Posted 12:47 PM by Robert

Down the Rabbit Hole with the Supreme Court III:
Feeding the Gerrymander

Would now-prevailing "one person - one vote" Supreme Court precedent allow California to create two new, adjoining State assembly districts, each with exactly the same number of registered voters, but with the first district having, say, three times the population of the second district?

The popular understanding of the "one person - one vote" rule would certainly be shocked if such districts were allowed. But, on the other hand, as Fritz Schrank points out, the Court specifically rejected the use of strict mathematical formulas when it said:

"[The] proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." [Emphasis added]

The exclusion of non-qualified voters from consideration in drawing assembly districts simply does not appear to be a "minor deviation ... free from any taint of .. discrimination" from "a plan of population-based representation." After all, such a plan specifically discriminates against the disenfranchised - and implicitly discriminates against various classes of the disenfranchised, including children and non-citizens. And that is without taking into account people who voluntarily exclude themselves from the franchise for religious reasons, people who just don't bother to register, or those so severely retarded that they don't know how to register. So it doesn’t seem as though such districts can be drawn.

But the “one person – one vote” rules does allow moving the districts’ common boundary so that each district has the same number of people, but the first has three times as many qualified voters as the second. In that case, as pointed out in previous posts, votes in the second district will have three times the weight of votes in the first district – a result which was exactly what the Supreme Court said it’s “one person – one vote rule” was supposed to correct:

“Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”

In this example, the Court’s “one person – one vote” rule creates exactly the effect it was supposed to correct. And legislatures exploit the weakness in the Court’s precedent in drawing electoral districts. Once a group of qualified voters friendly to a candidate favored by those in control of the legislature is found, the district can be “padded out” by including disenfranchised people (such as non-citizens) or groups with low turn out to meet the Court’s population test. That is, the Court’s “one person – one vote test” is being used to facilitate gerrymandering – a game in which the disenfranchised are almost literally used as pawns. Is this what the Court's fancy rhetoric was supposed to open up?

As Fritz Schranck and my prior posts have both pointed out, the Court has not attempted to justify its rule by reference to “virtual representation” of those people who either cannot or do not vote by other voting groups. That failure is one of the roots of the Court’s problem, because without some notion of "virtual representation” there is no way to bridge the gap between the Court’s rhetoric (which focuses exclusively on votes) and its rule (which focuses exclusively on population). The Court is in fact relying on “virtual representation,” but without the candor, intellectual honesty or coherence that are required. Until that foundation is supplied (if that is possible), the Court’s “equal protection” precedent, which for example the Court relied upon to settle the last Presidential election, will remain built on sand.

What courses are possible? There are several that come to mind, and many more surely exist:

The Court could explicitly admit its currently implicit reliance on its odd form of “virtual representation” and try to justify it. This does not appear to be easy – and may be a reason why the Court has not admitted what it is doing in the past.

The Court could retain its rhetoric focused on protecting the weight of votes, and restate the “one person – one vote” rule as requiring equal numbers of qualified voters in each district, rather than equal population. This rule would avoid the need to address any notion of “virtual representation” and follows naturally from the Court’s existing precedent. Nor would this rule permit invidious discrimination – since the Court’s other precedents (for example, precedent restricting race-based apportionment) would continue to apply.

The Court could retain its rhetoric, explicitly admit its currently implicit reliance on “virtual representation” and candidly analyze whether such reliance is appropriate on a group-by-group basis. For example, it does not seem a reach that children are deemed represented by adults. But are ex-felons really adequately represented by the rest of the population? Doesn’t committing a felony suggest that the felon and the rest of society do not have consistent agendas? What about non-citizens? Are they really “represented” by the rest of us? What if they are illegal immigrants? Does that make a difference? My point here is not to answer these questions. Rather, my point is that these issues are urgently and implicitly already located within the Court’s precedent – but are not being addressed because the Court will not admit what it has done. That is very dangerous – and is likely to create a disaster at the worst possible time: a divisive, hotly contested election.

Posted 11:21 PM by Robert

Sneaking Suspicions After the Rabbit

Fritz Schranck has thoughtful and interesting comments on the Down the Rabbit Hole with the Supreme Court postings that appear below and above.

Posted 2:31 PM by Robert

... and we now adopt an entirely new method!

There is an interesting interchange going among Glenn Reynolds, Mickey Kaus and Derek Lowe regarding whether “cutting edge” medical services will always be expensive, and, if so, what that means for Medicare and public finances generally. Many insightful and inciteful (it’s got to be a word somewhere) things have been written, and it is not my purpose to suggest that any of them is on the wrong track.

I would like to address a slightly different question: Are medical services bound to occupy an ever-larger portion of the economy and, if so, what does that means for Medicare and public finances generally? There is often in public discourse a casual near-equation of the expense of medical service with the portion of economy the medical sector occupies – but this is not necessarily correct. Consider LASIK, the often nearly miraculous “cure” for myopia. As that procedure has become more affordable and more reliable (at least in competent hands), the number of people having the procedure has soared. While I have not seen hard statistics on LASIK, it seems likely that the amount of money being spent on it now is much larger than when it was an “experimental” or “advanced” procedure.

Simply put, medical services generally will likely occupy an ever-larger portion of the economy and, contrary to much conventional wisdom and political demagoguery, that is not necessarily a bad thing or something that will probably benefit Democrats in the long run. Medical services are likely to occupy an ever-larger portion of the economy for the simple reason that most people would rather have their health than almost anything else, and medicine can increasingly deliver exactly that in more and more cases. That is, medical services will probably occupy an ever-larger portion of the economy because this is efficient. At the age of 75, is it likely Bill Gates would take a one-time offer to surrender his entire fortune to have again the body of a 20 year old? Of course it is.

