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Comment by Joeri | Hacker News Reader

Yes, when gerrymandering was challenged in 2019 a bunch of mathematicians filed an amicus brief with a mathematical fairness test. Their work is here: https://mggg.org/

Other tests and models have also been proposed in the challenges to gerrymandering. The supreme court just had to pick one. But what the court ruled in 2019, along strict partisan lines, is this:

The Court ruled that while partisan gerrymandering may be "incompatible with democratic principles", the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts.

https://en.m.wikipedia.org/wiki/Rucho_v._Common_Cause

So just like how the supreme court ruled in citizens united that it wouldn’t put any limits on money in politics, it ruled in this case that it wouldn’t prevent politicians from redistricting in their favor. The supreme court is imho part of the problem of American politics, not part of the solution.

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The correct legal decisions were made in both cases.

In Rucho,

> Roberts made clear that partisan gerrymandering can be distasteful and unjust, but that states and Congress have the ability to pass laws to curb excessive partisan gerrymandering.

In other words, it's up to the legislatures to ban gerrymandering first before SCOTUS can rule on it.

As for Citizens United, the law granted the FEC to pick and choose who was allowed to exercise political speech:

> The Chief Justice wrote separately to explain why the Court went as far as it did. Essentially, Roberts explained what I’ve written in this article: that there was no rhyme or reason anymore to which entities were allowed to influence elections and which weren’t. According to the government, Michael Moore can but Citizens United couldn’t. The New York Times (a corporation) can but other corporations couldn’t. There were so many holes and exceptions to the law organizations had been essentially reduced to asking the government for permission to criticize it, and that is contrary to the essential purpose of the First Amendment. No more narrow exceptions given to one group but not another, the whole thing must go.

https://www.cato.org/commentary/michael-moore-trumpland-migh...

They even went as far as to claim the authority to ban books:

> A close reading of the transcript, however, reveals that General Kagan did not change the government’s answer. She suggests that someone who had their book banned by the FEC would have a “quite good as-applied challenge,” and suggests (wrongly, it turns out) that the FEC has never pursued books in any enforcement issue.

> This is not the same, however, as saying flatly that under no circumstances does the government have the authority, under the Constitution and the First Amendment, to ban books for political content. Instead, Kagan asserts only that the statute in question (203) does not currently cover books, while conceding that another (441b) does cover books — but she promises they won’t use it to go after books. Promise, pinky-swear!

(yes, that Kagan as well in case you were wondering)

https://www.ifs.org/blog/citizens-united-its-all-about-the-b...

There was nothing “correct” about either decision.

They may have correctly followed a legally justifiable theory that led to their decision, but there were also other equally, if not more, legally justifiable theories they could have followed to reach the opposite decision.

For example, a theory that would incorporate the idea that a badly acting legislature cannot be the only one to depend on to curb the badly acting legislature when the bad behavior’s goal and effect is to shape the very mechanism that provides the only check on their behavior, ie voting.

You go from "pedantic, but hard to argue against" to "lost the plot and are more wrong" when you say "there were also other equally, if not more, legally justifiable theories" and then list a much harder to arrive at and less legally defensable reason that is also unrelated to the actual facts of the case...

The best criticism of the ruling, imo, is that it should have been decided under the freedom of press clause. The result was correct, but if it was decided under that clause it could have avoided the campaign contribution implications.

> but there were also other equally, if not more, legally justifiable theories they could have followed to reach the opposite decision.

Only what the law actually says is justifiable in law.

> For example, a theory that would incorporate the idea that a badly acting legislature cannot be the only one to depend on to curb the badly acting legislature when the bad behavior’s goal and effect is to shape the very mechanism that provides the only check on their behavior, ie voting.

On what legal basis is this based on?

The fact these cases made it to SCOTUS basically ensures there were multiple legal theories that arguably correct. If there was only one true interpretation, the cases would have been solved by a lower court. Then SCOTUS itself was split (along partisan lines no less).

> The fact these cases made it to SCOTUS basically ensures there were multiple legal theories that arguably correct.

That doesn't seem to support the idea that

has to be one of those theories.

Flag burning made it to SCOTUS too, and was a 5-4 decision as well.

And there were reasonable arguments on both sides. And there were 2 dissents and 1 concurrence filed, so even within the Court, there were different interpretations, even among Justices who agreed (on each side).

No, I don't believe any argument that burning a flag isn't protected speech is reasonable.

Well then you have 4 supreme court justices you need to argue with. What is the law of the land and what is moral don't always line up. All we get is the hope that our system tends toward morality over time.

I don't need to argue with them because flag burning is already protected speech and the justices are all dead by now.

Nearly 40 years later, it may seem to be a settled question.

But then we have Roe, which was settled, until it wasn't.

> Roberts made clear that partisan gerrymandering can be distasteful and unjust, but that states and Congress have the ability to pass laws to curb excessive partisan gerrymandering.

