Hacker News Reader

Comment by bsamuels | Hacker News Reader

This is actually a fascinating read, despite the disappointing decision.

This section really resonates:

> It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?”

View on HN

That's Roberts writing?

"It is not even clear what fairness looks like in this context."

Except it IS clear what unfairness looks like, and it's this.

“How much is too much?”

This, what they are doing right hear right now, this is too much. I have to assume it's obvious to the majority here and they know what they're doing.

Kagan's dissent is great and finishes with this which REALLY resonates with me:

"Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. "

I think the decisions' example is pretty telling. Does every voter have a right to a competitive election in their district, so that their vote matters at least potentially? Or does every voter have a right to their political party getting representation at least approximately equal to their share of the electorate? Those two both sound good, and they point in opposite directions.

So, it's not a question of what the law says, it's a question of _values_, of what the law _should_ say. You could argue either side of that, but saying that the Constitution or precedents give a clear guideline for a judge to use in deciding it, is not tenable.

Let's say the courts decided to intervene here. What standard should they give? "If it seems really unfair, strike it down?" What looks really unfair to a Democratic-appointed judge is going to be different than what looks really unfair to a Republican-appointed judge.

Except that courts do weigh get asked to weigh in murky situations and come out with a ruling all the time, which is the reason they exist.

As Ruth Bader Ginsburg said recently, "However one comes out on the legal issues, partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa."

https://talkingpointsmemo.com/edblog/ruth-bader-ginsburg-par...

No, the reason they exist is to rule on what the law says, even in very murky situations. But I have read no credible case that there is any statement in the Constitution or elsewhere, which they could go by to determine the standard here.

The fact that RGB says "However one comes out on the legal issues..." looks like evidence that, at some level, she knows there's not a legal argument here to arrive at the right result. Because the right result is surely to not do things the way we do now. Probably, some kind of multi-rep district system is the right solution. But, that's not a thing the courts can fix, or should attempt to, and they know it.

> Does every voter have a right to a competitive election in their district, so that their vote matters at least potentially? Or does every voter have a right to their political party getting representation at least approximately equal to their share of the electorate? Those two both sound good, and they point in opposite directions.

No, they don't, unless you view sigle-member districts as mandatory; the fact that sigle-member districts (or, rather, any winner-take-all districts in states with more than a single seat) make essential elements of fairness incompatible reveals that such districts are problematic, sure.

> Except it IS clear what unfairness looks like, and it's this.

That’s not sufficient. You need to be able to also identify what districting maps are fair enough. As soon as you open the door to these kinds of lawsuits, every districting map will get challenged in court by the minority party. If you don’t have a standard for being able to throw out most of those cases, you’ll have the federal judiciary deeply enmeshed in redistricting disputes.

“We’ll only have the judiciary step in for the the most egregious cases” never works. You see that in contexts like Establishment Clause litigation, where people are suing over whether letting religious student organizations use school facilities is an establishment clause violation. In that area, legitimately egregious conduct is long in the past (if it ever existed at scale) and courts have become just another political tool in the culture war. There is a reason the Supreme Court has resisted the urge to take a “we’ll step in only for the most egregious cases” approach with the First Amendment. Video games marketed to kids where you blow away prostitutes? Go for it. We’re not going to police that.

You can’t get judges to police everything. If duly elected Democrats in maryland want to screw over republicans and strip them of voting rights, then there are problems with our society judges can’t fix.

The only thing I can think of is to start with the districts we have and then produce an algorithm that uses a random number generator to redraw lines. The algorithm can fuzz the current boundaries making a district larger or smaller or it can choose to split a district or combine two districts. Just keep randomizing the districting for each election starting with the output of the last time it was randomly fuzzed.

Sometimes the randomness will work in favor of one party, sometimes against it. In the long term, it adds in some non-partisan non-determinism, which is probably good for justice long-term.

This sidesteps the question of values entirely.

> That’s not sufficient. You need to be able to also identify what districting maps are fair enough.

Actually no. The court only needs to find that partisan gerrymandering is unconstitutional, and then leave it up to the states and lower courts to figure out which kinds of map drawing is constitutional.

It's already not legal to have districts that don't represent the same number of people. E.g.

> this is too much

There's a reasonable back and forth between the majority and minority on this question. The majority rejects unilaterally expanding the set of criteria the courts can use to overturn political maps. There's a good separation-of-powers argument for that conservatism.

(The court would prefer another branch decide what is and isn't too partisan, in the way Congress defined what is illegal racial gerrymandering.)

I'm reading this as both sides agreeing that it's unfair, but the majority doesn't see a way for the Supreme Court to devise a fair test to apply as they can with race, or a way to do so under the Constitution.

I'm inclined to agree with the majority. I don't see a solution for this problem that isn't a messy and partially flawed political compromise, and those need to come from the States or Congress.

They've made the assumptions that districts are required and stopped because they can't see a fairness test.

