The Supreme Court's Math Problem

By Jordan Ellenberg, Slate

02 April 19

Fixing partisan gerrymandering requires some technical calculations. That’s why we filed a mathematicians’ brief to better define the problem—and the solution.

n Tuesday, the Supreme Court heard arguments in two partisan gerrymandering cases that have the potential to reshape the way Americans select their representatives. State legislatures in Maryland and North Carolina, the former controlled by Democrats and the latter by Republicans, drew their congressional district lines so as to lock in a huge advantage for the party in control. No one disputes what happened. There are emails. The question before the court is whether the Constitution forbids this kind of outcome-fixing or whether it walks on by with an expression of faint disapproval.

This case is about voting, and the constitutional rights of free association and equal protection, and the balance of power between parties and voters. But it is also about math, because both gerrymandering and anti-gerrymandering measures have become deeply quantitative. That’s why this case included a “mathematicians’ brief” that was, as far as I know, the first such ever submitted to the Supreme Court. (Along with 10 other mathematicians, I signed onto this brief.)

Mathematicians are like the Ents in The Lord of the Rings—we don’t like to get involved in the mundane conflicts of state, which are out of sync with our slow timescale. But sometimes (and I’m still inside this Ent simile, by the way), events in the world so offend our particular interests that we have to lumber in. That’s where we are now, because the oral arguments in this case were largely premised on a fundamental quantitative misapprehension about the underlying legal theory, one that could very well determine the justices’ decision.

The Supreme Court has already held that partisan gerrymandering is justiciable, meaning it’s within the court’s power to address. The question is: Where’s the line between normal partisan jockeying for legislative control and unconstitutional vote-rigging? Justice Gorsuch, questioning the plaintiff’s lawyer Emmet Bondurant, cuts to what he believes to be the chase:

“How much deviation from proportional representation is enough to dictate an outcome?”

In math, wrong answers are bad, but wrong questions are worse. And this is the wrong question. To explain why, I need to say something about proportions, and something about Massachusetts.

“Proportional representation” means that the fraction of seats a party holds should be roughly equal to the fraction of votes that party won overall. Many democracies have this principle built in by law; ours doesn’t. North Carolina’s Legislature very carefully drew North Carolina’s 13 districts to ensure that 10 of them—more than three-quarters of the whole—had a robust Republican advantage, even though Republican voters in North Carolina don’t make up anything like three-quarters of the electorate. So, the North Carolina districts push the state away from proportional representation. And isn’t that, Gorsuch asks, what the plaintiffs are asking the court to forbid?

It’s not. I can see why the court would want that to be the ask, because that would make its job a lot easier; there’s already established precedent that a map isn’t unconstitutional just because it’s not proportional, which would allow the court to just say no. But the plaintiffs here are asking for something different.

To see why, consider Massachusetts. Massachusetts is a Democratic state through and through, from the Berkshires to Boston Harbor. Its electorate is only about 35 percent Republican. Some parts of the state are more GOP-friendly and some less, but there’s not a single congressional district with enough Republicans to make the party competitive there. It’s been 22 years since a Republican has represented the state in the House of Representatives. Paul Clement, representing North Carolina in defense of its gerrymandered map, brought up this case, pointing out that Massachusetts Republicans don’t complain about their lack of proportional representation and aren’t dragging their state Legislature into court. “It might be unfortunate for them,” Clement says, “but I don’t think it’s unfair.” And he’s right! Proportional representation, in general, is the wrong goal to strive for. It doesn’t reflect what we think of as fairness.

Then what does? The justices seemed to struggle with this point. “[W]e need a baseline,” Gorsuch said. “And the baseline, I still think, if it’s not proportional representation, what is the baseline that you would have us use?”

He was asking a question that had just been answered, a moment before, by Elena Kagan. The baseline is “what the state would have come up with, absent partisan considerations.” What else could it be? That’s how we measure harm in every other context—if someone defrauds me, the financial harm done to me is the difference between the amount of money I have and the amount of money I would have had if I hadn’t been defrauded.

