Court Blocks Trump Mail Voting Restrictions

Someone is being paid for a legal manoeuvre that produces no ballot, delivers no service, and educates no voter. Donald Trump’s litigation against the postal voting rules, dismissed now by the First Circuit sitting in Boston, was not an investment in the machinery of democracy; it was an attempt to extract a private advantage from the delay, expense, and uncertainty that litigation itself can manufacture. What function, precisely, does such a suit perform? It is worth asking, because the question is normally reserved for rent and dividend and asked too rarely of law.

The Acquisitive Society, as I have called it elsewhere, does not confine itself to factories and finance. It has its legal wing too, in which the resources to sustain a case through appeal become a form of capital in their own right, capable of yielding a return quite apart from the merits of the claim. The US Postal Service exists to perform a function that is almost embarrassingly plain: to carry the ballot from the citizen’s hand to the counting board, reliably and without discrimination among persons. That is its service, and it is a real one, tested and vindicated by the appellate judges who found no case for restricting it before the midterm elections. The suit against it, by contrast, produced nothing that a society requires. It did not enfranchise a single voter more securely, nor make the count more honest, nor the Postal Service more efficient. Its plausible function was rather the opposite: to raise the cost, in time and doubt, of exercising a right that the law otherwise makes free.

Here the equality of worth to which I have devoted some attention becomes concrete rather than abstract. A postal worker sorting absentee ballots in the weeks before an election performs a service whose value does not depend on who casts the vote or how. A litigant with the resources to carry an unsuccessful claim to the First Circuit performs no comparable service; he purchases, at most, delay and headline, and these are not negligible commodities in a contested season, but they are not functions either. The court in Boston, in refusing him, was not merely applying precedent; it was, without using my vocabulary, applying something very like my test. It asked what the restriction would accomplish and found the answer to be nothing that the electoral system did not already provide for.

I do not say the appeal was cynical; men convince themselves of much. But the structural point survives motive. Litigation of this kind, when it fails to identify any genuine defect in the machinery it attacks, functions as a toll gate erected on a public road, collecting a payment in confusion from travellers who have every right to pass freely. The court has, this time, torn the gate down before November.