The fairest thing to do would be to eliminate districts and allow a voter to identify which candidate(s) they support. That offers the voter the ability to self select fair representation of the interests that matter to them. Yes, this does imply an alternative voting method.

Maybe one of these: https://en.wikipedia.org/wiki/Schulze_method https://en.wikipedia.org/wiki/Ranked_pairs

> The fairest thing to do would be to eliminate districts and allow a voter to identify which candidate(s) they support

There's a very old assumption that local elections (i.e. within a district) are the fairest way for the interests of the people to be represented. Politics ought to be as decentralized as possible - all the arguments, discussions, and decisions about "what we want" should take place locally when electing a representative.

While your proposal may help governments to more accurately represent the will of the people en masse or in aggregate, I suspect it would only further contribute to a sense of division, especially in a local sense.

The supreme court interprets the constitution, it doesn't have carte blanche to rewrite it.

Sure, but that type of change must come from lawmakers, not justices.

I'd prefer that change to come from the people... but yes, I'm proposing a solution, not something that I expect justices to suddenly will in to being.

I'm wondering, if the majority came to the conclusion that it's another branches' (or the states') problem to address, why did the court take on this case other than to state #1 "It's not our branches problem." and #2 "Courts shouldn't be addressing this issue, see #1." That's a full on punt without forcing anyone to address the issue like this is a problem but not ours to fix.

The court initially gained the power of judicial review under Marbury vs Madison. SCotUS can standardize the application of the law by interpreting it or the constitution in a specific way like ruling that the "Well regulate militia," part of the 2A is less important than "the right to bear arms" part. The court has used this power before to step in when other branches or states could not agree or even work together like desegregating public schools (Brown V Board of Education, unanimous decision). I think we are at a similar point with gerrymandering. Some states benefit from it and the people in power want/need it to stay in place so like term limits won't be considered at all until the power balance flips. But the power balance can't flip due to gerrymandering. SCotUS won't put their finger on the other side of the scale to force that change and address the issue either.

I'm wondering how much the decision gets into one person, one vote doctrine. Districts within a state must have similar population and voting power. If a district is designed to favor a specific party they could hold such partisan gerrymandering makes voters of the opposite party's vote effectively not count and violate One Person, One Vote precedent. It may then be held that districts should be drawn in a way that doesn't involve partisan lean along with other protected classes like race or sex. The hard part isn't the decision itself but how the majority opinion lays out or sets up what comes next. I think that's where the court couldn't agree and why we have such a milquetoast rejection of the branches power to do something.

If they couldn't agree how to rank districts on partisan bias (say with the efficiency gap), where the line is drawn for gerrymandering (if it's 60%, then they'll be drawn to 59.99% next time etc), or how to advise redrawing without stepping on states rights to determine how voting works (the constitution lays out a few requirements but leaves much to each state to decide), then this decision makes sense. But they probably could have sorted that out when considering to take the case at all. Maybe they needed to take the case due to the mess of initial decisions in lower courts as it would come up again and they wanted to get ahead of that.

I'm reading this as a punt but hard pass on making anyone responsible for the problem. I think you're right though as if the vote went the other way fallout would be messy, possibly get the court called out for activism (I think we needed it here but that's my opinion), and not consider possible responses that make the problem worse or legal arguments like if gerrymandering for party isn't valid like for race then party affiliation is a protected class.

After typing this out, I think they could have rejected the case with minor fallout with notes that it needs to be handled by the proper branch of government like Congress or the states. But they accepted the case then couldn't sort out how a ruling against partisan gerrymandering would work or fallout, and here we are.

> But they accepted the case then couldn't sort out how a ruling against partisan gerrymandering would work or fallout, and here we are.

I like your line of thinking there, but I can't help but think they knew exactly what they were doing when they took it. Knowing what we know about Alito and Thomas they would've jumped at this type of decision, probably Gorsuch and Kav as well.

Make a binding non-decision that favors the status quo? That sounds in line traditional conservative goals of preserving the status quo while doing the bare minimum to govern a la small government.

I think accepting the case and establishing precedence that is it not the role of the court to solve this problem is better than letting it fester.

California was gerrymandered to the extreme and it took two ballots directly to the people to move to an independent commission, the last only in 2010. Both were opposed by lawmakers, so it’ll be slow going state by state.

I think such a commission is good. Any effort that better demonstrates the will of the voters like registration drives, mail-in options, etc is worth considering given other costs are adequate. As far as I've seen the CA commission is working as intended or at least better than before. I'm not for any groups, political or otherwise, getting any greater or lesser representation. It pushed me to want a more parliamentary system sometimes like vote for party or IRV for elections with specific candidates.

The issue is that “fairness” has many dimensions. Representation is one of them, but so is racial fairness (e.g. you can’t split districts to deemphasize one race’s vote) and compactness (you shouldn’t make thin slices geographically to see read the vote.) When you have these two competing values, and some maps do better on one dimension while others are better on the other, how do you properly weigh them?

