdotal evidence that enthusiasm for Trump is tempered, compared to 2016. People are seeing fewer yard signs, and we’ve heard accounts of supporters taking down signs after the debate and news of Trump’s illness.
I suspect that when Trump and his staff came down with COVID-19, it was a crashing blow for supporters’ enthusiasm.
Not only was Trump unable to protect America from the virus, he could protect neither himself nor his aides.
Trump and his staff flouted COVID-19 protocols. Senate Majority Leader Mitch McConnell admitted he has not visited the White House in two months because of lax safety measures.
(Can’t say the same for Morrisey, who participated in a White House roundtable of Republican state attorneys general Sept. 23, a meeting which primarily served as a photo-op for Trump to rant against social media outlets for removing or tagging posts that make false or unsubstantiated claims, including some of his Twitter posts.)
Trump could have used his infection to show empathy with other COVID-19 victims and redoubled decidedly underwhelming White House efforts to control the spread of the virus.
Instead, Trump being Trump, he declared himself “cured” and told America not to fear the virus — cold comfort to the families of the 212,000 Americans who have died of COVID-19 and to the thousands more who have been or are hospitalized with the virus.
Trump is all but certain to carry West Virginia regardless, but if national polling continues to show a high likelihood that he is going to lose the general election, it will be interesting to see whether that supresses turnout among his Mountain State supporters, which could have implications for down-ballot races.
n n n
Finally, our ongoing “scanning” of Justice’s CARES Act Small Business Grants has taken us on quite a journey around the state, from video slot machine hot spots to tattoo parlors, vape shops, practically every bar, restaurant, barber shop and hair salon in the state, a nudist resort and a strip club.
As the invoices wind down, one of the more interesting submitted of late was a $2,000 grant awarded not to a company name or a DBA, but simply a phone number: 1-800-621-6427.
According to the Google machine, that number belongs to Acme Controls in Chicago. The state auditor’s office lists the request for payment as “returned to agency.”