In North Carolina, we have a very good sense of what the maps might look like if they hadn’t been drawn with the intent of producing a 10–3 GOP advantage. That’s what the mathematicians’ brief is all about. Just as gerrymanderers use computers and extensive collections of voter data to draw tens of thousands of maps to find the one that suits their party best, mathematicians can draw tens of thousands of maps without thumbing the scale to see what neutrally drawn district maps of North Carolina tend to look like. They don’t all look the same, but they have a lot in common. And fewer than 1 percent of them have 10 Republican seats. The GOP-drawn map is an extreme outlier, inexplicable except as a case of gerrymandering.

In Massachusetts, on the other hand, the neutral maps drawn by machine confirm Clement’s intuition: Look at thousands and thousands of maps, and you get nine of nine Democratic-leaning districts in almost every case, which is what Massachusetts has. If Massachusetts were to have proportional representation—three out of nine Republican representatives—that would be very strong evidence of gerrymandering. The opposite of gerrymandering isn’t proportional representation; the opposite of gerrymandering is not gerrymandering.

The people suing North Carolina aren’t asking the courts to require states to hew to an abstract norm of proportional representation; they’re asking that they throw out the outliers, the freakiest of freaky gerrymanders, leaving state lawmakers the rest of the vast universe of maps to choose from with a free hand.

The oral arguments, from this point on, become very weird. Elena Kagan, as in all the recent gerrymandering cases, is the only justice who seems to have fully grasped what the two sides are asking for. She lays it out very clearly, as well as any math professor could—and then the rest of the court carries on as if she hadn’t spoken. Sonia Sotomayor and John Roberts say less but what they say is mostly right. Stephen Breyer has his own gerrymandering test, which neither side likes much. And Gorsuch, Samuel Alito, and to some extent Brett Kavanaugh, with help from Clement, collaborate on building a fictional version of the case in which the plaintiffs are asking the court to impose some form of proportional representation on the state. If you don’t want to get into the math, here’s a re-enactment of the argument, but about sandwiches instead:

COUNSEL: I’d like a grilled cheese.

ALITO: OK, one tuna melt.

COUNSEL: No, I said grilled cheese.

KAVANAUGH: I hear the tuna melt’s good.

GORSUCH: You want that tuna melt open face or closed?

COUNSEL: I don’t want a tuna melt, I want a—

GORSUCH: It seems like you don’t want to just come out and say it, but don’t you want a tuna melt?

COUNSEL: No!

KAGAN: She asked for a grilled cheese. That’s not a tuna melt because there’s no tuna in it.

GORSUCH: But if, as you say, you don’t want a tuna melt, what do you want? Are we supposed to just make up a sandwich for you?

ALITO: You come in here, you ask for a hot sandwich on toasted bread with cheese on it. To me, that’s a tuna melt.

BREYER: Nobody ever orders the chopped liver, but have they really given it a chance?

OPPOSING COUNSEL: The framers had every opportunity to make you a tuna melt, but they chose not to.

My biggest worry is that, six months from now, we’ll get a decision that lets the gerrymandered maps stand, on the utterly irrelevant grounds that voters don’t have a constitutional right to proportional representation. In other words, the justices will simply say: Even though you want a tuna melt, we can’t actually make you one, because a tuna melt isn’t on the menu.

Don’t be fooled. Nobody ordered the tuna melt.

Joe Biden Isn't the Answer

By Rebecca Traister, The Cut

01 April 19

 

t’s still three months before the first Democratic debate, nearly a year before Super Tuesday, and he hasn’t even declared yet, but poll after presidential poll continues to show 76-year-old former vice-president Joe Biden leading an enormous, diverse, and talented Democratic field.

It’s almost poetically appropriate. Biden carries himself with the confidence of a winner, despite not having won, or even come close to winning, either of the previous presidential primaries he’s entered. He is the guy whose self-assured conviction that his authority will protect him from rebuke has always preceded him into any room, whose confident sense of his own entitlement repels potential objection like Gore-Tex repels rain. He is the gaffe-master, the affable fuck-up, and also, oddly, the politician who’s supposed to make us feel safe. He is the amiable, easygoing, handsy-but-harmless guy who’s never going to give you a hard time about your own handsiness or prejudice, who’s gonna make a folksy argument about enacting fundamentally restrictive policies.