In other words, it's up to the legislatures to ban gerrymandering first before SCOTUS can rule on it.

...so the very legislatures that practice gerrymandering to make sure their party stays in power should, after a sudden revelation that this practice is distasteful and unjust, decide to forbid themselves from doing it? Yeah, that sounds very likely!

It's admittedly unlikely, but the 17th Amendment which required direct election of senators was ratified by state legislatures who previously had that power.

In this case, Congress would have the power to do so if state legislatures will not (and for that matter, some states have).

> > but that states and Congress have the ability to pass laws to curb excessive partisan gerrymandering.

> In other words, it's up to the legislatures to ban gerrymandering first before SCOTUS can rule on it.

The gerrymandered legislatures, you mean?

The idea that the states can cheat in elections how they will, even federal elections, and there is no recourse - do you not see that even if this has the color of law, it is in fact _wildly unjust_?

> As for Citizens United, the law granted the FEC to pick and choose

Given the FEC's extremely limited budget, the fact that they can only enforce a subset of violations is completely necessary.

This is true of all agencies, police organizations and the like.

---

These two are crappy decisions that are bad for the country and bad for the average citizen.

The people who defend them never do so on the basis of justice or fairness, because on that matter they are indefensible. In their hearts, they think, "Our evil side will be able to win and win and win forever if we set the rules to 'Cheat Mode'".

> do you not see that even if this has the color of law, it is in fact _wildly unjust_?

It's not good, and it's certainly not ideal, but it's much worse for the courts to be usurping powers they don't have.

> Given the FEC's extremely limited budget, the fact that they can only enforce a subset of violations is completely necessary.

> This is true of all agencies, police organizations and the like.

The FEC specifically gave exemptions selectively to certain organisations. Not 'they didn't have the resources to pursue this' but 'they said it was ok for Michael Moore to do this but not Citizens United'.

> In their hearts, they think, "Our evil side will be able to win and win and win forever if we set the rules to 'Cheat Mode'".

I'm so glad you're able to glimpse into my heart of hearts and determine what I think for myself.

> The idea that the states can cheat in elections how they will, even federal elections, and there is no recourse

This is false. The recourse, and the correct course of action, is for state citizens to be shown convincing evidence that gerrymandering is unjust and bad (which isn't hard to provide) and elect better representatives. Representatives elected via gerrymandered elections still do actually have to be voted for by members of those districts, and so a sufficiently large grassroots effort will likely succeed.

> Given the FEC's extremely limited budget, the fact that they can only enforce a subset of violations is completely necessary.

This is selective enforcement. I hope you agree that that's bad.

> These two are crappy decisions that are bad for the country and bad for the average citizen.

No, they're decisions that are consistent with the constitutional system of the United States. They have undesirable outcomes because of the laziness of voters, but they are principled and correct.

Subversion of the tripartite system of the executive, legislative, and judicial branches of government to try to obtain a better outcome is obviously unsustainable and extremely abusable - a clearly terrible idea, advocated for only by those with a partisan desire for some specific changes to be made, and not because the justices are actually doing a bad job (so far).

> In other words, it's up to the legislatures to ban gerrymandering first before SCOTUS can rule on it.

You're saying that SCOTUS shouldn't act until the people rigging elections in their favour... Voluntarily stop rigging elections in their favour?

I'm not sure if that argument is just nakedly partisan, or is simply one that doesn't make a lick of sense.

It's right up there with 'criminals should preside over their own trials' and 'the watchmen should watch themselves'.

It feels like a similar interpretation of checks and balances as Nixon's belief that the President cannot commit a crime.

I'm saying that, like it or not, there's simply no legal basis for SCOTUS to ban gerrymandering if gerrymandering isn't illegal.

What you’re saying is true, but it’s not exactly the end of the story in our post Roe world. SCOTUS has proven they are willing to completely reverse their decisions absent a change in fact or law. If nothing changes except the partisan makeup of the court, then their decisions look partisan when they are reversed.

So when SCOTUS says they are bound by the law and Constitution to not make certain decisions, a lot of people now rightly ask: are they really? Because it seems that they can move with great alacrity to twist the law when it suits the political aims of their party.

Yeah, the check on the legislature for this kind of thing isn't the courts but the Constitution. Maybe we'll see an amendment in our lifetime.

Why would the legislatures that gerrymandered themselves in amend the constitution to ban this practice?

Waiting for a constitutional amendment on anything in this century is like waiting for Santa Claus. He's not coming.

I don't think an amendment would be necessary. Congress has the power to do so without it.

Translation: get the "wrong" unlimited money and the "wrong" party gerrymandering and they might get off their behinds and change their opinions

Now as for the SC being part of the problem, well, maybe it's an issue of assignments and term limits, but it is not as simple as not having one

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