Roe v. Wade and the future of abortions

In 1973, the United States Supreme Court ruled in Roe v. Wade that women held a right to an abortion through the first two trimesters of a pregnancy with virtually no interference from the state.  They added that in the third trimester, a state did have a compelling interest in preventing abortions due to the fact that a fetus became ‘viable.’  The Court held that after the second trimester, a fetus could live outside the mother’s women, and the state could create legislation protecting that child should it choose to do so.  

Since the Roe case, conservatives have fought to establish laws and even Constitutional amendments to mitigate this ruling.  Conservatives now have their best opportunity in decades to limit legalized abortion in the United States.  In 2018, Mississippi passed a law which banned abortions after 15 weeks into a pregnancy.  That law immediately elicited a legal challenge the Supreme Court is debating in Dobbs v. Jackson Women’s Health Organization.

About Roe v. Wade …

The Roe case is far more complicated than most people want to admit (from the left or right).  In this case, Norma McCorvey (given the pseudonym ‘Jane Roe’) sought to have an abortion in Texas.  McCorvey, who only recently passed away, was recruited by pro-choice advocates as a candidate to challenge Texas’ state law banning abortion.  

McCorvey was pregnant for the third time at the age of 21 and sought an abortion, but lacked the financial means to travel to any nearby states which permitted it.  In the midst of a prolonged legal struggle, McCorvey gave birth to her child and put up her baby for adoption.  (Note:  for over half a century, the identity of the ‘Roe baby’ went unknown.  Check out an interesting article from The Atlantic detailing the life of Shelley Lynn Thornton and her well-known mother.)  McCorvey often waffled back and forth on her position on abortion, and her stories are inconsistent, but the facts of the case and the Supreme Court’s ruling are less so.

In Roe, McCorvey’s attorneys argued that the Due Process Clause of the 14th Amendment gave a woman the right to choose whether or not to have children as a choice of bodily autonomy.  The Due Process Clause reads,

” … nor shall any state deprive any person of life, liberty, or property without due process of law.

– 14th Amendment, The Due Process Clause

The argument presented to the Court contended that the word ‘liberty’ should be construed to allow women the freedom to terminate their pregnancy should they so choose.  They bolstered their argument with the concept that women maintained a right to privacy established in Griswold v. Connecticut.  

In essence, if the state of Texas blocked a woman’s ‘liberty’ to an abortion, then it did so without providing due process of law.  In this instance, ‘due process’ refers to the state’s violation of rights in an arbitrary nature.  States can create laws banning certain behaviors if strong enough reasons exist, and their burden for what qualifies as a good reason increases when they attempt to restrict fundamental rights.

Texas asserted that its interest in protecting human life allowed its restriction on abortions — for the mother and the child.  In this regard, the Court agreed that the state did have an interest in protecting life.  Yet, the Court also maintained restrictions on abortion would impact the life of a woman.  

The Court established more of a balancing act than advocates of either side in the abortion debate  are willing to cede.  The idea that a woman possessed a right to terminate her pregnancy at any time was not part of the ruling in Roe, nor was the notion that a state’s interest proscribed abortion in all instances.  

Norma McCorvey, also known as ‘Jane Roe’

The decision ultimately rests with the notion of a state having a compelling interest to restrict a woman’s choice.  The Court delineated circumstances about which a state may restrict an abortion.  Essentially, during the first trimester of a pregnancy, the decision about abortion lies with a woman and her physician.  The only restrictions a state could implement during this time must be reasonably related to the health of the mother.  The Court also concluded that as a pregnancy progressed, so did the interest of the state.  Once a fetus became viable (meaning the child could live outside the mother’s womb — approximately 24-26 weeks), the state possessed a much stronger interest in protecting human life, which permitted stronger restrictions on an abortion.  With respect to Texas’ law, it was considered far too rigid and inflexible for the criteria established by the Court (as did many other state laws at the time).

States changed their laws on abortion to meet the standards established in Roe.  States which are generally more liberal established legislation which is far more permissive to a woman’s ability to choose, making abortions more accessible, even into the latter stages of a pregnancy.  In the more conservative states, the legislation focused on establishing strict protocols about the physicians who could perform abortions and the standards for medical facilities which perform abortions.  (Many states only have one clinic which performs abortions.)

So, what’s changed between Roe and now?

In 1992, the Court heard another case involving abortion with Planned Parenthood v. Casey.  In that case, Pennsylvania placed restrictions on abortion within their state that some believed too burdensome on a woman’s right to choose.  The Court upheld the notion that a woman held the right to choose to end her pregnancy, but overturned the trimester framework established in Roe.  The Court favored determining fetus viability (at any point) as the demarcation for the point at which the state could have an interest in blocking an abortion.  The Court also maintained that some restrictions implemented by the state did not impose an undue burden on a woman’s right to choose.  For instance, Pennsylvania required a 24 hour waiting period before the abortion was to take place, with a doctor providing information about the procedure and its effect on the health of the woman.  According to the Court, this did not truly prevent a woman from obtaining an abortion.  Since the ruling in Casey, conservative states added more restrictions on abortion, which furthered the divide about abortion policy from one state to the next.

Thecomposition of the Supreme Court’s membership may represent the most significant change from 1973 and now.  Former President Donald Trump greatly influenced the current makeup of the Court, nominating three justices in one term.  The current ideological makeup of the Court has six conservatives and three liberal judges.  While this is no guarantee of any particular outcome, it definitely looms in the minds of both liberals and conservatives.  The lineup of justices in 1973 was more difficult to read, particularly when some of the conservative justices voted with Roe in that 7-2 decision (including a trio of Nixon appointees).  

A wave of conservative justices on the Court prompted states to force a legal battle by passing a number of bills which purposely violated criteria established in Roe and Casey.  Conservative states wanted these bills challenged in the judicial system to force a Supreme Court showdown on the issue of abortion.  Their belief is that the current mood on the Court will favor them in overturning prior decisions.

Will Justice Barrett surprise everyone with her vote?

In 2018, Mississippi passed a law which banned abortions after 15 weeks, with no allowances for cases of rape or incest.  The Jackson Women’s Health Organization, the only clinic in the state to perform abortions, immediately brought a challenge in federal district court.  The state’s law was struck down by the district court, and again on appeal in the Fifth Circuit Court of Appeals.  Mississippi then appealed to the Supreme Court. 

On December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, and it was interesting, to say the least.  The attorneys arguing for Mississippi argued primarily that because the Constitution does not specifically address the issue of abortion, each state should be free to establish its own policies pertaining to the subject.  Additionally, a right to an abortion does not exist because it is not specifically listed as a right in the Constitution, but as an abstraction erroneously created by the Supreme Court in Roe.

Counsel for the state of Mississippi also argued that people want to make decisions about abortion policies locally, to best suit their region.  They asked the Court to eliminate the ‘viability’ line used to determine if a state has an interest in preventing an abortion.

The attorneys for Jackson Women’s Health summed up their argument in three succinct points.  First, the legal principle of stare decisis is too great of a burden to overcome.  Second, the Court in Roe and Casey ruled correctly in both instances.  Finally, they contended that a change to a abortion policy would “propel women backwards.”  

Who’s going to win this case?

In this case, Mississippi is fighting from a position of weakness.  It possesses a significant burden in persuading the Court to overturn an established precedent.   The Court has long held to the principle of stare decisis (“let the decision stand”), which means current decisions are largely considered in the light of previous cases on the same issue.  They utilize this to maintain a consistency in the interpretation of rights and do not deviate lightly.

