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?