Trump Administration Appeals Mail Voting Changes as Midterms Near; Diesel Prices Reach Record High
Late Tampering With the Ballot Is Power Without Consent
An executive that seeks to change election rules on the eve of voting, without the states’ clear assent, does not administer the law; it attempts to rule without consent, which is usurpation by any honest name.
That a nation should learn, on the very eve of its midterm elections, that its chief magistrate’s administration has hurried to its highest court to alter the manner of mail voting, is a circumstance that deserves a cooler examination than the moment will willingly bear. I am told the appeal was filed the afternoon before one state was to send out its ballots, beginning a general dispatch of ballots across the country. I am told also that a dozen states appeared in the suit to argue that this administration has the right to require a certain program, yet none of them has announced that it has voluntarily chosen to adopt it. These few facts, though thin, are enough to fix the question: what sort of power is here claimed?
When I wrote in the Second Treatise that political power is the right to make laws, with penalties, only for the public good, I meant to distinguish such lawful rule from the bare force any man may use in a state of nature. Men, being by nature free, equal, and independent, can be subjected to political power only by their own consent, given for the protection of their lives, liberties, and estates. The rules by which they choose their governors, and by which they confer and withdraw that trust, belong therefore to the very heart of their property in the commonwealth. To touch these rules is not a small technical thing; it is to lay hands on the people’s original right of choosing those who will bind them by law.
Judged by this measure, the first consideration is consent. The report before me says that none of the twelve states which have intervened to defend the administration’s claimed authority has declared that it freely opts into the program the administration would require. If this be so, then the authority asserted is not derived from these states’ voluntary agreement, but is pressed upon them. The burden of proof, in any such case, lies on the side of power, not liberty. It is for the administration to show by what title it may command the manner in which states use the mails for elections, when those same states have the admitted primary authority over the conduct of elections.
The second consideration is the nature of the right at stake. Voting is not a mere convenience, like the price of carriage or the choice of a market-day. It is the instrument by which a free people institutes its legislative, and so secures itself against that very arbitrary power which tempts all rulers. To alter the conditions of that choice at the last hour, when ballots are ready to be sent, is to risk confusion, unequal access, and the practical disfranchisement of some portion of the people. The law of nature, which is but reason teaching all who will consult it, forbids that one man should harm another in his life, health, liberty, or possessions. To place needless obstacles in the way of a citizen’s share in the supreme power of making the law is plainly to wound his liberty.
Thirdly, there is the question of timing and prerogative. I have elsewhere allowed that in emergencies there is sometimes need of prerogative, that is, a power to act for the public good without a precise rule, and even against the letter of some rule, where the delay of formal order would ruin all. But I added that such prerogative is held entirely on trust, and endures only so long as it visibly serves the public good and remains revocable. An appeal made in haste to change the mode of voting, at the instant when ballots are about to be sent, and without clear evidence that the states desire or the people need this change, wears more the face of a governor shaping the electorate to his own advantage than of a faithful trustee rescuing the public from imminent harm.
It will be said, perhaps, that the courts, and especially the supreme court, are erected precisely that such disputes may be judged, and that to ask their decision is not usurpation but lawful process. I grant that an impartial judge is one of the chief blessings of civil society, and far to be preferred to each side’s being a judge in his own case. Yet the character of the act does not depend solely on the form of its presentation. If the executive uses the forms of law to grasp a power over elections that was never committed to it, then the suit is but the instrument of that design. In such a case it belongs to the court, if it would remain an impartial arbiter and not an accomplice, to refuse the new power, and to leave the rules of choosing rulers where the constitution and the people first put them.
Lastly, I am told that, in the same hour’s news, the price of diesel fuel has reached a new high. This is doubtless a great burden to many who live by carriage and trade, and indirectly to all who must buy what is carried. Yet high prices, though evils, are not in themselves proofs of a breach of political trust, unless it be shown that rulers have by some particular act invaded the people’s property, or destroyed the conditions under which there is enough, and as good, left for others. An unwise policy may be a fault; a deliberate alteration of election rules at the last moment, without manifest consent and public necessity, approaches a different name. That name, in plain speech, is usurpation, and the proper answer to usurpation is a firm refusal to obey it.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — Government by consent and majority decision, with the legislative supreme but itself bound: a fiduciary power, held on trust, forfeited by breach.
- Second Treatise of Government — Prerogative as revocable emergency discretion — legitimate exactly as long as the public visibly benefits and no longer.