Good Decision, Bad Law and the Election

 

The Supreme Court has effectively let Virginia state officials remove ~1,600 ineligible voters from their rolls by staying a lower court decision that barred it. The case is more of note for its “meta” meaning, than for its factual rectitude. The state had removed a number of ineligible voters before it got to this last tranche, but by the time the state got to the purge of these voters, it allegedly ran afoul of a federal statute limiting mass actions within a 90-day “quiet” period before the election. The decision does not address the merits of the case. Leaving to legal scholars to explain why lifting a stay pending appeal is or is not appropriate in this case, the net result is that the State of Virginia will now bar these individuals from casting a vote on November 5.

Assuming, as Virginia has asserted, that these are ineligible voters, the outcome is just. But it is also possible that the decision may involve a misapplication of prior precedent. That will be argued when the case is heard, if ever, by the Supreme Court. The American legal system is based on the English system of stare decisis. This system — requiring a judge to follow earlier precedence for an orderly application and development of law — is at the core of legal predictability. And legal predictability is essential to a high-trust society, where people can expect that when trust is broken there is a predictable and estimable consequence that the law will impose.

But there is a trap embedded in stare decisis: if a truly unjust decision is rendered by a court whose decisions must be respected by inferior courts, then the poison of injustice will flow through the system unless remedied by that court overturning the earlier unjust decision. I believe this was at the core of Alexandre Solzhenitsyn’s criticism embedded in his 1978 commencement address at Harvard:

Western society has given itself the organization best suited to its purposes based, I would say, on the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in interpreting and manipulating law. Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required. Nobody will mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk. It would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames.

***

Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses. And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure.     [Emphasis added]

In other words, defining justice legally is not the same as defining justice morally. Courts render legal, not moral judgments. For this reason, the more something falls into a matter of import for the public’s moral judgment, the more reluctant the courts are to render a legal decision. In truth, whenever a court is willing to render a legal decision with moral issues in broad dispute within the public, we tend to think of the court as overstepping its role if the decision runs counter to our own moral judgment.

Does election law have a moral component? I would argue that it does. I cannot think of a more definitive moral statement than the following:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. Such has been the patient Sufferance of these Colonies; and such is now the Necessity which constrains them to alter their former Systems of Government.

Election law, if it accomplishes anything, must implement the “consent of the governed” — the right of the people to alter or abolish old forms and institute new forms effecting their safety and happiness. Our Constitution acknowledges that the title deed to America is held by American citizens. “The right of citizens of the United States to vote shall not be denied or abridged” appears in multiple places of the Constitution, most often as it corrected earlier limits on the identity and status of adult citizens to cast votes.

The totality of election laws is a bit of a thicket, full of age limitations, birth tourism, loss of eligibility through criminal convictions, etc. Solhzenitsyn’s tension between legalism and morality asserts itself in this space. It is easy to say that the citizens of a country are entitled to decide who will govern them; it is harder to define how citizenship is obtained and documented and to decide how to distribute the benefits and obligations of citizenship amongst the totality of a population resident within defined boundaries. The former is the moral reality, the latter is the legal reality.

I don’t know of any election in my lifetime where a more basic moral principle is in play: Will we have a government reflecting the consent of the governed by those individuals who are entitled to render that consent? Superficially the Virginia decision upholds this moral principle (to which our current federal government now stands in opposition) and, for the moment, the Court has not rendered a legal decision inconsistent with this moral principle. But there will be many cases to come. The Court will bob and weave as it did in 2020-2021 to avoid making a legal judgment on this profoundly moral question.

This is Sohlzenitsyn’s paradox: High-trust societies exist on both a moral and a legal foundation. But when that which is legal overwhelms that which is moral, a high-trust society devolves into a low-trust society.

We cannot and should not ask the Court to save us because its judgments are not salvation. They are simply bricks laid side by side and fashioned as closely as they can to conform to the edges of earlier bricks. This forms a path that follows only the bricks’ design, without regard to any destination. It is only our moral senses that will deliver us to a proper destination. Do we have the moral strength to do so?

Published in General
This post was promoted to the Main Feed at the recommendation of Ricochet members. Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

There are 31 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    Since it would be illegal for these people to vote, I think we should say the “registrants were removed” rather than say “voters were removed”. 

    • #1
  2. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Is there a moral factor involved regarding the illegals? I don’t quite understand why rulings should be so complicated. They are not entitled to vote, according to the Constitution. Where does morality come in?

