Tuesday, February 19, 2019

Voters’ Remorse

by Neil H. Buchanan

The scandals roiling Virginia politics have receded a bit from the headlines, but the good news is that there seems to be agreement that the sexual assault and rape charges against Lieutenant Governor Justin Fairfax should be fairly investigated.  Because nothing official has yet been put in motion, that apparent consensus might ultimately break down, but as of this moment, it at least seems possible that the initial chaos will yield to something resembling a real investigation and a deliberative process.

In a column last week, I compared how the Fairfax situation is being handled to the Republicans' shameful mishandling of Brett Kavanaugh's nomination to the Supreme Court last Fall.  In the comments on that column, some readers debated whether it would be appropriate to keep the winner of an election in office after news breaks that might have changed the outcome of the election.  If news emerges that would have reversed the result, should the winner be impeached or forced to resign?

Counterfactuals are always difficult to think through, and this one is especially challenging because of the nature of the criminal accusations against Fairfax, the role of race in the campaign (Fairfax is only the second African-American to win statewide office in Virginia, and he carried an ancestor's manumission papers when taking the oath of office in Richmond -- a city dripping with Confederate iconography), sexism, and so on.

This thought exercise is made all the more difficult because one of Fairfax's accusers has been the subject of scrutiny, with Politico publishing a story that pretty strongly questions the credibility of her claim to have been raped by Fairfax when both were in college at Duke in 2000.  Why?  She "was accused of harassing and threatening a man she had a relationship with" in 2008, and that man obtained a restraining order against her.  She also claimed to have been raped by a Duke basketball player.

It is easy to see the stereotyping that might be happening here, with the accuser being portrayed as a "crazy stalker chick," a real-life version of Glenn Close's character in "Fatal Attraction."  The difficulty in these situations is that, although such people are mostly a figment of the public's collective misogynistic imagination, there is a non-zero chance that this woman is one of the rare real deals.  On the other hand, just this morning she published an op-ed in The Washington Post, insisting on the opportunity to testify publicly, an opportunity that Virginia has not yet provided her or Fairfax's other accuser.  If she is making this up, she is still putting herself out there, apparently with no desire for money, fame, or anything else.

For current purposes, I do not need to draw any conclusions about whether those reports against the accuser are true or false, of whether they matter to Fairfax's future in politics.  Instead, the question is what the voters of the Old Dominion would have done if this had all come out before the election.  Certainly, if only the two initial allegations had come out a day or two before the election, it is easy to imagine that Fairfax would have lost.  But if this all happened a month or three before the election, there might have been enough time for people to sort through the situation and figure out whom they believed, a process that would have forced them to think about the standard of proof needed in purely political allegations, and so on.

The same counterfactual puzzle comes up (as the commenters on last week's column discussed) with regard to Virginia Governor Ralph Northam.  Northam weathered an especially ugly, Trump-like campaign waged by his opponent, longtime Republican operative turned opportunistic nativist Ed Gillespie.  It was refreshing when Northam won easily, 54-45 percent, a difference of more than 232,000 votes out of only two and a half million total votes cast.

But again, we can ask whether Northam would have won if the racist incidents from his past had been raised before Election Day.  When the news broke last month, nearly every Democrat in Virginia and nationwide called on him to resign (calls that he continues to resist).  If this news had broken on, say, October 31, what would have happened?  What if this had happened on August 31 (or whatever the first day was when he could not have been replaced on the ballot)?

First, would Democrats have repudiated Northam, forgiven Northam, or remained uncomfortably silent?  No matter what they did, the second question is whether at least one more than half of those 232,000 voters who put him over the top would have voted for Gillespie instead.  (It seems very clear that Northam would have lost the Democratic primary, if all of this had happened earlier in the year.)

Although Virginia still is home to far too many blatant racists -- my visits to Richmond have been truly bizarre, seeing a beautiful and genuinely progressive city marred by prominent statues of the defenders of slavery; and the Republican who lost to Tim Kaine in Virginia's U.S. Senate race can make Stephen Miller and Steve Bannon look like Martin Luther King and Nelson Mandela -- but most of those voters were already going to vote against Northam anyway.  If the majority of Virginians who are sickened by Trumpism had been told about Northam's disgusting behavior, what would they have done?

There are cases where voters have shrugged off what seemed like major campaign-ending incidents, including Trump's comebacks from his many, many "He's finally finished!" moments -- most prominently the "Access Hollywood" tape.  On the other hand, when Howard Dean inadvertently created "the Dean Scream" in 2004, what amounted to little more than excessive celebration effectively ended his presidential candidacy.  Going further back, Gary Hart's rather tame sex scandal derailed his career, but eight years later Bill Clinton survived not only the pseudo-scandal of having smoked marijuana but his genuinely boneheaded "I didn't inhale" defense.