In the oral arguments before the Court, the justices addressed the issue of how overturning Roe without compelling reason would damage its integrity as an institution.  Part of the Court’s history includes the fact that it is not political.  Justice Sotomayor noted, 

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”  

– Justice Sonia Sotomayor

The public must understand that the Court will make the correct decision based on law, rather than what political leanings its current members have.  To rule without a heavy reliance on precedent would leave the nation in a precarious situation where the Court’s rulings would constantly flip-flop in what is or is not Constitutional.  

While conservatives might see the current ideological makeup of the Court as an advantage, the Court sees it differently.  Institutional integrity means more to the members than ideology.  This isn’t the first time anti-abortion advocates believed they had the votes to overturn Roe.  In Casey, conservatives believed the decision would fall their way.  Justice Sandra Day O’Connor, appointed by President Ronald Reagan, voted to reaffirm the decision in Roe.  She was the deciding vote in a 5-4 decision.

The latest appointees to the Court, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, have voted against former President Trump’s conservative wishes in a number of instances so far.  One of the significant aspects about the justices is that once they receive membership on the Court, they may act with judicial independence.  They owe the president no allegiance.  

While the Court adheres to the principle of stare decisis, it has overturned some of its previous decisions.  For instance, in Brown v. Board of Education (1954), the Court overturned the doctrine of ‘separate but equal’ in terms of racial segregation.  

So, how does the Court know when to overturn cases?  Criteria for overturning precedent generally is fluid, but most legal experts agree on a few things:  workability, quality of reasoning, and a changed understanding of the relevant facts.

Workability refers to if the standing case set a precedent which practically wasn’t applicable for lower courts to apply.  The Court also considers the quality of reasoning from the prior case.  Did the Supreme Court err in its logic?  Finally, our understanding of facts sometimes changes.  Apply this concept in particular to the Brown case.  American society’s thoughts on racial segregation were not the same in 1954 as the precedent, which was established in 1897.  

The standards set in Roe and Casey do not appear to create an unworkable standard, regardless of one’s position on abortion.  Over 50 years have passed since the decision in Roe and courts have no problems in adjudicating the guidelines about what does or does not constitute violations of the decision.  The understanding of the facts has not changed in any way that would cause the Court to move too far from their position.  The only change in this regard might be what is a viable fetus.  In this regard, the understanding of ‘viability’ may change, but not the ruling in Casey

Can we look at the decisions in Roe and Casey and claim that the logic was flawed?  Counsel for the state of Mississippi believed so, but they focused primarily on the argument that because abortion isn’t mentioned in the Constitution, states should be free to create their own policies pertaining to the matter (via the 10th Amendment).  

The state largely ignored, however, the concept that ‘liberty’ in the 14th Amendment established the right to choose to terminate a pregnancy.  If that right is recognized by the Court, then states are obligated to permit that action.    

The final verdict 

There isn’t enough presented by the oral argument to convince justices that the logic was flawed.  Mississippi’s lead attorney objected to the logic of Roe as abstract and not grounded in history or tradition.  This ignores a number of legal traditions which are abstract, not written down but are accepted nonetheless.  The very concept of judicial review isn’t written down, but widely accepted.  This is true of a number of other legal rights which are implied, though not listed.

I believe the standard of overturning precedent is so difficult to overcome, that the pro-choice side of this argument would struggle if Roe had been decided differently.  I don’t believe the Court will overturn precedent.  It isn’t that the anti-abortion crowd doesn’t have some compelling points about the matter, but the burden, in this instance, is almost insurmountable.   

Even with the Court opting not to give Mississippi carte blanche to dictate its own abortion policy, I do believe the Court will augment its standard for the state’s interest in some capacity.  The understanding of viability in the medical community has changed since 1973, where it now believes the time frame to be 22 weeks (as opposed to 24-26 weeks originally).   

Regardless of political leanings, I believe the Court might surprise people with a ruling that uphold precedent, not because they believe abortion is the correct policy, but because they care about the institution of the Court.  Deviating on abortion now creates an even more dangerous precedent — turning the Supreme Court into a partisan political institution. 

If the Court travels down the path of political expediency rather than adherence to judicial standards, it sets the stage for constant changes in policy with the political beliefs of the justices deciding serious issues.  Trained monkeys could do that.  Much like so many of our governmental institutions, the Court’s reputation and legacy is on the line, and they aren’t about to trade it away.

Would I like to see the abortion policies of the nation change?  Without question.  Yet, I think what we will see in the near future is a need to change abortion policy through political means rather than judicial.  I believe this will include creating policies in state legislatures which will permit widespread use of contraception and better policies on sex education.  This will also include establishing valuable policies about who can perform abortions and the conditions under which they can be performed.  It should also include programs which will assist mothers who lack the financial means to raise a child.

People might ask me why I don’t believe a judicial solution is the way to go if I do not approve of abortions.  My answer is simple.  Even if the anti-abortion crowd wins this case (and there’s still a good chance of that), it won’t end legal abortions in the country.  It will only mean states are free to shape their own policies on abortion.  More liberal states like New York and California will still allow legal abortions.  Conservative states won’t allow it, and for places like Mississippi, it’s not much of a change at all.

Using political means, the power of non-profits, and religious organizations might also be useful in reducing the number of abortions.  Provide assistance and encouragement to women who are thinking about having an abortion.  There are plenty of terrible arguments for and against abortions, but the notion that pregnant women must bear personal responsibility for their actions will no longer pass the standard.  

Chief Justice Roberts is known for his dedication to the institution

The justices, in this case, will have individuals on both sides.  Justices Thomas and Alito are assuredly in the anti-abortion camp.  Newer members, Justices Gorsuch and Kavanaugh lean that well as well.  Justices Breyer, Sotomayor and Kagan will land on the pro-choice side.

The two judges I believe to be wildcards are Chief Justice John Roberts and the newest appointee, Amy Coney Barrett.  Roberts is no fan of abortion, but he has demonstrated on many occasions, that his tenure as Chief Justice will be one which carefully protects the institution of the Supreme Court.  His principles come before his politics.  Upholding precedent matters to him.

Barrett represents another interesting position because she’s had a mixed history as a lower court federal judge in dealing with abortion cases.  During her Senate confirmation hearings, she also dodged questions about the matter, and her answer was fairly true — she often commented that she couldn’t explain positions on hypothetical situations.  She could only deal with actual controversies with a set of facts in front of her.  While it can be seen as carefully avoiding the issue, it’s also something that we would want a judge to actually do.  

The outcome of the cases is unlikely to please liberals or conservatives, regardless of the Court’s decision.  Legal abortions are going to continue, but likely not under the same standards.

Political ‘Infrastructure’ and the future of West Virginia Politics

With all the discussion of physical infrastructure in the last six months, the possibility exist that we have forgotten about a more important type of infrastructure in society.  The political institutions which comprise key aspects of a democracy arguably constitute a more important ‘political’ infrastructure in our society.  In the last decade, the West Virginia Republican Party has significantly altered these institutions, which tilt elections in their favor for the immediate future.

Democrats once held great sway in West Virginia, but since 2000, the state dramatically turned red.  Some of the reasons relate to the focus on political issues.  The Bush administration started a trend of focusing on political issues leaning more towards the social policies rather than economic policies.  Most residents in West Virginia hold anti-abortion views and the GOP capitalizes on this in every single election.  And that’s part of the game, so to speak.  Candidates and their parties have the responsibility of framing the issues in a way which appeals to voters and then help turn out those voters.  However, the systems and means by which we elect our representatives are changing in ways which unfairly help Republicans.

So what are examples of these changes in political infrastructure?

1. Most people overlook the elected position in West Virginia of Secretary of State.  This individual bears the primary responsibility of ensuring free and fair elections for the entire state.  The Secretary of State possesses wide latitude in determining how counties conduct elections and tabulate votes.