For his whole career, Biden’s role has been to comfort the lost, prized, and most fondly imagined Democratic voter, the one who’s like him: that guy in the diner, that guy in Ohio, that guy who’s white and so put off by the changed terms of gendered and racial power in this country that decades ago he fled for the party that was working to roll back the social advancements that had robbed him of his easy hold on power. That guy who believed that the system worked best when it worked for him.

Biden is the Democrats’ answer to the hunger to “make America great again,” dressed up in liberal clothes. The New York Times’ Jamelle Bouie has in fact argued that Biden’s racial politics have offered a form of Trumpism on the left, a “liberal cover to white backlash.” To that I would add, he has provided liberal cover to anti-feminist backlash, the kind of old-fashioned paternalism of powerful men who don’t take women’s claims to their reproductive, professional, or political autonomy particularly seriously, who walk through the world with a casual assurance that men’s access to and authority over women’s bodies is natural. In an attempt to win back That Guy, Joe Biden has himself, so very often, been That Guy.

Now it seems, That Guy is widely viewed as the best and safest candidate to get us out of this perilous and scary political period. But the irony is that so much of what is terrifying and dangerous about this time — the Trump administration, the ever more aggressive erosion of voting and reproductive rights, the crisis in criminal justice and yawning economic chasm between the rich and everyone else — are in fact problems that can in part be laid at the feet of Joe Biden himself, and the guys we’ve regularly been assured are Democrats’ only answer.

***

Biden was first elected to the Senate in 1972, 18 years after Brown v. Board of Education, less than a decade after the passage of the Civil Rights and Voting Rights Acts, and just three years after the Supreme Court case Alexander v. Holmes County Board of Education would actually force many schools to fulfill the promise of integration put forth by Brown. Biden took office less than three weeks before Roe v. Wade was decided by the Supreme Court and a couple of years before the term “sexual harassment” would be coined by Lin Farley.

It was a period of intense partisan realignment, in response to the upheavals of the 1960s and early ’70s, in which the American left was nervously coalescing around the interests and increased liberties of racial minorities and women, the populations who were forming what would be the most reliable part of its base.

The right, meanwhile, was sucking strength from a backlash against disruptive social movements, growing fat and drunk on the language of piety and family values that would undergird its ultraconservative defense of the old power structures, self-righteously fueling up for the Reagan era. Republicans had, for the foreseeable future, won white men — America’s original citizens, the ones around whom our narratives and priorities are calibrated.

Rather than lean into an energetic defense of the values of liberty, equality, and inclusion that might define their role against the racist and anti-feminist backlash of the era, the Democratic Party appeared anxious to distance itself from being the feminized “mommy party,” and shunt to the side — rather than vigorously advocate for — the priorities of women, especially poor women, and people of color.

The party continued to be represented and led by mostly white men. And while officially Democrats remained on the progressive side, supporting reproductive rights, civil rights, and affirmative action, a contingent of Those Guys, Joe Biden notable among them, made folksy rationalizations for abrogating, rather than expanding and more fiercely protecting, new rights and protections. Those Guys soothed; Those Guys were familiar; Those Guys enjoyed their own power and wanted to reassure everyone that it wasn’t really going to be so dramatically reapportioned.

A young Joe Biden was reliably anti-abortion, claiming that Roe v. Wade “went too far” and that he did not believe that “a woman has the sole right to say what should happen to her body.” He voted consistently for the Hyde Amendment, the 1976 legislative rider which forbid government-funded insurance programs from paying for abortion, making abortion all but inaccessible to poor people. In 1981, he proposed the “Biden Amendment,” prohibiting foreign aid to be used in any biomedical research related to abortion. The next year, he supported Jesse Helms’s amendment barring foreign NGOs receiving United States aid from using that aid to perform abortion. Biden was one of two Democrats on the Senate Judiciary to vote for the 1982 Hatch Amendment, which would have effectively nullified Roe by turning abortion rights back to federal and state legislatures. At the time, he expressed concern about whether he had “a right to impose” his anti-abortion views on the nation. Then he went ahead and imposed those views anyway.

Over the decades, Biden has evolved on the issue, yet into the 1990s and 2000s, he voted for the so-called “Partial-Birth Abortion Ban Act.” And he regularly declined to fully support the Freedom of Choice Act, which would have banned the wide variety of oppressive state restrictions on abortion.