    • #2
  3. Red Herring Coolidge
    Red Herring
    @EHerring

    Non -citizens can’t be called voters in federal elections because they can’t legally vote. Every one that votes cancels out a legal vote made by a citizen. Sure there can be mistakes, but the first mistake was made by any citizen who checked the wrong box. Anyone wrongfully purged can cast a provisional ballot and return with proof of citizenship to ensure their ballot is then counted. Crooked Dems have been registering noncitizens to vote and telling them they can vote. I suspect these are the folks Dems are really trying to protect.  Youngkin signed the order before it was inside 90 days and ineligible voters canned be prevented from voting. Every person eliminated was identified by a computer as having checked they weren’t citizens. I suspect few of the people on the list will self identify since it was illegal for them to be registered. 

    • #3
  4. John Park Member
    John Park
    @jpark

    Reports have it that the people at issue were self-identified as unable to vote legally.

    • #4
  5. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    John Park (View Comment):

    Reports have it that the people at issue were self-identified as unable to vote legally.

    That’s what I read, too, John.

    • #5
  6. The Reticulator Member
    The Reticulator
    @TheReticulator

    Rodin: Do we have the moral strength to do so? 

    Excellent article of great importance, but I’m a bit troubled by the word “strength” in your closing question.  It might get confused with “might,” as in “might makes right.”  

    How about the term “moral suasion” instead?  

    • #6
  7. Rodin Moderator
    Rodin
    @Rodin

    Susan Quinn (View Comment):

    Is there a moral factor involved regarding the illegals? I don’t quite understand why rulings should be so complicated. They are not entitled to vote, according to the Constitution. Where does morality come in?

    As I tried to state in the OP the moral issue is one of ownership and respect for the rights of ownership. But when legal cases start parsing through how you identify an owner or their exercising property rights with impact on the “common good” things get complicated. And there is an interesting tension be being “governed” and having citizenship. Basically the Democrats of today are saying if you are governed you should be able to vote. And it is true that someone in the country is “governed” by our laws (with specific rules for those with diplomatic immunity). But the constitution says that citizens decide the makeup of our government, not simply residents. But the constitution says little about how you define a citizen, the age at which they can vote even if a citizen, etc. That’s why making it illegal to demand ID’s to vote de facto makes the voting eligibility based on governance, and not citizenship. Of course fiddling with tallies and running ballots through multiple times is a different order of perverting our laws totally aside from the identity of the voter.

    • #7
  8. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Rodin (View Comment):
    Basically the Democrats of today are saying if you are governed you should be able to vote.

    I think this is the crux of the issue. I think it’s the Dems manipulating the intention of the law. I personally think citizenship requirements are clear. Being a resident is clear. And I think rather than blaming the Constitution, Dems don’t want voter ID because their potential constituency will lose out on the right to vote. But what do I know…

    • #8
  9. Hoyacon Member
    Hoyacon
    @Hoyacon

    FWIW, Virginia has same day registration to vote.  If one is improperly removed from the rolls, an eligible person can “reregister” and cast a vote.

    • #9
  10. Hoyacon Member
    Hoyacon
    @Hoyacon

    I have little doubt that the SCOTUS majority, in Roe v. Wade, felt that it was rendering a moral decision at the time.  In fact, when one considers the massive amount of criticism the decision received from legal scholars, it’s quite possible to argue that the case was almost exclusively based on the majority’s concept of morality, with the legal underpinnings crafted around that.  Would a “legalistic structure” have served us better had it been followed?

    • #10
  11. OldPhil Coolidge
    OldPhil
    @OldPhil

    Susan Quinn (View Comment):

    John Park (View Comment):

    Reports have it that the people at issue were self-identified as unable to vote legally.

    That’s what I read, too, John.

    And they were given multiple opportunities to correct it if they made a mistake. They didn’t do that.

    • #11
  12. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    I don’t agree with the morality of the Declaration of Independence.  I find it to be quite evil.  It is contrary to Christian morality and the teaching of the New Testament about both the purposes of government and the permissibility of rebellion.  It was written by a man with the temerity to cut up the New Testament with a razor — literally — and paste the parts that he liked in a separate book, leaving the remainder on the cutting room floor.

    I would look to Jesus for statements of moral clarity.  Such statements would not reflect favorably on our country.

    • #12
  13. kedavis Coolidge
    kedavis
    @kedavis

    Jerry Giordano (Arizona Patrio… (View Comment):

    I don’t agree with the morality of the Declaration of Independence. I find it to be quite evil. It is contrary to Christian morality and the teaching of the New Testament about both the purposes of government and the permissibility of rebellion. It was written by a man with the temerity to cut up the New Testament with a razor — literally — and paste the parts that he liked in a separate book, leaving the remainder on the cutting room floor.

    I would look to Jesus for statements of moral clarity. Such statements would not reflect favorably on our country.

    Hmm, isn’t someone with that attitude violating the oath taken to be a lawyer?

    • #13
  14. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    Jerry Giordano (Arizona Patrio… (View Comment):
    I don’t agree with the morality of the Declaration of Independence.  I find it to be quite evil. 