While we often overlook the this position, the entire nation should understand the importance of the position after the mess with Georgia’s Secretary of State in the 2020 Election, where he refused to overturn the results of the state’s presidential returns.  In West Virginia, current Secretary of State Mac Warner raised eyebrows after his election in 2016 by firing 16 employees in the Office of Secretary of State almost immediately.  As it happened, most of the 16 employees were Democrats.  Warner hired 23 individuals, and almost all were Republicans.  Regardless of the level of employees’ competency, the optics were bad.  

Firing a group of people and then replacing them with members of one political party provides the Republican Party with their people on the inside of key government positions on how to handle election policy.  Moreover, those 16 people who lost their jobs?  They filed lawsuits for wrongful termination and settled with the state.  The payouts totaled over $3.2 million of your tax dollars.  Small price to pay for controlling the gears of elections.

2. The state legislature also contributes to the development of Republican political infrastructure.  One of their more recent changes involves the creation of an intermediate court system.  Prior to this change, any civil or criminal complaint would originate in the appropriate circuit court and any potential appeal moved directly to the West Virginia State Supreme Court.  The intermediate court of three judges adds another layer to the legal system, which benefits those who fall into the Republican camp.  Adding another court to West Virginia makes it more difficult for individuals with less financial resources to pursue a claim or an appeal in courts.  This, in sheer percentages, would likely benefit Republicans more than Democrats.  The new law, which maintains that these judges on the court will be elected in the future, allows for the governor to appoint the first round of judges on staggered terms.  Governor Jim Justice, of course, is a Republican.  

3. Last year, the State Senate passed SB 565, which would have altered elections in some concerning ways.  Current election law in West Virginia allows for early voting in person to occur from the 13th day prior to the election to the 3rd day prior to the election.  This law would have changed that early voting period to the 17th day prior to the election to the 7th.  What’s the rationale for this type of change? 

More concerning about SB 565 was the provision which would have allowed for purging voter registration rolls if a voter did not vote in the previous election.  This would allow the Secretary of State more control over elections and the right to vote.  If a voter sat out a single election, the Secretary of State could remove their name from the voting pool.  The Republican Party would control a significant piece of the infrastructure in elections.  

Ultimately, SB 565 did not pass through the House of Delegates before the 2021 session ended.  Yet, as with most legislation, it stands to reason that the bill’s sponsors will pick this up again in the 2022 session.  

4. Republicans currently hold a supermajority in both houses of the legislature, and this means they can pass virtually any piece of legislation they deem necessary.  Democrats can do little to push back.  One of the perks of having a majority at this particular moment is that the GOP controlled the redistricting process for the senate and the House of Delegates.  Republicans instituted some rather significant changes in this area which create more favorable circumstances for their candidates.

The most noteworthy change to the system stemmed from the decision to move from multi-member districts to single member districts in the House of Delegates.  Previously, the multi-member districts played an important role in helping to maintain representation of an area proportional to the community at large.  For instance, in the old system, I lived in House District 16, which had three seats.  A voter could choose up to three people to represent the district, allowing for a range of representation.  In the Election of 2020, House 16 had two Republicans and one Democrat.  Two of the three are white and the third is black.   

Multi-member districts also have a natural immunity to gerrymandering (redrawing district lines to help or hurt a candidate or group).  It becomes more difficult to fudge with the districts if less of them exist.  The old system had 67 districts, and the new one will have 100.  That’s 50% more districts to draw in a way that would benefit particular people, groups, or parties.

Questions quickly popped up over a change to a district affecting incumbent Caleb Hanna (R-44), whose new district would have included part of Pocahontas County.  Delegates requested the change because of a white supremacist group which lives isolated in Pocahontas County (Delegate Hanna is African-American).  The white supremacist group in said county is largely defunct and would likely have no impact on any election.  Critics also pointed out that the Republicans only wished to protect racial minorities if they were of the same party.

Republicans also redrew the districts into a fashion whereby many Democratic incumbents would face one another in an election, whereas few Republicans would face such primary contests.  

If you look at the new districts, some of the shapes appear bizarre enough to suggest gerrymandering.  The accompanying demographic data also presents some curious numbers on race.  Not one of the 100 districts contains less than a 74% white grouping.  Ironically, one of the districts which has the largest non-white percentage is home to Delegate Sean Hornbuckle (D-16), a candidate so widely popular in the Huntington area, he would probably win regardless of the racial makeup. 

There are only a few of the major areas in the state where I have a deep level of familiarity, and two of those are Huntington and Charleston.  If Republicans had a commitment to protecting racial minorities, I can assure you that the committee on redistricting could have drawn a better map for the Huntington and Charleston areas.

Why does this stuff matter?  

The most significant right any citizen has in a democracy is the right to vote.  Without that unobstructed right, the people are at the mercy of those in power.  The political infrastructure which is being altered in West Virginia is worth examining:

  • The Secretary of State’s mismanagement of a system which includes his stacking his office with political allies.
  • Creating an additional layer of courts which can only benefit those with financial resources, imbued with Republican appointed judges for the foreseeable future 
  • Attempting to alter voting rights legislation 
  • Abandoning multi-member districts 
  • Gerrymandering districts to benefit one party and certain people 

This leads to a state dominated by a single party and no true representation of the people.  The move from blue to red in the last two decades finally saw Republicans surpass Democrats in number of registered voters, with 36.8% and 36.5% respectively.  Surprisingly, 22.6% of voters in West Virginia hold no party affiliation.  These percentages definitely aren’t indicative of the government the state has.

The state has also witnessed a few politicians make a flip in party affiliation.  We are all aware of Jim Justice’s transition from Democrat to Republican, but others have seen the light, as it were.  

In 2014, Daniel Hall flipped to the Republican Party when the State Senate held a 17-17 balance, giving the GOP a majority.  At the time, he noted, “Political climates change, and I made a decision today to keep Raleigh, Wyoming and Mcdowell [sic] counties at the table in the West Virginia Senate. I have always picked our people over party…and did today as well. This decision will upset some, but had to be made for our district to be relevant.”  

This past summer, Delegate Mick Bates switched to the majority party, giving the Republicans a 78-22 advantage in the House.  Bates wrote in a statement explaining his move, “At a national level, the controlling interests and leadership of the Democratic party continue to pursue positions that alienate and anger voters in rural parts of the country and don’t reflect the priorities, values or beliefs of the people in West Virginia.”  That’s a coded message explaining that his district voted heavily for Donald Trump, and he sees the proverbial writing on the wall. 

Last week, another relevant switch occurred when former Delegate Doug Reynolds announced he was leaving the Democratic Party for the GOP.  The news seems relevant because it has to precede some type of announcement for another run at office.  Reynolds is not at all someone who could be described as conservative, but after losing the 2016 Election for Attorney General to Patrick Morrissey, he, too, must have seen which way the winds are blowing.

Reynolds’ party switch is more concerning than others because he founded and runs HD Media, which owns a number of newspapers in Southern West Virginia, including the Huntington Herald-Dispatch, and the state’s largest newspaper, the Charleston Gazette-Mail.  These important institutional mechanisms for conveying key information, endorsements, and other political news have largely been fairly liberal in the past.  Does that change in the future?

One thing is for certain.  The Republican Party has effectively laid the groundwork for political domination of state politics for some time to come.  A one-party state benefits no one.

Dave Chappelle, the LGBT community, and comedy

Dave Chappelle is considered by many to be the funniest man alive.  But a significant segment of society isn’t laughing these days.  Chappelle is no stranger to controversy but he saved his strongest words for the final of a in a Netflix series, aptly named The Closer.  The controversy stems from his jokes about transgender men and women, a portion of the population Americans seem hyper-focused on lately.  

Why all the sensitivity?

