When the Government loses the "Presumption of Regularity"
Do the government lawyers get the benefit of the doubt?
What is the “Presumption of regularity”?
The “presumption of regularity” is a legal term describing when a court gives the government’s lawyers the benefit of the doubt unless proven to the contrary. This involves trusting that the government lawyers are telling the truth when they file a motion or speak in court.
With cases like the Oregon DOJ Voter Lawsuit, a judge withheld this benefit of the doubt.
Follow up: Brandolini’s Law
Brandolini’s law (or the bullshit asymmetry principle) is an Internet adage coined in 2013 by Italian programmer Alberto Brandolini. It compares the considerable effort of debunking misinformation to the relative ease of creating it in the first place. The adage states:
The amount of energy needed to refute bullshit is an order of magnitude bigger than that needed to produce it.[1][2]
In an example of Brandolini’s law during the COVID-19 pandemic, Jeff Yates, a disinformation journalist at Radio-Canada, described the experience of debunking a popular YouTube video spreading COVID-19 medical misinformation presented by a pineapple importer: “He makes all kinds of different claims. I had to check every single one of them. I had to call relevant experts and talk to them. I had to transcribe those interviews. I had to write a text that is legible and interesting to read. It’s madness. It took this guy 15 minutes to make his video and it took me three days to fact-check.”[9]
What happens when the presumption of regularity meets brandolini’s law?
Tim’s explanation: The court stops giving the government lawyers the benefit of the doubt so that the plaintiff’s lawyers face a less asymmetric challenge of refuting their claims.
California Governor’s Race
In the the case of Butch Ware, the candidate for Governor was knocked out of the race by a false allegation that his paperwork wasn’t properly redacted. This claim was was reported to his campaign by email ten minutes before the deadline. Ware was able to appeal, whereupon a judge found the redaction claim against him baseless, but the Democrats said the ballots had already been printed without his name on them.
I don’t know if the Democrats were malicious in knocking Ware off the ballot, but I have enough suspicion to make me think the immediate remedy should be to reprint the ballots. And besides, was the the alleged error — not redacting your phone number — so severe as to warrant knocking a contender out of the race. Ware’s appeal found that all information was properly redacted. It was just a false alarm.
There’s a saying that it is better to exonerate 9 guilty men rather than to wrongfully convict 1 man.
A similar principle would be: where mischief is suspected, or the error was made by the government, it is better to print a new ballot than leave stand the appearance of alleged wrongdoing.
To require candidates to unnecessarily overcome this type of potential law-fare undermines the legitimacy of the electoral process and results in some voters concluding electoral politics is rigged. If we don’t want that to be the case we need to make the current system work.
QUESTIONS:
This loss of the “presumption of regularity” has only occurred in a small number of cases. How broadly do you see it being applied in the next few years?
How pervasively do you see this loss of trust affecting trust in other institutions?
How long will it take for the Department of Justice to regain the courts’ trust?
ELSEWHERE:
Wikipedia definition