    That’s a hot take.   You should do a post on this, because it needs some ‘splainin.

    • #14
  15. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    We have a news story out of Ann Arbor, MI.   A Chinese college student took advantage of same day registration and voted in person.   Afterwards it was determined he was not a citizen and therefore not eligible to vote.  Of course, the ballot is in the system and will be tallied with the others.  Democrats suck, because they create systems that promote fraud.

    • #15
  16. kedavis Coolidge
    kedavis
    @kedavis

    DonG (CAGW is a Scam) (View Comment):

    We have a news story out of Ann Arbor, MI. A Chinese college student took advantage of same day registration and voted in person. Afterwards it was determined he was not a citizen and therefore not eligible to vote. Of course, the ballot is in the system and will be tallied with the others. Democrats suck, because they create systems that promote fraud.

    Aren’t provisional ballots supposed to be kept separate until validated?

    • #16
  17. Old Bathos Member
    Old Bathos
    @OldBathos

    I thought that a “mass action” was something like making everyone re-register, changing all voting locations or changing rules on signatures or IDs. The DOJ idea that the law bars identification of and action against particular, identified bogus registrations that manage to go undetected until 90 days before or which are created within the last 90 days was a stretch and an overt endorsement of fraud.

    Recall that in 2000 in Wisconsin, it was discovered by a city police investigation that there were over 3,000 bogus last minute registrations from the fact that the little confirmation postcard from the government were returned as no such person/no such address in all those instances. How many more of those cards were just tossed in the trash by people unaware of why their address was used or ignored by actual fraud perpetrators. How many voted? Gore won the state by 5,000 votes. I believe it was stolen.

    The DOJ, by trying to use federal law to bar any action against late creation (or detection) of bogus regulations in VA was intentionally attempting to create a 90-day safe harbor for massive fraud. The only “remedy” would be to remove the bogus entries after the election (assuming an anti-fraud government is elected) to make the fraudsters to have to cheat from scratch next time.

     

    • #17
  18. Nathanael Ferguson Contributor
    Nathanael Ferguson
    @NathanaelFerguson

    Hoyacon (View Comment):

    FWIW, Virginia has same day registration to vote. If one is improperly removed from the rolls, an eligible person can “reregister” and cast a vote.

    I was going to say the same but you beat me to it. 

    • #18
  19. Nathanael Ferguson Contributor
    Nathanael Ferguson
    @NathanaelFerguson

    Jerry Giordano (Arizona Patrio… (View Comment):
    I would look to Jesus for statements of moral clarity.  Such statements would not reflect favorably on our country.

    That’s rich since you referred to Thomas Jefferson cutting out the words of Jesus from the NT in order to have a book solely of Jesus’ words available. 

    • #19
  20. Red Herring Coolidge
    Red Herring
    @EHerring

    Rodin (View Comment):

    Susan Quinn (View Comment):

    Is there a moral factor involved regarding the illegals? I don’t quite understand why rulings should be so complicated. They are not entitled to vote, according to the Constitution. Where does morality come in?

    As I tried to state in the OP the moral issue is one of ownership and respect for the rights of ownership. But when legal cases start parsing through how you identify an owner or their exercising property rights with impact on the “common good” things get complicated. And there is an interesting tension be being “governed” and having citizenship. Basically the Democrats of today are saying if you are governed you should be able to vote. And it is true that someone in the country is “governed” by our laws (with specific rules for those with diplomatic immunity). But the constitution says that citizens decide the makeup of our government, not simply residents. But the constitution says little about how you define a citizen, the age at which they can vote even if a citizen, etc. That’s why making it illegal to demand ID’s to vote de facto makes the voting eligibility based on governance, and not citizenship. Of course fiddling with tallies and running ballots through multiple times is a different order of perverting our laws totally aside from the identity of the voter.

    If citizenship rights are bestowed by merely being in a place then citizenship is cheapened. Can they get a passport? 

    • #20
  21. Red Herring Coolidge
    Red Herring
    @EHerring

    Hoyacon (View Comment):

    I have little doubt that the SCOTUS majority, in Roe v. Wade, felt that it was rendering a moral decision at the time. In fact, when one considers the massive amount of criticism the decision received from legal scholars, it’s quite possible to argue that the case was almost exclusively based on the majority’s concept of morality, with the legal underpinnings crafted around that. Would a “legalistic structure” have served us better had it been followed?

    We had a legal understanding until Democrats corrupted it. 