One of the most significant reasons that critics of Chappelle are upset is due to the vulnerability of transgender citizens.  Men and women who identify as transgender are four times more likely to be victims of violence when compared to other Americans.  The suicide attempt rates for transgendered people worldwide range from 32%-50%, often before they reach the age of 21.  This doesn’t even account for the rates of depression among the transgender community, which is four to five times higher than rates typical people experience.  

Regardless of how a person views the issue of gender, there is undoubtedly a problem which needs help.  In some capacity, every person has ridiculed or mocked a group that seemed so contrary to the rest of society.  It seems strange that a man would genuinely believe he is a woman and would take on those attributes (or for a woman to take on that of a man).  On the surface, it’s an easy joke to make because humans always make fun of that which we do not understand or isn’t the norm.  Chappelle’s jokes have often pointed towards the odd nature of transgender men and women.  However, the best moment in The Closer demonstrated a valuable lesson for everyone.

Chappelle was recounting his friendship with a transgender comedian, Daphne Dorman, and during Chappelle’s routine, there was banter from on stage with Dorman who was in the audience.  Chappelle was laughing and spoke about how he appreciated Dorman, but he didn’t understand.  Dorman somewhat drunkenly replied that Chappelle didn’t need to understand, but only recognize Dorman was having some type of human experience.  

We don’t need to understand what transgendered people are going through to acknowledge their humanity and the difficulty of what it must be like to genuinely believe you are the wrong sex.  I think that would cause quite a bit of emotional trauma for any person.  One need not use the preferred pronouns of a person, donate to the LGBT movement, or wave any type of flag to recognize people are struggling.  Every person deserves a measure of dignity because they are a human being. 

I’ve never been a fan of identity politics, but I must also confess that society built the identity politics of marginalized groups such as the LGBT community.  Mainstream Americans spent decades telling the LGBT community that they were less than human.  Consider how many pejoratives exist for homosexuals or transgender men and women.   This provides a sense of how we have demeaned them as individuals.  If we, as a society, spent years calling people names and making fun of them, can we become upset when they lean into the identity and make sexuality the core of their political belief or who they are as a person?  

Dave Chappelle is a comedy genius 

Most followers of Dave Chapelle first learned about him from Chappelle’s Show, a sketch comedy series which aired on Comedy Central in 2003-2004.   Some of the sketches from this show are among the funniest I’ve ever seen and many of them still resonate with viewers nearly 20 years later.  In two brief seasons, Chappelle not only created some memorable sketches and characters, but he incorporated a gaudy list of celebrity guest stars, including Snoop Dogg, the Wu Tang Clan, John Mayer, Wayne Brady, and Rick James (no one can forget him).  

After those two phenomenal seasons, Chappelle walked away from Comedy Central and a $50 million contract.  It wasn’t until circa 2013 when Chappelle went back to working stand-up comedy full time.  Chappelle’s most recent endeavor includes filming a number of his stand-up comedy routines as Netflix specials.   

One of the most enduring aspects about Dave Chappelle’s work is that he has developed his craft.  Chappelle’s Show wasn’t exactly lowbrow humor, but it wasn’t the highest form of the art, either.  The recent Netflix specials from Chappelle have demonstrated a change to a humor I tend to appreciate more — observational comedy.  He looks at the situations in the world and notices ironies or quirks we either overlook or aren’t bold enough to mention.

After releasing Sticks & Stones, Netflix and Chappelle received a large amount of negative feedback because he made fun of the transgender community.  This didn’t deter Chappelle because everyone knows that the one thing you never tell a comedian is not to joke about that topic.  It only fuels them to do it more.  

Everyone loves a good joke as long as it doesn’t make fun of their ‘tribe.’  And this is where the identity issue of the LGBT community will make Chappelle’s humor problematic.  He’s making fun of their identity and it doesn’t matter if his observations are right or wrong.  Once your group becomes the latest punchline for Chappelle, well, all of a sudden, it’s not funny anymore.  It’s no different for racial groups or religious groups or political groups.  And the gag is that Chappelle makes fun of everyone.  No one is off limits for him and the moment your group believes they should be, Chappelle will put them in the crosshairs.  I don’t believe Chappelle is singling out the transgender community because he wants to shame them for being transgender.  He wants to shame them for thinking they’re above being the subject of a joke.

If Chappelle and other comedians stopped making jokes about various groups because of their vulnerability in the world, or because their feelings were hurt, they would have to find other jobs.  Didn’t like those jokes about the transgender community?  Well, folks are going to have quite a bit to be upset about.  Chappelle makes fun of white people, black people, Asians, Jews, heroin addicts, domestic abuse victims — and don’t forget the Michael Jackson and R. Kelly jokes.  

People who are angry with Chappelle are upset because he’s right about many of his observations about our society.  For instance, Chappelle brought up rapper DaBaby, whose career took a substantial hit after he made homophobic comments at one of his concerts.  DaBaby was quickly dropped from several concert lineups and widely condemned on social media.  Chappelle brought up the fact that DaBaby shot and killed a 19 year old in a Walmart a few years ago and that wasn’t enough to derail his career but some hurtful comments towards the LGBT community at a concert stopped everything for this man’s career?   Chappelle is trying to point out the irony involved about what makes up stop supporting an artist’s career.  

Chappelle also joked about how the LGBT crowd turned on J.K. Rowling, author of the widely popular Harry Potter series.  Last year, Rowling made several tweets regarding her thoughts on gender, including the notion that hormones given to children who identify as transgender is dangerous and similar to the overprescription of mental health medication. She might not have expressed any views about the matter but people on the left lost their collective minds when Rowling ‘liked’ a tweet that transgender activists questioned.  

The backlash against Rowling was swift and fierce.  The beloved author was a little less beloved, and the LGBT folks ascribed a name to people like her.  Rowling is a ‘TERF,’ they said.  This stands for Trans Exclusionary Radical Feminist, a word which characterizes feminist women who do not want to include trans women (men who identify as women) in the definition of who constitutes a woman.  Simply put, Rowling is an anatomical woman who doesn’t think trans-women are women.  And it isn’t meant to be a compliment. 

While I’m sure the extreme left applauds the labeling of Rowling, Chappelle finds it laughable and most Americans probably do, also.  Maybe you don’t believe me, and that’s okay.  But one snippet of evidence might be the ratings on Rotten Tomatoes, where critical reviewers only scored it 43% ‘fresh,’ whereas the users gave it a 96% rating.  The masses love Chappelle because they believe he’s right about his observations 

Chappelle joked about the heroin epidemic which has decimated West Virginia.  I’ve had friends and former students who struggled with addiction and ultimately died from heroin overdose.  Chappelle made comparisons between the current heroin problem, which largely affects poor white people, and the crack epidemic of the 1980s and 90s, which affected poor black people.  And there I was, laughing.  

Cancel culture is not the answer 

Netflix is standing by Chappelle despite a wave of criticism.  They’re making money on Chappelle and they don’t believe he crossed any lines in terms of their values.  And there are several reasons why an attempt to ‘cancel’ Dave Chappelle is an exercise in futility and dangerous to the country.

1.  There is nothing LGBT supporters can hold over Chappelle.  The man has a net worth of $50 million and he has walked away from money once already.  He does’t care about social media.  Chappelle is happy to make people laugh and if people don’t like him, that’s okay too.  Critics can’t take away his marketability.  There’s nothing the critics can do to him.

2.  Chappelle is receiving support from trans comedians.  As mentioned previously, Chappelle developed a friendship with trans comedian Daphne Dorman and opened doors professionally for what he believed was a fellow artist. (Side note:  Dorman committed suicide in 2019.)  Dorman’s family also supports Chappelle.  Daphne’s sister, Becky, told The Daily Beast, “Daphne was in awe of Dave’s graciousness … She did not find his jokes rude, crude, off-coloring, off-putting, anything. She thought his jokes were funny. Daphne understood humor and comedy—she was not offended.”  

