A Victory With an Expiration Date

There is a particular kind of cheer that goes up on our side of the aisle when a court declines to stop something we wanted. It went up this week. The Supreme Court let the administration's mail-in voting order proceed, Justice Jackson filed twenty-three pages of dissent warning of election chaos, and by lunchtime half the movement had declared the ballot wars over.

They are not over. And the way this one was won should bother conservatives more than it does.

Start with the part I will defend without flinching. The case against mass mail balloting is a good one, and it has never depended on anybody proving a conspiracy. It rests on something duller and more durable: a ballot that travels unsupervised through a chain of hands is a ballot nobody can audit after the fact. You cannot re-run a secret election. Chain of custody is not a paranoid demand, it is the ordinary standard we apply to evidence, to prescriptions, to firearms transfers, and to every other object where we care more about certainty than convenience.

A rule that arrives by executive order leaves by executive order, and it never once has to survive an argument.

Justice Jackson's dissent, as Fox News reports, warns that the order invites chaos into the administration of an election. Take that seriously for a second, because it is the strongest thing the other side has: changing the machinery of voting close to an election really does produce confusion, and confusion really does suppress turnout among people who did nothing wrong. That is a genuine cost. It is not a trump card, but it is not nothing, and pretending otherwise is how you lose independents.

Here is where I part company with the celebration. Article I, Section 4 of the Constitution is not ambiguous, and it is not long. The times, places and manner of holding elections are prescribed by the legislature of each state, and Congress may alter those regulations. Read that list twice and notice who is missing from it. The President is not on it. He was left off on purpose, by men who had recently finished a war with an executive who thought the rules of representation were his to set.

Conservatives spent the better part of two decades explaining this to anyone who would listen. We explained it about the pen and the phone. We explained it about student loans. We explained it about eviction moratoriums. The argument was never that the underlying policy was always wrong. The argument was that the Constitution assigns the job to somebody else, and that assignment does not go away because the current occupant agrees with us.

It does not go away now. A rule that arrives by executive order leaves by executive order, and it never once has to survive an argument. Whatever was written this year can be unwritten in a single afternoon by the next administration, with no hearing, no floor vote, and no state legislator ever having to explain himself to the people who elected him. That is not a victory. That is a lease.

The durable version of this fight is unglamorous and it happens in statehouses. It looks like voter roll maintenance that survives a lawsuit. It looks like signature verification standards written into statute instead of guidance. It looks like legislators putting their names on a bill and defending it at a town hall where somebody is angry. Every one of those is harder than a signing ceremony. Every one of them is also still standing in January of whatever year the pendulum swings back.

So take the ruling. It is better than the alternative, and there is no virtue in refusing a favorable outcome. But hold it loosely, and get to work on the version that lasts. The Constitution already told us which door to use. We spent twenty years insisting the other side walk through it. We do not get to prop it open only when the wind is at our back.