Biden’s stances against women’s full reproductive freedom have been key to how he has proudly presented himself to the public. Even in the years since he has officially become pro-choice, he’s retained the sensibility first reflected in his comments about how women shouldn’t be wholly in charge of their own decisions, writing in his 2007 memoir that even though he’d vote against a constitutional amendment barring abortion, “I still vote against partial birth abortion and federal funding, and I’d like to make it easier for scared young mothers to choose not to have an abortion.” His is the language of restrictive authority dressed up as avuncular protectionism.

Biden wasn’t simply a comforter of patriarchal impulses toward controlling women’s bodies. Though he campaigned in 1972 as a strong supporter of civil rights, and initially voted in favor of school busing legislation intended to integrate schools in both the North and South, Biden changed his tune a couple of years into his Senate tenure. Faced with angry pressure from white constituents rearing back from integration measures that would mean busing white children into black neighborhoods, Biden previewed his anti-abortion agreement with Republican Jesse Helms by siding with him on anti-busing measures, calling the approach to school integration “a bankrupt concept” and “asinine policy.” Biden’s anti-busing stance offered an out for his Democratic colleagues, several of whom also turned on busing, helping to defeat the legislation.

In later decades, Biden’s legislative efforts reinforced other kinds of racial disparities. In 1988, he co-sponsored legislation that enacted mandatory-minimum sentences for drug possession, including higher sentences for those in possession of crack over powder cocaine, a ruling that specifically targeted poorer African-American and Latino populations, while letting wealthier white drug users off the hook. He wrote the 1994 Violent Crime Control and Law Enforcement Act signed by Bill Clinton, which helped strengthen and codify what has become the United States’ carceral state, and was an enthusiastic supporter of Clinton’s punishing welfare-reform policy. Biden was one of his party’s transmitters of what Bouie has called “sensitivity to the fears and anxieties of his white constituents.”

But even those constituents — those guys in diners, worried about jobs and mounting debt — haven’t always been served by him. Biden, the senator from Delaware, where many credit card companies and banks are incorporated, has long advocated on behalf of those financial entities. This is one of the ironies of his role as blue-collar Everyman; that guy is regularly screwed by the very companies Biden represents. As beneficiary of enormous campaign donations from his home state’s financial behemoth MBNA, in 1999 Biden voted to repeal Glass-Steagall legislation that, since 1933, had separated commercial and investment banking, paving the way for the financial crisis. Biden was one of a handful of Democrats to oppose a measure that would have required credit card companies to warn consumers of the risks of only paying the minimum due on their credit card bills and worked against legislation that would have increased protections for those whose debts mounted thanks to medical bills and for those in the military.

In the mid-2000s, he was a major Democratic supporter of a bill that made it harder for individuals, many of them struggling with enormous credit card debt, to declare bankruptcy. In a 2002 negotiation over the bill, Democrats added an amendment that targeted anti-abortion protesters, a move that both sweetened it for Democrats and made it less palatable to Republicans. (In a livid letter to the New York Times, calling the bankruptcy bill “unconscionable” and noting that it particularly imperiled female-headed households and used abortion as a strategic wedge, Elizabeth Warren, then a Harvard Law professor and advocate for consumer reforms, wondered whether “politicians like Mr. Biden … believe they can give credit-card companies the right to elbow out women and children so long as they rally behind an issue like abortion? The message is unmistakable: on an economic issue that attracts millions of dollars of industry support, women have no real political importance.”)

Then, of course, there was his stewardship of the Senate Judiciary Committee, which hit its infamous nadir with the 1991 Supreme Court confirmation hearings of Clarence Thomas. Biden was reluctant even to let Anita Hill testify as to how Thomas had repeatedly sexually harassed her, since — as he would explain afterward — he had given his word to a Republican colleague, in the Senate gym, that he’d make sure Thomas’s confirmation was speedy. When Hill did testify, and was treated with disrespect and disregard by leering and patronizing Republicans on the committee, Biden did not defend her or rebuke them; he permitted her ill treatment. Perhaps most crucially, he declined to call any of the three women — Rose Jourdain, Angela Wright, and Sukari Hardnett — who were willing to testify about their own experiences of Thomas’s inappropriate behavior, and thereby corroborate Hill’s claims.