Flame Monroe, another trans comedian, surmised that in comedy, nothing is off limits.  Monroe noted, “As a comedian, I believe that I don’t want to be censored.  The world has become too censored.  All of this, what you can say and cannot say is ridiculous. Comedians are put on earth, and the safest place for us on the planet is us on the stage with a willing audience that’s willing to listen. We say things that other people are afraid to say, and we say them hopefully in a funny way, so you use your own mind to do your own critical thinking and think for yourself.”

Other trans and gay comedians had mixed reviews, and that’s okay.  But the support from some of the members of this community make it difficult to make Chappelle disappear.

3. Shouting down, labeling, and ‘cancelling’ only leads to more Donald Trumps.  In 2016, a number of moderate and conservative voters grew tired of being labeled bigots, homophobic, or transphobic.  They gave up trying to discuss issues and went to the polls, voted for Donald Trump, and felt like they made a statement (a terrible statement).  This is what happens when we attempt to shut down discussion or debate by labeling opponents or just engaging in a clap back.  

The LGBT community is working under the presumption that their policy positions are always correct and beyond contestation.  They may succeed in shutting up the opposition in the short term, but those same ‘bigots’ quietly go to the polls and vote Republican.  

Marshall, Interrupted: Death Does Come in Threes

Marshall University is the second largest institution of higher learning in West Virginia, with a rich tradition dating back to 1837.  The school originated as a private school, and soon transformed to a public school for teacher preparation.  In the early 20th century, Marshall became a college with expansive programs and in 1961, the state granted it with university status.  Since obtaining university status, and particularly in the 21st century, Marshall administration sought to expand its programs and elevate its profile.  

Since 2000, the school constructed or renovated over a dozen new buildings for academics, residence, and athletics.  The Dot Hicks Softball Stadium is a fantastic place to watch a game.  The Hoops Family Field is recently constructed home to the 2021 National Champion Men’s Soccer Team.  The Herd Baseball team finally has a blueprint and land for a long overdue stadium.  The facilities have become an amazing part of campus.

Marshall continually expands its offerings in programs and facilities, including a new physician’s assistant program, a nationally recognized digital forensics program, a flight school in Charleston, and a new school of pharmacy.  The university was elevated to the ‘R2’ status as a research facility, meaning more high level research occurs in Huntington.

Marshall has also more fully embraced traditions involving its namesake, the Chief Justice John Marshall.  Annual celebrations with cake and quoits tournaments are the norm.  The new Rec Center offers first class fitness equipment and programs.  I am genuinely sad that these developments for Marshall occurred after I finished my education there.  It’s a great place for students to learn and become better people.  

Huntington is home to an ever expanding Marshall University

Currently, Dr. Jerome ‘Jerry’ Gilbert occupies the presidency of Marshall University and he deserves some of the credit for recent successes of the school.  Undoubtedly, there are numerous administrators, professors, and financial supporters of the school who deserve credit for the big moves in Huntington.  However, we know if the school didn’t succeed, Gilbert would take the blame.  The success or failure of the school falls at his feet.

Gilbert’s office has not only helped to expand the infrastructure of the school, but also has plans in place to increase the school’s national image, increase enrollment, increase freshmen retention rates, increase graduation rates, integrate the university with local businesses and non-profits, develop more graduate degree programs, and create more job training for the people in this area.  His plans and achievements seem to fall in line with the university’s institutional priorities (published in 2015, prior to Gilbert’s arrival).  

I like the trajectory of Marshall University.  So, it came as a surprise to me that Dr. Gilbert announced in late April that he would not seek to extend his contract as president beyond its current end date of July 2022.  His decision stated that would part with Marshall for “a variety of personal and professional reasons.” 

Dr. Jerome Gilbert has led Marshall during the past five years

On June 4th, we saw another strange announcement, this time from the athletic department.  Athletic Director Mike Hamrick announced he was stepping down from his position and would still serve the university in a fundraising capacity.  This seemed like peculiar decision, considering the school had only recently won the national title in men’s soccer.  Hamrick also (presumably) played a role in bringing the Herd’s new football coach, Charles Huff, to town.  The longtime AD also played a pivotal role in massive development of athletic facilities since his arrival in 2009.  Moreover, someone has to get credit for bringing Men’s Soccer Coach Chris Grassie to Huntington, where Grassie turned the Herd into a national champion in less than five years.

Just four days after Hamrick’s resignation, Dr. Jaime Taylor, school provost and senior vice president for academic affairs, announced his resignation.  He will become the new president at Lamar University in Beaumont, Texas.  While this represents a step up for Dr. Taylor’s career, I have to pause at the timing of this development.  Three prominent administrators leave the university within five weeks of one another and these men occupied the three most significant positions at the school. 

Marshall University, in terms of its athletics and academics, is in a good place.  I would hope that people in the Huntington region would want to know what the reasons are for the departure of successful administrators, particularly when Dr. Gilbert cited professional reasons for his decision not to seek a contract extension.  What’s going on in Huntington?

Marshall University’s Board of Governors are displeased with the administration.  Why does the Board of Governors have a problem with a successful administrative team?  

There is a clash of ideologies from Marshall’s Board of Governors and Dr. Gilbert

Key members of the Board of Governors hold conservative beliefs, and three of these individuals have donated directly to Governor Jim Justice’s campaign (this will become more pertinent in a moment), including Chairman Patrick Farrell.  

If you have questions about Dr. Gilbert’s liberal bona fides, he has pursued a number of liberal policies in his tenure, including 

  • Supporting a student led effort to rename Jenkins Hall, the namesake of which served as a general in the Confederate Army during the Civil War and was a slaveowner.  After the Board of Governors voted 9-7 to keep the name in 2019, they unanimously voted to change it in 2020.
  • Targeting racism on campus, endorsing the Black Lives Matter movement, and encouraging students to engage in programs such as a voluntary book study of Just Mercy.
  • Influencing the end of Stewart’s Hot Dogs contract as a food vendor at Marshall football games, after Stewart’s owner and legislator John Mandt (R) made negative comments about Muslims and homosexuals.  
  • An outspoken stance opposing bills in the state legislature that would have permitted the carrying of firearms on college campuses.

The tenuous relationship between Gilbert and the Board of Governors reached a new level of strain this winter, when the president and the athletic director made a bilateral decision regarding the head football coach, the crown jewel position of Marshall University.  The Huntington Herald-Dispatch reported in January of this year that Chairman of the Board of Governors, Patrick Ferrell, lamented the decision not to renew Doc Holliday’s (former Marshall football coach) contract, saying, “The Marshall president made this decision after consulting with Mike Hamrick.”  Ferrell also noted that Gilbert informed the Board of his decision, but the Board had no say in the matter.  

Speculation from a number of Huntington natives believed the more conservative crowd from the Board of Governors (and Governor Justice) wanted Brad Lambert (defensive coordinator under Holliday) to land the vacant head coaching position.  Regardless of who they wanted for the position, it seems clear they were not thrilled about being kept out of the loop.

There’s a serious disconnect between Governor Jim Justice and Dr. Gilbert

The nature of the relationship between these two hit a strange snag in 2017, when allegations surfaced that the governor was attempting to meddle in the affairs of Marshall’s football program.  According to The Charleston Gazette-Mail, the governor sought to have then head coach Doc Holliday fired and replaced with his old friend (and former head coach) Bob Pruett.

At one point, Justice stated he did meet with five members of the school’s Board of Governors, but claims he did nothing to pressure them to do fire Holliday.  The report was so bizarre, it drew the ire of The Washington Post.  After Marshall had a difficult 3-9 season, Justice’s chief of staff, Nick Casey stated, “It was not a meeting to say, ‘Fire the coach and hire Pruett,’ … “It was a meeting to say, ‘Ratchet up your game and do something to get yourself back to greatness.’ ”

The sports angle encompassed a significant portion of Justice’s complaints, but the governor also pontificated about stagnant enrollment at Marshall and wondered aloud why the number of students in Huntington had not increased in the same manner as West Virginia University.  (Maybe someone should tell him that it’s cheaper for New Jersey citizens to pay out of state tuition at WVU than in-state tuition at their public schools.)

