West Virginia Secretary of State Disenfranchising Thousands of Obama Voters?

by: Matt Stoller

Mon Apr 28, 2008 at 22:06


I got a call today from Mark Levine, the election protection attorney for Donna Edwards and one in whom I have a good amount of trust, and he told me about a brewing problem in West Virginia which will probably end up disenfranchising thousands of Obama voters.  Here's the nub of the issue.  West Virginia has an open primary, which means you can vote even if you are an independent.  However, if you are a Democrat or a Republican, you are automatically given a normal ballot in a primary.  If you are an independent, you are pointed to a touch screen device which does not list a Presidential choice.

If you are an independent, you have the option of requesting a Democratic or Republican ballot so you can vote in the Presidential primary, but you have to request it.  And unless you know to request it, you will end up with no vote in the Presidential primary.  The Secretary of State has decided not to inform people of this fact, which will leave potentially thousands of voters in West Virginia who came to vote for Obama without a choice.

Independents, in other words, are being disenfranchised.  There's a full press release on the flip.

Matt Stoller :: West Virginia Secretary of State Disenfranchising Thousands of Obama Voters?
Jeff Kisseloff is an author and journalist. His most recent book is "Generation on Fire:  Voices of Protest from the 1960s" (University Press of Kentucky, 2007).

The West Virginia Secretary of State's office and county election offices in the state are refusing to tell independent ("no party choice") voters arriving to early vote at the state's 55 voting locations that they are entitled to vote in the Democratic primary, stating that they are forbidden to do so by law.  

"The Obama campaign will lose thousands of votes during early voting if this situation isn't corrected quickly," Victoria Baker, a former Republican who is an Obama supporter in Huntington, WV, said Sunday.  "The Secretary of State's position is not supported by the law," according to Roy D. (Don) Baker, a West Virginia lawyer familiar with the situation. "It is wrong," he said. Mr. Baker, a Democrat, is also an Obama supporter and Ms. Baker's husband  

156,199 West Virginians are registered as independents eligible to vote in West Virginia's May 13 primary according to figures released over the weekend by the Secretary of State's office.  That represents 13.2% of all registered voters in the state.  These figures include voters who registered before last week's April 22nd registration deadline in the state. Early voting began April 23 and ends May 10.  

Gregory L. Howard, Jr., the lawyer for the Secretary of State's office, said two sections of West Virginia law, Sections 3-1-35 and 3-2-31,1 mandate the office's position.  The crucial provision, he said, is a sentence which says "Political parties, through the official action of their state executive committees, shall be permitted to determine whether unaffiliated voters or voters of other parties shall be allowed to vote that party's primary election ballot upon request."  Howard, a Republican, is a former member of West Virginia's House of Delegates.  

"If those sections are all they have to support their 'Don't tell, don't ask' policy, it's scandalous," Mark L. Levine, a voter protection lawyer from New York investigating the matter, said.

Howard's citation of the department's legal underpinning for the policy was made following the voter protection lawyer's request that the Secretary of State's office require election workers to deliver a slip of paper to each independent coming to vote which says, "If you want to vote in the Presidential Primary and are registered as an Independent ("No Party Choice"), you must ask for either a Republican or Democratic ballot.  "No Party Choice" (Independent) ballots do not include a choice for President."  

Levine also asked that signs with the same message be placed in the area where people come to early vote.  Both requests were denied by Jason Williams, manager of the Elections Division of the Secretary of State's office, and by Howard.  Williams said that this policy had long been in effect and could not be changed.  He referred Levine to Howard for the policy's legal basis.  

Levine made the requests late last week after learning that two West Virginians who wanted to early vote in the Democratic presidential primary voted on touch screens that listed no candidates for president since the two had registered as independents.  West Virginia law permits voters who made no party choice when they registered to vote in the primary of either the Republican or Democratic party.  

Howard said Friday that the two sections from the West Virginia code are the only legal basis for the Secretary of State's office's position and all that is necessary.  Pressed to say what in those two sections supported the office's policy, he said that it was "two words"- the "upon request" at the end of Section 3-2-31(a) (the sentence quoted above).  Howard rejected Levine's contention that nothing in either section supported the office's policy and denied his request that Ireland review the issue and change the office's position.  It is not known whether Howard or Williams have apprised Ireland of that request.  Ireland's 94-year-old mother died on Thursday and was buried Saturday.2

Williams said that the state's election offices had sent mailings to independent voters telling them they must ask for a party ballot if they want to vote in the presidential primary and that they also encouraged reporters to write articles to inform independent voters.  He said those activities are not prohibited by the law but that giving the same information to independent voters at early voting and the polls is prohibited.

Two students at Marshall University (Huntington, WV), Matthew Smith and Tamara Chavies,  voted with independent ballots at the Cabell County Courthouse in Huntington before noon Wednesday morning, the first day of early voting.  Both were surprised when they learned that there was no choice for President on the ballot and that their votes had already been recorded.  Voters in WV vote on touch screens and cannot tell from looking at the screen when they start voting that the presidential candidates are not listed on a subsequent screen.  