In talking to the Washington Post the year after those hearings, Biden would offer up a pretty good description of the forces that have shaped the political universe, and his role in it, through his decades in political life. “That last hearing was not about Clarence Thomas, it was not about Anita Hill,” he told E.J. Dionne. “It was about a massive power struggle going on in this country, a power struggle between women and men, and a power struggle between minorities and the majority, and it’s a reflection of the schizophrenic personality of the American public now with regard to both those issues, feminism and race.”

Biden is correct that these have been the major power struggles. What he seems less willing to admit is that over and over again, he has been on the wrong side of them.

***

To be fair to Biden, that is not the whole story of his political career. Because, yes, he has done good and progressive things as well. He has, in many ways, truly “evolved.” Biden pays lip service to supporting abortion, though he has also said, even as a pro-choice senator, that “abortion is always wrong,” and his spokesperson declined to tell the New York Times, this week, whether or not he still supports a ban on federal funding for abortion services. As vice-president, Biden famously became an engaged supporter of gay marriage. He has worked to extend the Voting Rights Act and amendments to the Fair Housing Act. In 2010, he supported a bill that reduced those sentencing disparities between crack and powder cocaine. He has voiced some support for $15 minimum-wage measures and has said that the vote he regrets most was the one to repeal Glass-Steagall legislation.

His great feminist achievement was the Violence Against Women Act, a crucial piece of legislation that Republicans remain eager to let lapse, and which is understood in many circles to have been a form of repentance for Biden’s horrifying failures regarding Anita Hill’s testimony. He works with an Obama-founded organization called “It’s On Us,” the premise of which is that it is men’s responsibility to stop sexual assault and harassment. Even in that, though, Biden is That Guy: the paternalistic lawmaker for whom it is perhaps easier to write legislation protecting women than it is to simply listen to, believe and take seriously women, their stories of harassment, or their decisions about their own bodies and healthcare.

Biden has managed to squeak out some mild expressions of regret for the impact of the crime bill and his role in the Hill hearings. But most of them feel empty, as if he is unwilling to acknowledge the active role he actually played. In his 2007 book, Biden continued to call school busing “a liberal train wreck.” He was willing to defend the crime bill up through 2014. More recently, as his party — finally — shows some meager signs of being willing to move away from That Guy and toward policy and representation that better serves and acknowledges its actual base, he has grown more vocally critical of his crime legislation, but oddly not of himself and his role in it. This January, at a Martin Luther King Day event in New York, Biden said passively of the crack-powder sentencing disparities, “It was a big mistake that was made.”

There was similar denial of his own active role — his own power — just this week, at an event at which Biden refused to acknowledge any degree to which the grotesque treatment of Anita Hill was on him. “She paid a terrible price,” Biden said on Tuesday. “To this day, I wish I could have done something.” Biden has repeatedly commented in recent years that he “owes” Hill “an apology,” yet has never bothered to pay her the respect of proffering one directly. Hill herself has described a family joke: When the doorbell rings when they’re not expecting company, she says, “We say, ‘Is that Joe Biden coming to apologize?’”

But his remarks about Hill and his failure to account for his own shortcomings during her testimony — his unwillingness to take issues of harassment seriously, despite his work with “It’s On Us” — are only amplified by his actual behavior toward women. This week, Lucy Flores has written about the discomfort that she experienced when Biden touched her oddly before joining her onstage at a political event, days before the 2014 Nevada election in which she was running for lieutenant governor. Her account is not of anything violent, or overtly sexual; she is simply describing an experience of being with Joe Biden that is so widely understood as his thing that there are internet memes and photo galleries dedicated to images of this leading Democrat weirdly touching women in public: smelling their hair, kissing the tops of their heads, holding them very close by their shoulders. What makes Flores’s account different is only that she’s outlined the degree to which this behavior isn’t cute or acceptable.

The gross physical familiarity and disrespect radiated toward her by a man in her field, in a public space, treating her body as if it was his to smell and squeeze and kiss, is classically, casually — even while non-cataclysmically —symptomatic of the daily, easy belief that men can treat women’s bodies as accessible, without regard to the comfort or desires of the women in question. It is also further evidence that Anita Hill’s testimony — grounded as it was in the notion that unwanted, inappropriate verbal and physical contact is unacceptable in a professional context — left no impression on him. Here’s the truth: If Joe Biden had ever done two minutes of actual thinking about the harm he’d helped to inflict on Hill, on women, and on the nation in handling of those hearings, he wouldn’t still be doing this kind of thing.