    • #21
  22. Red Herring Coolidge
    Red Herring
    @EHerring

    Jerry Giordano (Arizona Patrio… (View Comment):

    I don’t agree with the morality of the Declaration of Independence. I find it to be quite evil. It is contrary to Christian morality and the teaching of the New Testament about both the purposes of government and the permissibility of rebellion. It was written by a man with the temerity to cut up the New Testament with a razor — literally — and paste the parts that he liked in a separate book, leaving the remainder on the cutting room floor.

    I would look to Jesus for statements of moral clarity. Such statements would not reflect favorably on our country.

    Perhaps you should address what particular sentence you have a problem with.  As to Jefferson’s weird inclinations in his private life, I put more weight on his words penned on paper that framed a theory of governance unique in human history. 

    • #22
  23. Red Herring Coolidge
    Red Herring
    @EHerring

    DonG (CAGW is a Scam) (View Comment):

    We have a news story out of Ann Arbor, MI. A Chinese college student took advantage of same day registration and voted in person. Afterwards it was determined he was not a citizen and therefore not eligible to vote. Of course, the ballot is in the system and will be tallied with the others. Democrats suck, because they create systems that promote fraud.

    He should be shipped home. 

    • #23
  24. Red Herring Coolidge
    Red Herring
    @EHerring

    Old Bathos (View Comment):

    I thought that a “mass action” was something like making everyone re-register, changing all voting locations or changing rules on signatures or IDs. The DOJ idea that the law bars identification of and action against particular, identified bogus registrations that manage to go undetected until 90 days before or which are created within the last 90 days was a stretch and an overt endorsement of fraud.

    Recall that in 2000 in Wisconsin, it was discovered by a city police investigation that there were over 3,000 bogus last minute registrations from the fact that the little confirmation postcard from the government were returned as no such person/no such address in all those instances. How many more of those cards were just tossed in the trash by people unaware of why their address was used or ignored by actual fraud perpetrators. How many voted? Gore won the state by 5,000 votes. I believe it was stolen.

    The DOJ, by trying to use federal law to bar any action against late creation (or detection) of bogus regulations in VA was intentionally attempting to create a 90-day safe harbor for massive fraud. The only “remedy” would be to remove the bogus entries after the election (assuming an anti-fraud government is elected) to make the fraudsters to have to cheat from scratch next time.

     

    The only cure to the feds enforcing a 90 day law is to pass a state law forbidding new registrations inside 90 days. 

    • #24
  25. John Park Member
    John Park
    @jpark

    From Fox News this morning:

    A Chinese national student voted illegally in Michigan, can be prosecuted but vote counts

    • #25
  26. kedavis Coolidge
    kedavis
    @kedavis

    No, really, Aren’t provisional ballots supposed to be kept separate until validated?

    • #26
  27. Rodin Moderator
    Rodin
    @Rodin

    kedavis (View Comment):

    No, really, Aren’t provisional ballots supposed to be kept separate until validated?

    They are, but the story from Michigan did not involve a provisional ballot. The Chinese student walked in and cast a recorded vote. He later decided he should try to cancel it and self-reported. It couldn’t be canceled after the fact. A provisional ballot can be issued when there is a question whether a vote has already been cast or not (IIRC) and held until what can be discovered about the earlier vote’s existence. 

    • #27
  28. kedavis Coolidge
    kedavis
    @kedavis

    Rodin (View Comment):

    kedavis (View Comment):

    No, really, Aren’t provisional ballots supposed to be kept separate until validated?

    They are, but the story from Michigan did not involve a provisional ballot. The Chinese student walked in and cast a recorded vote. He later decided he should try to cancel it and self-reported. It couldn’t be canceled after the fact. A provisional ballot can be issued when there is a question whether a vote has already been cast or not (IIRC) and held until what can be discovered about the earlier vote’s existence.

    The first mention was that he did same-day registration, but if he didn’t have proof of citizenship at the time, why wouldn’t his vote have been provisional?

    • #28
  29. Rodin Moderator
    Rodin
    @Rodin

    kedavis (View Comment):

    Rodin (View Comment):

    kedavis (View Comment):

    No, really, Aren’t provisional ballots supposed to be kept separate until validated?

    They are, but the story from Michigan did not involve a provisional ballot. The Chinese student walked in and cast a recorded vote. He later decided he should try to cancel it and self-reported. It couldn’t be canceled after the fact. A provisional ballot can be issued when there is a question whether a vote has already been cast or not (IIRC) and held until what can be discovered about the earlier vote’s existence.

    The first mention was that he did same-day registration, but if he didn’t have proof of citizenship at the time, why wouldn’t his vote have been provisional?

    Because they didn’t require it. Michigan.

    • #29
  30. Rodin Moderator
    Rodin
    @Rodin

    It has begun. Supreme Court does good in Virginia, not so much in Pennsylvania. The courts are not going to save us.

    • #30
Become a member to join the conversation. Or sign in if you're already a member.