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Culture War Roundup for the week of October 21, 2024

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Actually you lead me to something I've thought for quite a while in the 2020 aftermath -- the way that courts require proof of fraud that turned the election directly led to the low quality of some of the Trump campaign's lawsuits. If you are expected to prove not only that there was fraud against you, but also that the fraud amounted to at least some specific number of votes, unless you have significant cooperation from the folks counting the ballots (hint: Trump did not) your only play is to throw everything you have at the wall and hope that enough votes are found to stick.

It is a bit a structural trap, yes. By requiring the standard of impact to raise to 'outcome determinative', it prohibits the sort of indicators that would normally be pursued to identify/recognize outcome-determinative fraud, while at the same time systemically encouraging weaker, and thus easier to dismiss, expansive-but-weaker claims whose dismissal can be used to justify claims of no fraud. Defenders can point to the dismissal of unfounded accusations as proof that there is no basis of accusation to warrant further examination, while ignoring that the scoping of acceptable arguments gerrymandered what would be investigated from the start.

In metaphorical terms, this is the equivalent of demanding proof that most of an iceberg is below the waterline, and then only reviewing reports from the people who then claim to have seen underneath the water from an impossible distance.

Yes, it was impossible for them to have seen the things they claimed. No, disproving their claim of having seen underneath the water does not actually disprove whether there was an iceberg. You've already filtered out the people who would only claim to have seen the tip of the iceberg. This procedural hurdle works because the requirements smuggled in a change of argument centered around the already-filtered observers, and from a position that starts from a presumption of negation (there is no reason to believe the existence of something not already observed), rather than precaution driven by the nature of the observed (the nature of floating ice is that the majority will be beneath the surface, regardless of whether the underwater mass is observed or not).

From a legal system built on a presumption of innocence, that approach may make sense. But the threat of an iceberg comes from the nature of the thing, not the characterization of the observer of the hard to observe bits. If you steer a ship on the principles of 'harmless until proven sufficiently harmful,' you are going to sink a lot of ships, and certainly more than if you didn't have such a high bar on sufficient proof of sufficient harm.

This is far from the only context where this sort of standard would be detrimental. There are plenty of contexts where the signature of something is far more detectable and demonstratable than the following force that effects. Dismissing the signatures because the signatures themselves are not sufficient force is just ignoring the signals.