Biden’s willingness to be That Guy has not worked against him; it has aggressively worked for him. When he was running in the 2008 Democratic primary, Biden made a set of crude remarks about his competitor and Senate colleague Barack Obama, whom he called “the first mainstream African-American who is articulate and bright and clean and a nice-looking guy.” It was the paternalistic phrasing of America’s inner That Guy. And when Barack Obama won his party’s nomination, becoming the first African-American major party nominee for the presidency, Biden was selected as his running mate, surely and absolutely as That kind of Guy who would comfort Those other Guys and let them know that this president was going to be friendly to them. Obama won. And Joe Biden got a new lease on progressive life.

As vice-president, Biden surged in popularity. Obama’s fondness for him radiated a kind of nonabrasive reassurance that no one was mad at That Guy! Biden became the man who profited from the very biases he expressed.

Which is why it was particularly galling last week to hear rustlings about how Biden might enter the 2020 race with a commitment from former Georgia gubernatorial candidate Stacey Abrams to be his running mate. Biden’s camp had apparently tried a similar gambit back in 2016, when he was debating entering the race against Hillary Clinton, and was briefly buoyed by a floated rumor that he might run alongside his longtime critic, Elizabeth Warren, a woman who was then still being pressured (as Abrams is now) to mount her own presidential campaign.

Neither of these rumors seems to have originated with the women in question; this week, Abrams shot down the pre-primary double-ticket fantasy, noting “I think you don’t run for second place.” That Warren would have been remotely interested in a similar stunt was equally implausible. But the willingness of someone near the Biden camp to suggest these prospects was emblematic of exactly the way not only Joe Biden, but the Democratic Party as a whole — and in fact, the nation, through its history — has behaved in its eagerness to build fundamentally white, male power on the labor and creativity of nonwhite, non-male populations. It also shows an eagerness to use the participation of women and people of color to paper over the sins of the dominant power structure’s past, of Joe Biden’s past.

***

To some degree, the appeal of Biden makes sense. Disruption of social order is scary, eruptive, discombobulating. Middle-of-the-road white men feel safe to a country that was built by and around them. But the lasting power of a politician like Biden shows what happens when a period of reflexive comfort stands for too long. Because when you behave as if your party isn’t actually committed to fighting on the side of the disenfranchised, you don’t fight on the side of the disenfranchised.

Much of what Democrats blame Republicans for was enabled, quite literally, by Biden: Justices whose confirmation to the Supreme Court he rubber-stamped worked to disembowel affirmative action, collective bargaining rights, reproductive rights, voting rights. (Just look at Georgia, where curtailed voting rights may have helped Brian Kemp ascend to the governor’s mansion, where this week he praised and may soon sign a six-week abortion ban, leaving Stacey Abrams conveniently free to be Joe Biden’s imaginary running mate.) In his years in power, Biden and his party (elected thanks to a nonwhite base enfranchised in the 1960s) built the carceral state that disproportionately imprisons and disenfranchises people of color, as part of what Michelle Alexander has described as the New Jim Crow. With his failure to treat seriously claims of sexual harassment made against powerful men on their way to accruing more power (claims rooted in prohibitions that emerged from the feminist and civil-rights movements of the 1970s), Biden created a precedent that surely made it easier for accused harassers, including Donald Trump and Brett Kavanaugh, to nonetheless ascend. Economic chasms and racial wealth gaps have yawned open, in part thanks to Joe Biden’s defenses of credit card companies, his support of that odious welfare-reform bill, his eagerness to support the repeal of Glass-Steagall.

In other words, a Supreme Court and decades of federal legislation shaped in part by Joe Biden and his party have managed to reverse many of the achievements of the 20th century’s most transformative social movements: the very achievements that had provoked the kind of backlash that politicians like Joe Biden were put in place to quell.

Very often, we are told — by people on television and in political media, perhaps by the people in our social circle and our families — that Joe Biden is the only way that Democrats can win in 2020. It’s a version of what we have been told over and over and over again for 50 years. But when I look at these last decades, I don’t actually see how much we’ve won with a party run by Those Guys. I see how much we’ve lost.