A serious instance of the beef between Justice and Gilbert surfaced in February of this year, as the Marshall president told members of the state legislature that he had been asked to stay quiet about the budget shortfall for the year that would have impacted the Promise Scholarship program.  This was prior to the 2020 Elections, which could have negatively affected Justice’s chances at re-election.  Moreover, both Marshall and West Virginia University had expressed frustration at the state’s failure to send payments totaling approximately $5.65 million.

It’s also worth noting that Jim Justice, as governor, has the responsibility to appoint the members of Marshall University’s Board of Governors.  I’m sure that Big Jim did not appreciate having budgetary problems aired in front of the state legislature, let alone the entire state.  

West Virginia puts the squeeze on higher education 

West Virginia’s government has slowly, but steadily reduced its commitment of tax dollars to higher education, and of course, this includes Marshall University.  As recently as Fiscal Year 2013, the state appropriated $54 million to Marshall, but for Fiscal Year 2020, that figure dwindled to $44 million.

With the reduction in state funds, difficult budget decisions must be made, and often this means reducing salaries, changing job descriptions, and more notably, raising costs of tuition and housing.  It is no secret that rising costs in higher education is an issue across the nation, but the lack of any effort from the state to correct this problem might have been too much for Gilbert to continue fighting.  

West Virginia appropriations to Marshall University trends downward

West Virginia also has a peculiar attitude towards higher education.  Currently, only 20.6% of West Virginians hold a bachelor’s degree or higher, which is well below the national average of 32.1%.  Do people here shun higher education?  To some degree, yes.  Many West Virginians hold a perception that individuals with higher education believe they are better than those without an education.  It’s as if those highly educated folks sit up in their ivory towers and have no idea what normal West Virginians experience.  And those without higher education sit in judgement of their fellow citizens, questioning their expertise and usefulness.  (Side note:  In case you’re wondering, West Virginia ranks lowest in percentage of citizens with a bachelor’s degree in the United States, and this includes Puerto Rico.)

The lack of higher education is somewhat attributed to the fact that many young college graduates leave the state.  However, I believe the disregard for higher education and expertise among the citizens bleeds into the government, as well.  For instance, here in West Virginia, I marveled at the 2018 Republican Primary (for the 3rd District House seat) when candidate Conrad Lucas was criticized for earning a degree from Harvard University (read about it here).  Lucas’ opponents clearly understood that criticism would resonate with Republican primary voters.

Maybe Dr. Gilbert, Dr. Taylor, and Hamrick grew tired of fighting against the legislature, the governor, the school’s board, and a state that didn’t appreciate them.  Did their ideological views always represent the majority of West Virginians?  No.  But this is no reason to discard a team that has a positive net effect.

What now?  

With Gilbert’s contract expiring in 13 months, and the two other positions lacking a permanent replacement, one has to wonder what the future of Marshall University will be and, what is the Board of Governors doing to remedy the situation?  How will we attract quality administrators to these positions if they lack the freedom to do their jobs? 

I’m not alone in questioning this set of decisions.  In the June 16th edition of The Charleston Gazette-Mail, an opinion piece from Marshall football alum Martin Palazeti outlines the odd circumstances of Mike Hamrick’s departure.  Palazeti’s piece rightly questions why Marshall would part ways with an employee with such a successful resumé.  

I want to be wrong about three resignations occurring within a five week period.  I hope it’s merely a coincidence.  But, the older I become, the less I believe in coincidences.  If there’s information we aren’t seeing, please, someone, tell us.  But I think the Huntington community may also want answers with respect to why these changes occurred, and they deserve these answers.

Political Pejoratives: Name-calling in America

Maybe it seems like petty politics, or junior high-ish.  You accept it because it has become the norm.  But it’s a problem that erodes the politics in the United States and it is pervasive, to say the least.  Name calling and labeling now constitutes a major problem in the political landscape that serves only to further divide an already fragmented population.

In the American political system, two major parties dominate elections and government at federal, state, and local levels.  Both Democrats and Republicans have a desire to implement the policies they believe to be best for the nation.  To achieve that end, these parties must first win elections, and that’s tricky.  In that pursuit of electoral victories, our parties have engaged in name calling campaigns that would make a sailor blush (okay, not that bad, but you get the idea).

So let’s take a look at some of the more popular pejoratives in American politics!

The liberal names

Marxist / socialist / communist — The go-to insult for conservatives.  They have used this label for nearly 150 years as a means of terrifying Americans that capitalism is on the way out and government will soon seize the means of production.  It’s also a misnomer because the three terms are not interchangeable.  If a person believes the government should control key aspects of society, that does not make them a communist.  It also ignores the fact that American society has a number of socialist programs which benefit people and provide common goods.

Elitist — When conservatives use this, they are referencing men and women who are highly educated.  The idea behind this pejorative is to mock academics as far removed from most of society.  The irony is that conservatives themselves are often just as ‘elite’ in terms of their income and education level.  

I mean, the cartoon is funny …

Snowflake — The term comes from the fact that scientists estimate that no two snowflakes are alike, signaling a uniqueness in the world.  Conservatives critique the approach of telling young people they are special and unique.  The world can sometimes be harsh and there are some individuals who are not prepared for adulthood, and conservatives mock this shattering of the ideal.  When young people object to the harsh realities of society or express their difficulty in dealing with the world, conservatives mock them for it.

“Fake news” — This phrase isn’t necessarily directed at a person, but it can be.  Former President Donald Trump used this term frequently to describe a news report he didn’t like or portrayed him in a negative light.  He later ascribed it to media outlets he didn’t view favorably.  

The conservative names 

Fascists or Nazis — The liberal answer to being called a Marxist is to refer to conservatives as fascists or Nazis.  Any time government officials undertake a more conservative approach to aa policy, this is the label it receives.  It conjures up images of Hitler and his black-shirted henchman marching through the streets of America or maybe a dystopian television show, a la The Handmaid’s Tale.  (Check out Godwin’s Law for entertaining reading.)

Religious nut / fundamentalist / zealot — The use of these names take aim at conservative religious groups (Baptists and Mormons, of note) who often align themselves with conservatives in political matters.  The liberal segment of society would have the nation believe we are somehow on the edge of a theocracy that would make Iran look kind.  Someone should tell the liberal crowd that most churches aren’t like Westboro Baptist.

Bigot / homophobe / racist / misogynist — I lumped these terms in the same category because they are all aimed at conservative perspectives on society.  Liberals know these terms are strongly charged because they point to the hatred of an entire group of people.  It attempts to establish a binary of us versus them, and unfairly characterizes a large swath of Americans as bitter, hateful people.  Does anyone truly think Republicans have a meeting of party officials and ponder, “how can we discriminate against women this year?”  The irony is that liberals often want to avoid such stereotypes.  

“The wrong side of history” — In many instances, liberal operators want citizens to believe that failure to enact their policies will cause future generations to ridicule them and view them unfavorably.  This presumes that liberals are on the correct side of history, and ignores the fact that our perspectives on history change over time. 

Why do the two sides engage in this behavior?

It wins elections.  We appeal to the fears of human beings because it’s effective.  Fear is a powerful motivator, especially when one side frames the other as an existential threat to a way of life.  In the sense that both major ideologies want to win elections, this tactic helps.  Anyone who examines the 2016 Trump Presidential Campaign will see the effectiveness of labeling opponents:  Lyin’ Ted, Crooked Hillary, Low Energy Jeb, etc.  Thought it’s disgusting, this rallies people behind someone they believe represents them.

