photo by: Eric Ayres

A stack of negative campaign mailers pertaining to the city of Wheeling's mayoral race is shown. The illegal attack ads do not contain information about the source of the material or the source of the funding used to send out the mailers, which hit mailboxes of Wheeling residents this week - just days before the municipal election.

WHEELING — The owner of the U.S. Post Office box being used as the return address for several illegal campaign mailers vehemently denies any connection to them. He doesn’t know why that address appears on the mailers, nor does he know who is behind them.

He does, however, want to see them face the appropriate consequences.

“They picked the wrong guy,” said the longtime city resident who has used the P.O. box since 2007. “My family is upset about this. I am not involved in this. To me, it’s fraud. This appalls me.”

The P.O. box owner asked that his name be withheld upon the advice of his attorney and out of concern that the situation will bring even more unwanted attention to his family.

Stacks of political mailers with “Return to Sender” stickers on them flooded that box this week, leaving the unsuspecting box holder in disbelief. The mailers sent out to undeliverable or incorrect addresses in the city were simply sent back to the return address that was printed on them. However, the people who use this box said they had absolutely nothing to do with mailing the attack ads.

Since receiving the flood of returned mail, the box holder has contacted the U.S. Postal Service, the U.S. Postal Inspector, the West Virginia Secretary of State’s Office, the U.S. Attorney’s Office and his own legal counsel.

“It’s very frustrating,” he said. “I hope whoever is doing this is prosecuted to the fullest extent of the law. And I hope it’s not just a slap on the wrist.”

Not only is the sender of these mailers apparently using someone else’s post office box number for a return address, they are also failing to provide the familiar “paid for by” disclosure line that cites the creator of the material and the funding source behind it — which is required by law.

The recent array of negative campaign mailers focusing on Tuesday’s municipal election were sent out in recent days to addresses throughout the city. The vast majority of the mailers are negative attack ads, and some have QR codes that link to YouTube videos related to candidates in the municipal election — most of which also are negative ads.

An initial round of mailings focused on candidates in Wheeling’s mayoral race, as did the linked videos. Each of those six candidates denied any involvement in the mailers. A more recent batch of mailings focused again on candidates in the mayor’s race and also targeted incumbent candidates running for re-election to ward council seats in the city.

Those running in these races have expressed how disheartening it has been to put hard work into what had been very positive campaigns – focused on pertinent local issues – just to have it be turned into turmoil in the final week generated by mud-slinging ads that contain personal attacks and attempts to inject divisive, partisan politics into non-partisan municipal races.

“It’s disgusting how people are trying to deteriorate our voting system, for one,” said the P.O. box holder, who said he has felt as victimized as the targeted candidates themselves. “I hope whoever is doing this not only learns a lesson but also is held accountable for it. To have somebody do this behind their backs, then use somebody else’s P.O. box, that’s a violation — that’s like having your house burglarized or your identity stolen. Now I’m forced to come forward and say that I had nothing to do with this, and still face the possibility that some people may think that I’m associated with it. That’s not right.”

The West Virginia Secretary of State’s Office does not acknowledge when a complaint regarding alleged election violations has been registered or when an investigation has been launched. Delegate Diana Winzenreid, R-Ohio, publicly stated this week that she did register a formal complaint about the rogue mailers with the Secretary of State’s Office. Secretary of State Mac Warner also explained the laws regarding the required disclosures on election-related material.

On Thursday, Warner referred general questions about these situations to his Chief of Staff Deak Kersey, who noted that the election rules are clearly spelled out in state code. He added that the line has been somewhat blurred in recent years because of an opinion issued by West Virginia Attorney General Patrick Morrisey in 2017.

“If there appears to be a violation, we may have to refer it to the prosecutor,” Kersey said. “But no prosecutor has ever taken up one of these in the last seven years.”

According to West Virginia code as it relates to regulation and control of elections, “a person may not publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular, placard, radio or television advertisement, or other publication supporting or aiding the election or defeat of a clearly identified candidate.”

However, Morrisey in October 2017 issued an opinion stating that state law prohibiting anonymous election pamphlets is too broad and is unconstitutional. The ruling bolstered the notion that anonymous campaign mailers are protected under the First Amendment and should be considered freedom of speech.

Regardless, the Secretary of State’s office investigates cases such as these and still makes referrals — if they appear to be in violation of the state code as written — to be considered for prosecution.

“In fact, any prosecutor in the state could take it — even without our referral,” Kersey said. “The Ohio County Prosecutor’s Office can go down right now and file charges if they believe they could prosecute a case.”

Even in the event that an investigation by the Secretary of State’s Office indicates that a violation of the law has occurred, Kersey noted that they also inform parties of the attorney general’s decision.

“It’s never been challenged in court,” he explained.

Nonetheless, Kersey said if a piece of campaign literature is sent through the mail, even anonymously, the Secretary of State’s office can identify the sender while investigating a case.

“Generally speaking, there’s more than one way to find out who sends something, whether that’s business reply mail or otherwise,” Kersey said, noting that there has to be money spent to produce and distribute election-related materials like this. “You just follow the breadcrumbs.”

Even if an investigation into the mysterious campaign mailers was launched this week, the Secretary of State’s office indicated it is almost guaranteed that an investigation would not be completed before election day on Tuesday.

“It’s extremely frustrating,” Kersey said, indicating that the opinion that has hindered prosecution of such cases can lead to “dirty politics” by people intending to influence elections. “Ultimately, the legislature is going to have to address this. There’s been a lot of talk about the need to button up the disclaimer requirements.”

Officials from the Secretary of State’s Office have cracked down on individuals who have left out financial disclosures on campaign signs, and the common practice is to give them an opportunity to correct the mistake — which is often an oversight — and add the required information to their signs.

When it comes to direct mail, the option to right the ship has sailed, Kersey noted.

“It’s hard to fix a mailer that’s already been sent out,” he said. “That bell’s already been rung.”

Randy Bernard, First Assistant U.S. Attorney for the Northern District of West Virginia, also said that his agency was not permitted to confirm or deny the existence of an investigation. However, he indicated that the situation involving the recent mailers in Wheeling would likely fall under the jurisdiction of the Secretary of State’s office.

“Even a false P.O. box use would not necessarily create a violation of mail fraud or trigger an investigation by the feds,” Bernard said, explaining that the federal offense of mail fraud would have to involve a scheme to defraud someone of property rights, money or other possessions.

Ohio County Chief Assistant Prosecutor Shawn Turak on Thursday said that at this point, there apparently has been no solid determination about the source of the mailers.

“If I had an agency investigating that could provide probable cause, or at minimum, information as to who is behind this … we could consider prosecuting a case,” she said, noting that no perpetrator has been named and no investigation has referred a case to their office. “Clearly no one is going to step forward and take responsibility for it.”

Turak said if libel is involved – if the content of the paraphernalia contains what may be considered “malicious defamation” or “knowingly false claims” about a person — there could be civil remedies.

Until then, “someone out there is apparently having a jolly laugh,” Turak said.