Hacker News Reader

Comment by tptacek | Hacker News Reader

"Another" nail? If it's a nail, it's one of the first ones in the coffin. Precedent for this decision stretches all the way back to the founders.

View on HN

In the US context, voting rights were dramatically expanded between the 18th century and the 1960s.

A regression to Jim Crow era practices is a serious setback.

Gerrymandering has been a constant since the time of the founders.

That's wrong, and wrong in really interesting ways.First off if we want to argue from the founders districts were never supposed to be more than 10k people and the number of districts would naturally grow with population. We threw that out the window in the early 20th century precisely to make the representation of power less democratic.

Ignoring all of that history, and taking your statement in good faith, it still is reductive to pretend that we're in the same state as the 18th century. Voters are much more diverse, and the technology exists to precisely draw districts to achieve very precise outcomes. The increased precision and ability to do things at scale is a differentiating factor, as well as the increased consequences; a voting population that's just "land owning white males" might see gerrymandering as less extreme that the much more diverse distribution of beliefs we have in the current voting population.

The current problems with gerrymandering are huge. Issues that have super majority support among the population (reproductive rights, immigration reform, drug reform, gun control) are controlled by an increasingly small population of voters. You can (and even may be correct) claim that this represents the wills of the founders; it's a much harder sell to claim that this is a "good thing" that the people shouldn't be able to push back against.

So by "wrong in interesting ways" you mean "right, but in ways not relevant to my particular argument".

No, in the you're wrong unequivocally, but the ideas that we can "know the will of the founders" and "the will of the founders somehow matters" is really interesting in 2019.

I generally don't think we can, but since "gerrymandering" was coined to describe an instance of it occurring in Boston during the presidency of James Madison, I think we have a clear signal in this one case.

Can you explain in what way this is a "Jim Crow era practice?"

Probably because gerrymandering has been used to reduce the relative impact of black votes on election outcomes.

Racial gerrymandering has long been held to be illegal.

Partisan gerrymandering has not.

But do partisan issues exist orthogonally to race? In other words, is government and politics race-blind?

Precedent for its opposite also stretches all the way back to the founders. And before, both ways, lest we succumb to the hagiographic portrayal of the founders as supermen who came up with every idea in the constitution totally by themselves. As long as we interpret "political" vs. "legal" as really meaning judicial vs. congressional, this is not a bad argument, but precedent is not the decisive factor.

Also, remember that this is the same court in which three justices (Gorsuch/Thomas/Kavanaugh in Kisor and Thomas again in Gamble) have openly called for ignoring stare decisis when it doesn't suit their political objectives. For them to cite precedent and/or judicial humility in any decision at this point is dishonest.

I don't believe that the framers were supermen, but I also don't know that it's the Supreme Court that's meant to overturn the fundamental decisions the founders made.

> I also don't know that it's the Supreme Court that's meant to overturn

That's exactly the issue I was getting at. Equal representation is clearly a constitutional issue, which it is the court's duty to rule on, and yet the constitution does not explicitly address districting issues. Would defining a standard to determine whether a districting plan meets the constitutional requirement be within the court's purview? Clearly yes, because that kind of standard-setting is a significant part of what they have always done. It's right in the introduction to the Wikipedia list of landmark decisions.

"establishing a "test" or a measurable standard that can be applied by courts in future decisions." https://en.wikipedia.org/wiki/List_of_landmark_court_decisio...

Declining to set such a standard because such things are delegated to the states would have been reasonable. Declining to set such a standard because it's a "political" - i.e. legislative - responsibility is also reasonable. But "because the constitution" doesn't work because the constitution is mute on the specifics on which the court was asked to rule. They can't overturn what doesn't exist.

People don't look for the founding intent because they think the founders were supermen. They do it because, at one point, the nation collectively agreed to be bound by the document the founders wrote. (I.e. I don't trust you and think your ideas are stupid, and I'm only willing to go along with them if I'm bound to and have no choice.)

If by "people" you mean judges and such then I think you're right. If "people" means people who post about political topics on the internet ... umm, not so much. It might not be used in legal arguments, but the belief in founders as saints or supermen is pretty widespread in US society generally.

Indeed.

>"Gerrymandering," the practice of drawing legislative district boundaries so as to maximize partisan advantage, is far from new. Elbridge Gerry, the Massachusetts governor whose name literally became synonymous with the practice, worked his magic to create a salamander-shaped district over two hundred years ago.

https://origins.osu.edu/article/re-mapping-american-politics...

The nail is not gerrymandering itself, but the fact that gerrymandering came before the court and they declined to do anything about it, with the vote following a super-obvious partisan line. That does erode public trust, compared to yesterday when people might still have had hope that the court would advance the cause of equal representation.

Reply on news.ycombinator.com