Trump mocking his fellow members of the GOP helped his 2016 campaign

We like binaries.  It’s us against them.  When we characterize complex problems with a simple choice of good guys versus bad guys, we typically will pick a side.  Most people find it difficult to research a topic, learn the nuances of stakeholders, and consider the ramifications of various policies.  Not only can it be difficult to understand, but it requires time to process information and genuinely eliminate biases.  When we only have two choices placed before us, the situation becomes less complex and humans love the path of least resistance.

We like justification for our preconceived thoughts.  No one wants to accept that they might be wrong about a belief, and this is even more true when the belief is a long held idea.  If we establish the opposing perspective as somehow mean spirited, evil, or anti-American, it becomes that much easier to call them names and ignore their views.  It’s a form of dehumanization.

Social media makes it easy.  When so much of our discourse takes place online instead of in front of another human being, you don’t really feel bad for calling them a name.  It’s a faceless window you’re criticizing and not a human being with feelings, problems, or a unique life which led them to their beliefs.  On social media platforms, you zing someone and people react to your witty one-liner, but they rarely take time to respond.  You didn’t win the argument, you didn’t ‘own’ anyone.  Our words do more to alienate others rather than win them to our cause.  Also, people use words online that wouldn’t hold up in a face to face conversation. 

Problems which result from the name-calling 

Applying labels is the quick and easy path, and while it can prove effective in winning elections or manipulating the public, it negatively affects us. 

Name-calling affects how we view our political opposites, and it bleeds into life beyond the political.  This is consequence of the fact that social media has multiplied the problem.  Everyone now possessed a megaphone to the world.  People from nearly anywhere on the planet can tune in and read what you believe about any topic.  We treat people as less than human when we ridicule them.  

We pigeonhole the other side.  When you categorize human beings into a broad based category, you make a blanket presumption about the entirety of a person, predicated upon a brief statement.  Everyone else is neatly framed as simplistic, placed in their box, and easily dismissed as not being ‘in the know.’  Simultaneously, we see ourselves as complex people, applying so much nuance to our views, and if people just could see inside our heads, they would understand. We have a tendency to judge entire groups of people on their worst representatives.

Political discourse grinds to a halt.  No one likes being called names or shouted down, so they stop engaging.  When people do not discuss their ideas or perspectives, how can the possibly create solutions to the problems of the nation?  How can a person claim to understand the opposition when they have not listened to perspective?  

The constant use of labels desensitizes us towards genuine dangers to our democracy.  The townspeople ignored boy who cried ‘wolf’ when real danger finally arrived.  So, too, do we ignore certain terms because they have become so ubiquitous.  They have lost their meaning.  The snap reaction of calling someone a fascist or a communist has occurred so often, no one takes it seriously anymore.  

The divide between the left and the right continues to grow each decade

Polarization of our parties and ideologies naturally follows from name-calling and lack of discussion.  The disregard shown to a person for expressing any different idea pushes them further into the other ‘tribe.’ 

We vote for morons.  The polarization, lack of discourse, and the refusal to consider others as human beings means we vote for people based on the party they represent rather than their ability to represent the people.  People elect shills for their party rather than good men and women.  This is how the likes of Josh Hawley, Tom Cotton, and Marjorie Taylor Greene hold office in the United States.

Gridlock becomes normal.  Governments at all levels become unable to effectively create and implement policies because they often need to control the executive and legislative branches to pass legislation.  When governments do not pass legislation, the people suffer. 

So, what do we do about it?

We cannot sit idly, that’s for certain.  While one person may wonder what they can do, they have the ability to affect change.  That’s the subject of the next post. 

For the people, for the win

Traditionally, individual American states are left to establish their own election and voting laws.  However, a number of states have created policies which placed unconstitutional and unnecessary obstacles to voting.  Southern states notoriously discriminated against people of color for decades before the Voting Rights Act of 1965 ended many of these practices.  This legislation also required states with a history of discriminatory practices to seek preclearance from the federal government before changing election laws.

In 2013, the Supreme Court ruled in Shelby County v. Holder that the ‘preclearance’ requirement was no longer valid considering the Voting Rights Act was based on racial data several decades old.  The decision allowed states latitude in creating election laws again.  Numerous states have passed laws requiring photo identification to vote, which could be construed as a form of poll tax and an unnecessary obstacle for voting.  States have revised legal codes to make it much easier to purge voter registrations if citizens do not vote often enough.  In the last few months, several state legislatures have tightened restrictions on early and absentee voting for no discernible reason.

To address accessibility to voting and other election related issues, Democrats in the US House of Representatives created HR1, known as theFor The People Act.  This bill is an all-encompassing reform of a large number of policies which have made the United States less democratic in terms of elections.

Voting

In terms of voting, the bill requires automatic voter registration in each state, and citizens can still opt out if they desire.  The bill will also permit registration via internet, require states to allow same-day registration (on Election Day), and provide funds to states to promote additional registration drives and the importance of voting.  

HR1 will also maintain that states provide more accessibility features in terms of voting for citizens with physical disabilities.  States must also restore voting rights to felons who have served their criminal sentences.  On Election Day, the ballots would be standardized for federal elections and provide more consistency nationwide.

Senate Majority Leader Chuck Schumer (D-NY) promotes the For the People Act

Mail-in voting and absentee ballots would become easier to obtain and use and states would be required to establish contingency plans for voting in the event of natural disasters or a health related issue (you know … like a pandemic).

Representation issues in Congress

One of the more important features of this bill encourages and supports (but not require) that Washington, D.C. become a state, thereby guaranteeing them representation in the House and Senate.  The bill points out that D.C. already has more population than a few other states and promotes the idea that citizens within the capital city deserve this.  

Similarly, the bill also encourages and supports federal voting rights (but not statehood) for Guam, Puerto Rico, American Samoa, the US Virgin Islands, and the Northern Mariana Islands.  For those keeping score at home, these are all American territories, but they do not receive the same rights and privileges as states within the union. 

In what may be the most important aspect of this bill, states would be obligated to establish an independent commission which would draw borders for Congressional districts within a state after the census numbers determine population gains or losses.  This would take authority away from state legislatures to gerrymander districts to help or hurt parties, races, or particular candidates.  

How gerrymandering can affect election outcomes

This section of the bill also would end the practice of ‘voter purges’ where states often delete citizens from the registration database if they have not recently participated in an election.

Campaign Finance Restrictions 

Non-citizens would be prohibited from participating in any type fo electioneering activities, expanding a current ban on foreigners not being permitted to donate to campaigns.  Additionally, the new law would ban the practice of creating corporations for the purpose of funneling foreign money through those corporations for use in election related activities.

Online ads would become more transparent in who funded them, including requirements for disclosure of top donors to a particular group.  “Deepfake” videos would be banned from political ads, and publicly traded corporations would have to disclose financial information (including donor lists) to shareholders.

Campaign Finance Empowerment

The federal government would launch a pilot program in three states which would provide every eligible voter with a $25 voucher for a donation to a candidate.  These citizens could then take the voucher and give it to the candidate of their choosing.  The idea behind this program would be to allow for more Americans to express their voice through donating funds to a candidate that they might not otherwise donate due to a lack of finances.

Candidates for federal office would be eligible for ‘matching funds’ when they receive smaller contributions (under $200).  Those contributions would be matched up to six times the value to amplify the voice of small donors.  (To receive the matching funds, federal candidates would have to meet certain eligibility requirements. )

Small contributions would also benefit political action committees (PACs).  Under HR1, any contribution under $200 to a PAC could be placed in a special account where a contribution of up to $10,000 could be made to any one candidate (as opposed to the usual limit of $5,000).