"I don't understand how they can penalize you for not knowing how to vote when they don't tell you that you have to ask for a specific ballot," Smith said.  "I'd hate to see my vote not counted because of a technicality."  

The only race on the independent ballot was to elect two members of the Cabell County Board of Education.

Both Smith and Chavies were permitted to cast provisional ballots after they discovered their error.  Each said they voted for Obama on the provisional ballot and were told that their vote might be counted.  Under West Virginia law, provisional ballots are not opened on election night but can be opened and counted during a canvass of votes after May 13 if a county canvassing board determines, based on the circumstances surrounding each provisional ballot, that they should be.3  A provisional ballot cast after a voter has already cast a valid independent ballot will not be counted, voter protection lawyers say.  A senior WV election official, speaking not for attribution, confirmed this.

Betty Ireland, a Republican, is West Virginia's secretary of  state.  She was elected in 2004 and is the first woman ever to be elected to the state's executive branch.4  She announced last July that she was not seeking re-election or running for another office in 2008 because attending to the needs of her aged parents and fulfilling her duties as Secretary of State would not allow her time to plan and run a political campaign in 2008.5  Both her parents are now deceased. Ireland pulled a major upset in 2004 election when she defeated former Secretary of State Ken Hechler and is a likely candidate for higher office.6    

Levine said he had initially been told by a county elections officer on Thursday that the purpose of the policy was to prevent the SOS's office and election workers from "influencing elections."  "Letting a voter know that if he wants to vote for a presidential candidate - of whatever party - is not influencing an election," Levine said.  "It's the duty of the Secretary of State's office to educate voters and encourage voting, not to help disenfranchise people."  

There is no Independent party as such in West Virginia. Voters are considered independents if they do not register for any of the parties listed on the state's registration form (Republican, Democrat, Mountain and "other") or if they check "No Party Choice."7 West Virginia Republicans have long permitted Independents to vote in their primaries.  This is the first year that the Democratic Party has permitted it.


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W Va Issue (4.00 / 1)
Isn't this action similar to California?

Yes, somewhat (4.00 / 2)
In California, independent voters (what we call "Decline To State" voters) are allowed by the Democratic party to vote in their primary, but the GOP does not allow this.

But they have to request a Democratic party ballot in order to do so, which was not generally known. And it wasn't so much that our SoS, Debra Bowen (who I adore) was keeping this information from them... managing the vote is done at the county level in California.

Some progressive activists in California viewed it as something to get active about... to spread the word.  We had some groups, like the Courage Campaign (full disclosure: I do some contract work for them) who took it upon themselves to inform independent  voters about their option to request a ballot for the Democrat primary candidates.  


[ Parent ]
This seems absurd (4.00 / 1)
but I don't understand why your headline and lede focuses on the specific disenfranchisement of Obama voters.  The provision keeps all independents from voting for president, regardless of their candidate of preference.  Nor is it necessarily obvious that in a state like West Virginia more independents would vote for Obama than Clinton.  In fact, I would bet that Obama would do better among indies than Dems in WV but still worse than Clinton among both categories.  

John McCain: Health insurance for low income children represents an "unfunded liability."

perhaps (4.00 / 1)
It's possible indy W. Virginians would go for Clinton.

[ Parent ]
kudos on making this post... (0.00 / 0)
and keeping your support for disenfranchised Democrats neutral and not jumping on the most recent anti-Obama bandwagon.

End this war. Stop John McCain. Cindy McCain is filthy rich.

[ Parent ]
Probable (4.00 / 1)
Obama only won indies in neighboring Ohio 50-48, in a state he lost by ten points.  West Virginia overall is significantly more favorable to Clinton.  I would be surprised if she doesn't win independents.

It might be a good idea to change your headline.  It seems awfully biased.

John McCain: Health insurance for low income children represents an "unfunded liability."


[ Parent ]
Incredible. (0.00 / 0)
The Secretary of State has decided not to inform people of this fact,

I was reading the post and it didn't seem all that outrageous (as an Obama supporter) until I read this line. Not inform people? Who could they even defend that?

Georgia (my state) recently got in trouble for trying to disenfranchise poor voters by requiring a photo ID (which costs money) to vote. Even here the Republicans would never propose not telling people, in fact the State took extraordinary efforts to inform potential voters about the change (before our SC ruled it unconstitutional).

End this war. Stop John McCain. Cindy McCain is filthy rich.


Obama needs to put a volunteer (4.00 / 2)
in front of each polling place.  

New Jersey politics at Blue Jersey.

Good idea, but probably not (legally) possible... (0.00 / 0)
W.Va. has strict laws about election-related activities anywhere close to election locations.

I can't remember the distance, but it's far enough away that on election day no signs or candidate volunteers greet you at the polls.

They call me Clem, Clem Guttata. Come visit wild, wonderful West Virginia Blue


[ Parent ]
obama voters? (0.00 / 1)
Why on earth would you think this is a problem specific to Obama? Aren't you drinking a bit of the kool aid to think that independent voters == obama voters?