In short, it is easy to find examples of things initially seeming to matter but then becoming nothingburgers and vice versa.  Based on what I know about Virginia politics and the way the campaigns were playing out, I am reasonably confident that Northam would have won in an alternative universe where opposition research turned up his yearbook photo during the general election campaign -- even if he handled the situation as badly as he did in the real world.  (Moonwalking?)  Similarly, with enough time to publicly litigate the charges, I suspect that Fairfax would have retained the support of party leaders and would have won (assuming that there are no additional facts coming out against him).  But again, who knows?

The title of this post, "Voters' Remorse," asks this question from a slightly different perspective.  For people who say, "If I had known, I would have voted differently," the proper response is, "How do you even know what you would have done?"  With the election behind us, we are all able to focus on the racist things that Northam (and state A.G. Mark Herring) did and the crimes that Fairfax might have committed; but that might not tell us how we would have reacted in the moment, when pressure was building nationwide to send Trump a message in the few off-year elections of 2017.  Especially given the alternatives, even people who now honestly claim to know that they would have voted differently might be subject to cognitive bias.

The bigger question is whether we should be able to request do-overs when new facts come out and circumstances change.  Elections are necessarily run on the facts that we know at the time and the expectations that we have, which means that it is always possible to have regrets when someone disappoints us.  There is a reason that "Don't Blame Me, I Voted for ____" is a staple of the bumper sticker business.

This is why impeachment should not be a matter of simply saying that we want to move up the next election.  As vague as "high crimes and misdemeanors" is, it has to mean more than the feeling that "the guy ended up sucking," even if he did.  Northam, Herring, and Fairfax raise different types of issues that are clearly worse than poor performance in office, but saying that they should go because they would have lost in an alternative universe is not necessarily the right way to think about how to handle surprising revelations.

Continued effectiveness in office is the more central question, which of course is related to how the public reacts to surprising new facts; but "He probably would have lost" is not automatically a reason to say "He's gotta go."  And I say this knowing that there are surely well over 100,000 people in Wisconsin, Michigan, and Pennsylvania who, with 20/20 hindsight, wish that they had voted for Clinton instead of Trump or -- and this is surely the larger group -- wish that they had not stayed home (or voted for Stein or Johnson).

Which brings us to perhaps the most interesting inquiry, which is different from but related to voters who conclude ex post that the ultimate winner of the election is a bad choice.  What about voters who cast protest votes (or non-votes), on the theory that their choices would not affect the outcome?  Plenty of people said they were voting for Trump simply to "flip the bird" at the political establishment, but they were fully confident that Trump would lose.  They wanted to throw a scare into the system without actually inflicting Trump on the world.  As Rick Perry would say, "Oops!"

In my time here in England, I am learning more and more about Brexit, which is an unfolding disaster that was completely unnecessary and amounts to a nationally self-inflicted accidental injury.  Immediately after the vote, and in the nearly three years since, journalists have interviewed countless Leave voters who are expressing various versions of voters' remorse.  Again, the plan was to count on the polls being right (Brexit being projected to fail, just as Trump was projected to lose) but to make the outcomes close enough to get the elites' attention.

Elections have consequences.


David Ricardo said...

There is little to disagree with in this post, but it would seem the situation in Virginia is unique with respect to 'voter's remorse'. And the two cases, Fairfax and Northam are different.

With respect to Fairfax, he should be allowed to remain in office pending an investigation. Assuming that he did not even know of the allegations against him, which is highly likely, he did not defraud the voters. It is not his fault that the accusations have come out after the election, and if he wishes to fight them and to cooperate with a full independent investigation that is his right.

But the Northram situation is not the same. No one believes that Northam did not know of his yearbook page, and he has admitted 'mistakes' in the past which he refuses to detail but almost certainly involve some type of racial bias. And he has admitted doing blackface, not when he was a young immature teen but when he was in the armed services and a graduate of medical school. Northam had knowledge which he deliberately withheld from the public, and even Mr. Buchanan admits he would not have been the nominee had that information been made public.

Also, the situation with the two Republicans who are indicted yet re-elected, along with the situation with Rep. Steve King in Iowa and the two successful racist candidates in Florida and Georgia is not relevant. Voters knew what they were getting and in spite of their ugly pasts and positions these people were legitimately elected. The same with Trump, there is no question that what he is now is what he was in the campaign.