Strengthening the Federal Election Commission 

Currently, the Federal Election Commission (FEC) has a six person team to make decisions about campaign finance enforcement and the even number sometimes inhibits the ability to act.  This bill would reduce the size to five members, chosen by the president on staggered terms, to enforce campaign finance law.  

The FEC would have the ability to more effectively monitor Super PACs by an expanded definition about what types of coordination these entities could have with candidates or their campaigns.  

Congressional and Presidential Ethics Requirements 

Some other requirements which affect those running for and holding federal office:

  • The president would have the option of either divesting any stocks or financial holdings which might cause a conflict of interest or place his accounts into a blind trust.  The president would also be prevented from having any government contracts through any of his or her business holdings.
  • Presidential appointees would be required to disclose political donations.
  • Congressional members and their staff cannot advance any legislation that financially benefits themselves or members of their immediate family.
  • House members would be banned from serving on the board of any for-profit companies. (Apparently, the Senate already has rules in place for this.)
  • Staff members of a Congressional office must disclose outside compensation and reports will be available about this information.
  • Presidential and vice presidential candidates must disclose income tax returns and any returns on personally owned businesses for the previous 10 years.

What are the pros of HR1?  

I believe democracy deserves free and fair elections where voting should be as easy as humanly possible.  I cannot understand why automatic voter registration hasn’t been part of the American way.  Other democracies have been doing this for years.  Standardized ballots, early voting, mail-in voting, no more ‘purges’ of legitimate voters — these all make sense.  Having a more uniform system of voting is one aspect of a democracy where a nationwide policy is better than 50 different entities have a wide variety of rules and regulations.  When we have allowed this, marginalized groups, particularly racial groups, have been the victims of discrimination.  

Changes from HR1 mitigate some of the effects from the Citizens United v. FEC decision, which gave rises to Super PACs and more ‘dark money.’  Requiring more disclosure of funding sources and how campaign finances are spent lets citizens know who funds the candidates and to what extent.  This can only help democracy, not hinder it. 

The impact of Citizens United on campaign spending is undeniable

The experimental voucher program and matching funds program could considerably alter elections for the foreseeable future.  Candidates who have widespread appeal among citizens who do not have monetary resources would now possess the ability to financially express support for candidates.  Currently, most Americans do not contribute money to campaigns or candidates. This would be an entry point for many Americans to consider donating to a candidate.

HR1 might effectively end the ridiculous practice of gerrymandering, where state legislatures have the ability to draw congressional district lines to the benefit of their preferred candidates or political party.  This practice, by both Democrats and Republicans, establishes districts where no real competition exists.  As a result, members of the House of Representatives often do not fear losing their seat because they never have to make difficult decisions on legislation.  

And the cons … ?

The most significant problem with this bill might be the same problem most bills present:  the cost.  Added expenses to the federal government for the necessary standardization of voting equipment, ballots, and other devices would only increase an ever expanding budget.  Neither Democrats nor Republicans seem to possess any motivation to reduce government spending, and this issue already existed prior to the COVID pandemic.  

HR1 also adds more layers to an extremely large federal bureaucracy.  Who will monitor the expanded regulations?  The FEC will most likely need more employees and states will need additional resources to comply with a number of the requirements this law would demand.

The bill is a monster of nearly 800 pages and it would change quite a bit of policy in one fell swoop.  Congress might be more pliable in changing election laws in a more piecemeal approach, where one bad provision doesn’t sink a bill full of good changes.

Statehood for Washington D.C. and federal voting rights for territories  would not be required by HR1, but the bill would create a commission to study changes for federal territories and encourages statehood for D.C.   This is most likely to be construed as a power grab by Democrats.  If territories were granted electoral votes in the presidential elections (similar to D.C. in the 23rd Amendment), these areas would likely vote in a more liberal fashion, handing any Democrat an easier path to the presidency.  The possibility of statehood for D.C. or any of the territories would also receive a healthy dose of skepticism because it would likely mean more Democrats serving in Congress.  The United States has an obligation to do more for its territories, but we should be asking why Democrats appear so concerned about this now?  

This bill would weaken state sovereignty.  In our federalist system, the line of demarcation between the national government and state governments will become more blurred.  States generally make their own policies about elections and this bill will take one more power and place it under the vast umbrella of the federal government.  

A compelling argument exists for the uniformity of elections nationwide.  Southern states, in particular, have repeatedly demonstrated their willingness to enact discriminatory practices in elections which either prevent voting or establish unnecessary obstacles to participate in the most important form of political participation.  Moreover, the federal government does maintain an obligation to promote the general welfare and secure the blessings of Liberty for the American people.  

Will this bill pass?

HR1 has already passed through the House of Representatives by a 220-210 vote, almost entirely along party lines (one Democrat voted against, two Republicans did not vote, and two other seats were vacant at the time of the vote).  The Senate will advance the bill since Democrats are in the majority, but the road will be long for the bill to become law.  Why do Republicans not like the bill?

The simplest explanation is that the passage of this bill translates to a strategic loss for Republicans.  If this bill passes, they will lose more elections.  The makeup of Americans in terms of Democrats and Republicans in modern history has leaned towards Democrats.  To offset a numerical disadvantage, Republicans have utilized vast financial resources and gerrymandering to win elections.  (Both parties gerrymander districts when they think they can get away with it, but the Republicans just happen to be better at it.)

Passing this bill would mean independent commissions with members of both major parties would work together in creating fair boundary lines.  If they cannot agree on a redistricting plan, a panel of federal circuit court judges in that state would take over the task.  This would diminish the ability of Republican controlled state legislatures to establish districts that maximize their representation in the House.

Republicans would also lose ground in the financial arms race of elections.  Money does not guarantee a win in an election, but candidates don’t win without it.  Allowing matching funds for small donations helps individuals who do not have access to significant wealth.  These contributions and the experimental voucher programs would benefit people more likely to identify as Democrats rather than Republicans.  Furthermore, the requirements of disclosures of top donor lists from Super PACs would demonstrate who funds the groups with some of the most ridiculous and dishonest attack ads.  These individuals who fund and operate Super PACs would also face more limitations in terms of what types of interactions they can have with those candidates.  

Republicans do not want this bill to pass and they currently have 50 votes in the Senate.  Since HR1 is not a budget related bill, debate is not limited and the GOP members would filibuster this bill if necessary.  Breaking a filibuster and ending debate would require 60 votes and obviously, it’s a difficult hurdle to overcome.  But, Democrats can pass this bill based on what transpires in the next few months.

President Joe Biden and his team can move this bill across the finish line, but it will depend on a few factors:

  • Can this administration deliver on its promises of vaccination availability for Americans?  Biden promises 100 million shots in his first 100 days in office and the administration says it is on track to meet that goal.  The more this administration delivers on promises and meets objectives like this, Senate Republicans will face more pressure to vote for legislation supported by Biden. 

  • What will happen with the Biden team’s infrastructure bill in Congress?  The success or failure of this legislation will help to determine the fate of other legislation in the future.  The more momentum Democrats build now in not only passing legislation, but efficiently carrying out those policies will make it increasingly difficult for Senate Republicans to vote no on HR1 (or any other legislation).
  • Can the administration tamp down distractions?  In any given moment in the United States, issues manifest themselves and government must response.  Gun violence has already returned and the pandemic is still an ongoing reality.  Jobs reports, GDP, market activity, and international crises will also take attention away from other legislative priorities.  

I want to see this bill pass, but the odds are against it at this point.  Democrats need all the stars to align to sufficiently pressure Senate Republicans into passing this bill.  The odds seem to be against these things coming to pass, particularly since the Biden team prioritizes the infrastructure above election law.  I put the odds of it passing as low, but it would be instrumental in making the United States a more democratic nation.