Exactly (0.00 / 0)
When I think Matt, I think kool aid.

Former Edwards Supporter, Obama Supporter since January 30, 2008

[ Parent ]
"Disenfranchised" independents (0.00 / 0)
So why exactly should people who have never bothered to register as Democrats have a say in who democrats run as their nominee?  You really lost me on this one.

Would you not allow them to vote in the general electoin? (0.00 / 0)
If so, then why shouldn't they be allowed to participate in the primary process? I agree they shouldn't be able to vote in both primaries but an independent should be allowed to participate in the primary of the party of his choice. Many states have large numbers of independents. Seems silly to exclude them from our party.

End this war. Stop John McCain. Cindy McCain is filthy rich.

[ Parent ]
why? (4.00 / 1)
Because the West Virginia Democratic Party permits it.



New Jersey politics at Blue Jersey.


[ Parent ]
Not sure this really hurts Obama ... (0.00 / 0)
... given the efforts of Rush Limbaugh and others to get their followers to vote Clinton just to mess with the Democrats.

Back when the Republicans had a contested primary, the independent votes were largely going to Obama.  But I'm not sure that this is the case any more.


will hurt Clinton most (0.00 / 0)
I expect that in West Virginia this will cost Clinton more votes than Obama, and slightly cut down her popular vote margin in the state.

This sounds overstated (0.00 / 0)
I'm having a hard time accepting the urgency of this one.  Here in Illinois, for example, each voter must declare their party upon arrival for voting in the primary, and the voter then receives an appropriate ballot based on their declaration.  If said voter doesn't want to declare a party, the voter gets a "non partisan" ballot, which typically has only a couple of non-binding referenda.  Yet there's nothing in the law that stops these people, when they inevitably become upset when they get a look-see at their blank ballot, from coming back to the check-in table to find out what happened.  Once they ask the question, they of course will be given the correct answer.  And there is nothing to stop them from then spoiling their original ballot and their original declaration and making a new declaration to get a partisan ballot with all of the candidates listed.  I realize that not all states have the same procedures, but are we sure that this fairly simple remedy isn't available in WVa?

A Little Analysis (4.00 / 1)
Let's have a quick look at why we have this problem.  It's somewhat similar to what goes on in southern states where voters may leap willy-nilly between party primaries, with Democrats voting for Repiglickins and vice-versa, and so-called "independents" doing whatsoever pleases them.

It's difficult to get some folks to comprehend this, but it's terribly important to note that primaries aren't elections.  Primaries are party nominating processes.  They are the means by which a political party, in an internal process, chooses its slate of nominees for the general election.  Hence, if you are a Repiglickin, you have a vested interest in choosing your nominees for November; likewise with Democrats.  No actual office-holder is chosen in a primary.  That's what the General Election (i.e. the REAL election) in November is for.

Historically, West Virginia has had such a paucity of Repiglickins that in many years they could hold their state convention in a motel room, if not a phone booth.  As such, in order to swell their ranks, the state GOP deigned some several years (decades?) back to allow "independents" to help them choose their nominees in the primary.

The West Virginia Democratic Party is altogether a different story.  Simply put, it's huge by West Virginia standards.  Only because the GOP was allowing "independents" to vote in their primary did the WVDP recently make the arguably mis-guided decision to allow independents a say in choosing our nominee.

The differences between the two parties are fairly clear in philosophy, at least.  On the one hand, the WVRP stands for controlling womens' insides, teaching that the world is slightly younger than the recipe for bread, ignorance in general (their gubernatorial nominee will be a "right-to-life" biblical literalist high-school dropout; no REALLY) allowing our mountains to be blown up for out-of-state corporate profits, pollution in general, declaring how consenting adults may have sex and War (as long as they don't have to fight it), and owning LOTS of guns . . . and bibles.

West Virginia Democrats believe controlling womens' insides (our Governor is a hardcore "pro-fetus" man who annually breaks bread with WV Right to Life), teaching that the world is slightly younger than the recipe for beer, allowing our mountains to be blown up for out-of-state corporate profits, pollution in general, declaring how consenting adults may have sex (Mel Kessler, a Democratic gubernatorial candidate, has supported every anti-gay measure he's seen in the WV House of Delegates, as well as every "pro-life" measure) and War (although upper class WV dems are generally willing to let poor dems fight them) and owning LOTS of guns . . . and bibles.

See?  How could an independent have a hard time choosing which party to belong to?  Why would they even WANT to vote in the primary?  If they just wait till November, they'll get to choose for each state and local office between two corporatist, pollution-supporting, gay-loathing, women-despising, gun-totin', bible-thumpin' candidates nominated by the party membership.

To be clear, no independent is "dis-enfranchised" in the primary.  By virtue of choosing to be "independent," they made a public declaration that they do not WANT to be part of the process of selecting the respective parties' war-loving, pollution-craving, tongue-speaking, floor-rolling, gay-hating, gun-totin', bible-thumpin' Neanderthals for local or state office.

Come to think of it, even though I'm a West Virginia Democrat, I can't say as I blame them.


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