But Northram is a fraud. He does not deserve to be Governor and if he had any morals, any decency, any ability to understand his position he would resign. If he does not do so, he should not be impeached because his conduct as Governor does not justify it, but he should be avoided and shunned for the rest of his term.

Shag from Brookline said...

Regarding Neil's penultimate [still my favorite word] paragraph reference to Brexit, I watched a video yesterday of John Oliver's Sunday "Last Week Tonight" in which hehe provided an excellent summary of the Brexit brouhaha (including a Churchillian touch).

Assuming Northam should resign and Fairfax allowed to stay in office pending an investigation, wouldn't Fairfax's office then be as Governor?

David Ricardo said...

Fairfax would ascend to the Governor's office if Northam resigns but if a qualified, independent investigation determined that the charges against him that he had engaged in sexual assault are credible then it is likely the forces of decency would require his resignation. The standard for serving in office is not the same as criminal conviction; no one should be allowed to serve a high office just because he is found not guilty beyond a reasonable doubt when the charges against the person are credible. This should have been but was not the Kavanaugh Standard.

This would of course elevate the current AG to the Governorship, and he too has baggage but it would seem to pale relative to the faults of the other two and it is likely reasonable people would want him to complete the term of office.

And for anyone who is not comfortable with this position, I join you inyour discomfort but with the caveat that there is no other position I am more comfortable with.

Joe said...

" It was refreshing when Northam won easily, 54-45 percent, a difference of more than 232,000 votes out of only two and a half million total votes cast.

But again, we can ask whether Northam would have won if the racist incidents from his past had been raised before Election Day."

That is a fairly large margin. Looking, I see the margin in the primary is comparable. The dynamics were different, of course, since his opponent in the general has a lot more racist baggage (in his career; not just 35 years ago while he was in school).

So, it might very well have matter differently there. If it was during the general, I think the same weighing being done by the population now [polls appear in his favor in regard to staying] might have led to a close victory. Coverage of Virginia's racist beliefs add to my beliefs there -- if he put forth similar apologies etc., voters as a whole would feel good that a local son was moving on. Those who who would be pissed at him would realistically realize the alternative was no better. But much worse. This might have been different in the primary.

There is going to be over and over again things that in some fashion mislead voters, including some sort of information (especially if it is from the distant past) they did not have. In some cases, like in 2016 [reports in a major national newspaper misleading them on Trump's Russian connections], this can be very hard to take.

But, it is what elections will be about. With respect, this "fraud" talk as applied to the sort of thing done with Northam to me (again) seems very dubious. Some 'tell the truth, the whole truth and nothing but the truth' standard does not apply there.

Yes, elections have consequences, and like Brexit (good Last Week Tonight segment), voters and those who guide them should keep that in mind.

Greg said...

Maybe I'm naive, but isn't it a completely unworkable standard that anything negative discovered after the election that could have turned the election result warrants removal from office? I mean, by that standard we would basically be requiring candidates to voluntarily disclose anything negative that they have ever done in their entire lives, to prevent someone else from discovering after the election. That, to me, is a patently ridiculous standard.

A far more workable standard for removal from office (even voluntarily) would be that the offense must be so heinous or reflect such a dramatic lack of judgement as to, at a minimum, create questions about the elected's ability to perform the duties of their office. Serving as a public role model can count as one of the duties of someone in a number of elected positions, so provides some leeway on exactly what meets this standard. Both Fairfax and Northam's actions could qualify.

Failing to disclose some embarrassing but moral and noncriminal truth (say, that the elected doesn't know the price of milk) is not grounds for removal from office. This is true even if it would have changed the result of the election if made public.

David Ricardo said...

Agreed. Northam definitely meets the criteria of paragraph two. Fairfax meets the first part of the second sentence, although he is entitled to an investigation. The question in an investigation is what is the standard. As far as performing his duties, that doesn't seem to be a problem only because it appears there are no duties for the Lt. Gov. in Va except to get up each morning and ask how the Governor is feeling.

Joe said...

If his actions in the early 1980s qualify, this "role model" rule has an unclear stopping point.

Joe said...

Fairfax presides over the state Senate. He stepped aside once when it was time to praise Robert E. Lee or some such figure. If moral role models matter, maybe that role matters a bit.

David Ricardo said...

If Kavanaugh is deemed unfit because of his actions as a teenager, which he is, then sure Northam is deemed unfit because of his actions when he was in his mid to late 20's.

Common Sense easily provides a stopping point.