My understanding of the ruling is not that it’s ok to be fair, but that at this point we can’t even balance all the dimensions of fairness to get a single measure.

Reminds me of https://en.wikipedia.org/wiki/I_know_it_when_I_see_it

Had the court back then decided that since they couldn't define it they couldn't pass laws on it, I think our laws in relation to such material would be in a better place now.

A deterministic algorithm that accepts no inputs other than the census count and geodetic coordinates of the census tract, and outputs district boundaries, is inherently non-unfair.

If you cannot inject unfairness during the process, the only unfairness you can output is a different expression of the unfairness that already existed when you started it. You can't intentionally make it worse.

I have personally seen dozens of algorithmic redistricting proposals that naively optimize for "geographic compactness". Those maps look fair. But you don't need to use the interocular test--you can use math and produce an objective measure of compactness. The only question is which one to pick.

Pick any of them, arbitrarily. It will set an upper limit on the impact of malicious gerrymandering, and be more fair than when completely unconstrained.

>Except it IS clear what unfairness looks like

So... what does it look like, specifically?

Yes I always love reading these. Despite all the recent politicking around the SC, I think it remains the least political branch of our government.

Many people think the SC's job is to decide what is "good" for our country, but actually that is the Legislative's job. The SC's job is to interpret the law and apply it fairly. The opinion actually says that gerrymandering can reasonably be argued to be unfair, but just that deciding that is IS unfair is not within the realm of the federal courts.

The opinion is well written and I think it was correctly decided. That being said, I do think Gerrymandering is a real problem, but I think it needs to be solved with new laws, not with a SC decision.

> I think it needs to be solved with new laws

Who writes the laws, and how are they selected?

The people who made the gerrymandered electorates. They got in because they’re a fair representation of the people.

Duh.

Happily they’ve filled two Supreme Court seats, one by prohibiting a sitting president from getting any nomination through for An entire year

[edit to note that both parties in the US do this wherever they have power to]

I think the Supreme Court is the most political body in US. Ideology is at the core of every decision where the executive and legislative bodies have a much wider focus. Politics without elections removes the polite fiction created as everyone tries to look good to the general public.

fivethirtyeight.com did a really insightful series of podcasts on gerrymandering. Everyone agrees what North Carolina is doing is bad, but it's actually quite difficult to say what "good" is. Definitely worth a listen:

https://fivethirtyeight.com/tag/the-gerrymandering-project/

Hmm. That is actually an interesting argument. It's like when Žižek and Peterson were debating Capitalism and Peterson talked about how you have the separation between those with wealth and the workers, but what happens when you try to fix that? Trying to level out the field will eventually lead to other injustice based on your previous position in the system.

Gerrymandering is a symptom of a broken system: badly proportionate representation due to First Past the Post elections. If we had order of preference voting with instance runoff, or Mixed-Member Proportional, policies would be much better at reflecting the opinions held by the people in the regions where politicians are elected. (I did a post on this a few years back: https://fightthefuture.org/videos/does-voting-make-a-differe...)

Maine has ranked voting now, and I hope we see it in more states. I think the solution to our broken political system is not fixing district lines, but to move to voting systems where those lines don't matter, where votes cannot be thrown away and where elected officials come into power representing many different viewpoints of their electorate.

Those two things (how to perform districting and how to count votes) are completely unrelated and separate problems.

If you keep your heavily partisan districts, ranked choice isn't going to fix things if you've used data to ensure that the people in that districts are likely to vote the way you want. Ranked choice (or similar changes) doesn't create a more balanced partisan body in the district, it just changes the need for a Primary to decide who will be represented.

Districts matter because they're baked into the system. You want to get rid of them, that's a whole other can of worms but you can't pretend that drawing 3 districts, one with a +20% conservative lean, the other with a +20% conservative lean and the 3rd with a +90% liberal lean isn't going to continue being a problem.

Your plan is great at fracturing the parties, but that assumes that there's any value in that.

It's also worth noting that districts useful, just not when heavily partisan. For example, if you have a city that is 51+% white, and all your council elections are at large, it is entirely possible for white voters, as a bloc, to just overrule the other 49% all the time.

This is less probable with districts because in general races are not well-mixed in American cities in terms of spatial distribution.

The solution is to have proportional voting, not ranked voting.

Ranked voting solves a specific issue: voting for a government position for which there is a single position: eg president, governor, etc

Roberts, the Chief Justice of the United States Supreme Court, just ruled that the US is not a representational democracy

> In his opinion for the court, Chief Justice John Roberts explained that partisan-gerrymandering claims pose particularly difficult problems for courts because it is well settled that legislatures can consider politics when drawing district maps. The question that courts would have to decide is when the consideration of politics has gone too far and violates the Constitution.

> But there’s no requirement, Roberts wrote, that a party’s representation in a congressional delegation or state legislature reflect its share of the statewide vote – a concept known as proportional representation.

Reply on news.ycombinator.com