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Reply #48: The burden of proof is NOT on us [View All]

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pat_k Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-02-05 11:18 AM
Response to Original message
48. The burden of proof is NOT on us
Edited on Fri Dec-02-05 11:42 AM by pat_k
We must stop falling into the trap that the burden of proof is on us.

From autorank above:

as Land Shark says, the elected need to prove their legitimacy by showing us they were, in fact elected.


In the above, "the elected" could be misconstrued to mean the "wnning" candidate. We need to be clear. Elected and appointed officials (any tools of the state) must conduct elections in a manner that instills confidence.

In the event that reasonable doubts about an election are established (and, as the original post illustrates, reasonable doubts are very easy to establish), the burden of proof shifts to the state. Election officials must take the actions deemed necessary to eliminate the doubt. The logic is inescapable. See Burden of Proof in an Election.

Dysfunctional thinking about our elections has been infecting us -- and has gone largely unchallenged -- for too long.

A vast majority of us (me included) have had our thinking about our elections muddled by all sorts of wrong-headed assumptions and rationalizations. Reasoning from first principles is only way through the quagmire.

The cool thing is that when you internalize a few simple truths and moral principles, rationalizations start falling apart pretty fast. You can back naysayers into a corner from which they cannot escape. It doesn't require a lot of detail -- in fact detail is counter productive. No need to haul out volumes of evidence that our last two Presidential Elections were stolen.

People reject secret vote counting as a matter of principle no convincing needed. Rejecting DREs as secret vote counters is not much of a stretch.

Discriminatory treatment alone is sufficient to invalidate an election.

We need to pose simple questions (e.g., "Are hours-long poll-tax-lines for poor, minority voters AND none for affluent, white voters a tolerable condition for you?" or "Can we tolerate secret vote counting?").

A couple other examples:

Rationalization: If the results declare a winner by a large margin, unless you can prove the number of votes that were suppressed exceeds the margin of victory, the problems fall "outside the zone of litigation."

Challenge: If you accept this notion -- that allegations of vote suppression can be dismissed when a state has declared a winner by a large margin -- then you accept the notion that some of our states (particularly those in the South where official margins are often very large) can engage in massive vote suppression with no risk of consequence. The official (o-fishy) results of statewide elections in Mississippi are usually 60% Rep / 40% Dem (since this mirrors almost precisely the white/black breakdown of the population, there are apparently no white Democrats in the state). As long as conventional wisdom buys the "outside the zone of litigation" notion, election officials throughout the state of Mississippi can rest assured that they'll never face serious scrutiny. Of course, this is an absurd position. No matter what the margin of victory, the results of a discriminatory election must be rejected. Disparate treatment of voters alone is sufficient to invalidate an election.

Rationalization: We are trapped and limited by the "letter of the law" ("They have all the judges" or "A contest must be resolved by an arbitrary deadline, or it becomes irrelevant.").

Challenge: We the People, through our representatives, have defined our election laws to ensure that election results reflect OUR will. If, in any state, there is a reasonable doubt that the election results reflect the will of the voters, and application of the law fails to provide a remedy that eliminates the doubt, then We the People must demand a political remedy; one that trumps all legalisms and cynical misuse of our courts. See "Burden of Proof in an Election" at http://thedeanpeople.com/election2004_burden_of_proof.h... .

There are no deadlines in the law. The dates we specify for completion of certain actions are moved as a matter of course. Like everything in the law, actions are dictated by a "balance-of-interests" test that must be grounded in the values embodied in our constitution. The right of the People to have confidence that they are being afforded free and fair elections for their government officials is a right that no other consideration can supersede. When rigid adherence to a deadline would destroy the public's trust in the integrity of an election, the balance-of-interests test would demand an extension.

The law is intended to serve our will, not thwart it. We can never again allow a "technical" or "legal" argument trump reality as we did in the Presidential Elections of 2000 and 2004.

Rationalization: The candidate conceded.

Challenge: So what. The people are the real stakeholders in an election. The public has a right to have confidence that their elections reflect their will. It doesn't matter what the candidates think.
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