Will this tendency of medical services to occupy an increasing portion of the economy, at least if the provision of such services is left in private hands, lead to greater State involvement? Probably yes to some extent, but mostly through the government “guaranteeing” down scale medical coverage. That is, the government will probably get more involved, but at the cost of sacrificing the rather bizarre principle that everyone should have equal access to the best medicine.

Recently – especially during the 1992 Presidential campaign and periodically since then - much has made of the already large and growing portion of the American economy occupied by the medical sector. After that election Hillary Clinton’s ersatz “task force” swung into action to provide cover for the Clintons' preconceived plan that they had concealed from the public during the election. Comparisons were made with European countries, where it was argued that medical services were a smaller portion of the economy and more “efficiently” delivered. The Clinton Administration and Democrats generally stood for the principle that something had to be done to provide the nearly sacramental benefits of top quality medical services to everyone while stopping the medical services sector from devouring America’s economy! Britain’s Nation Health Service was noted as an efficient and politically popular provider. Republicans were tempted to capitulate. The tone was of the Hussites, who protested the Church’s refusal to provide wine with transubstantiated bread to any but the 15th Century Clergy! In the rhetoric of a later religion, the Democrats called for the taking of commanding heights!

But then people realized that what the Clintons and the Democrats were proposing would seriously restrict consumer choice and have other vulgar, commercial, highly non-sacramental effects. Is the revolution simply in abeyance? If anything, the facts seem to suggest otherwise. Contrary to the Democrats main 1992 counterargument, recent studiessuggest that private American health care providers are actually substantially more efficient that the British NHS – and it is only an indication of the economic loonyness of the 1990’s that such a study may come as a surprise. In retrospect, the entire Clintonian health care fiasco of the early 1990’s can be seen as a kind of political/economic “bubble” in which the perceived value of a particular course of action becomes detached from basic economic experience, often on the basis of some asserted “new paradigm” which has supposedly come to prevail, only to come down to earth with a terrifying jolt as that long ignored economic reality violently reasserts itself. In the 1994 election the Democrats came out like later investors in another 1990’s bubble who held their dotcom stocks too long. In a sense the Democrats found themselves in the position of a famous Molière character who reminds a phony doctor (Ira Magaziner?) that, contrary to what he had just said, the heart was on the left and the liver on the right side of the body, "Yes," is the reply, "that was formerly so; but nous avons changé tout cela"--this is the origin of that phrase--"and we now adopt an entirely new method!"

The relevant basic economic experience seems to include the observation that the most efficient regulatory structure for almost any good or service requires a high level of private production and consumer choice (usually along a “property rights” model) and a low (but not negligible) level of direct government provision of such goods or services. The exact mix of private and public involvement varies. The most efficient system is, of course, not necessarily politically stable. But several large scale historical observations can be made: First, whatever the politically stable mix is in the United States, it will involve quite a bit more private action, and will be quite a bit more oriented towards economic efficiency, than the average stable European or Canadian mix. The Democrat’s failure to pay serious attention to this factor based on their readings of opinion polls, focus groups, media hype (this one largely a case of the Democrats reading their own press releases) and the 1992 Presidential and a few Senate elections, should have been a serious sign that they were tippling wood alcohol. Second, the fact that a good or service is ”basic” or “important” or “essential” in the minds of many people will not itself be a particularly strong force leading to greater government involvement. To choose but one example, American governments have never owned the telephone system and the drift is, if anything, towards less active government involvement in that area. Third, the politically stable mix will not deliver the same – or even roughly the same – quality of goods and services to all people.

It may be instructive to compare the development of the market for medicine with that of the market for education – or, more generally, knowledge and information services. Until fairly recently, medicine was like the butcher in the old joke who sold lamb chops for a mere ten cents a pound, but only when he was out of stock. Medical knowledge and the value of medical services have now skyrocketed, but attitudes towards medicine have not kept up. Our attitudes are still emerging from a past in which the lack of a product or service of any consistent, substantial value put a cap on the portion of the economy medicine could claim and was also consistent with a deeply ingrained – and still extant - sense that medicine should be provided to everyone as an act of charity. Education, too, was historically a kind of “sacramental” activity and for the most part lacked practical value for most people. Indeed, “instructing the ignorant” and “caring for the sick” are both traditional religious “Acts of Mercy” which help to “strengthen the soul.”

Today it can fairly be said that education, knowledge and information are the most basic goods. Cries for the State to guarantee “universal education” have long been with us – and the State is certainly involved in providing such things. But the State does not guaranty to everyone equal access to the best education, knowledge and information. Indeed, the trends seem to be going the other way. Public elementary and secondary schools are often of low quality – even once great State universities such as Berkeley have settled into distinct second-string positions in comparison to the best private universities. “Political correctness” threatens to degrade public education further in favor of other social priorities. Although private schools are by no means excepted from the ravages of “political correctness,” the effects seem to be less pervasive. There is constant political noise about that, but in the end the society sacrifices public educational quality for all kinds of other priorities – while the really good education is provided either by private schools or the de facto privatized public schools of exclusive neighborhoods or those operating under “charters.” “Vouchers” would likely increase the overall average quality of education while further increasing the gap between the best and worst providers in the market.

The “sacramental” aspect of education is still with us and is still being served, but the arguments for truly “equal education” have all but disappeared in favor of an understanding that much of education is just like any other service. The rich can simply buy more. Few argue today that the State has an obligation to provide unlimited knowledge and information services to everyone, or that the State has on obligation to take drastic steps to stop the knowledge and information services sector of the economy from expanding as a fraction of the nation’s overall economic output. Indeed, most people would be charmed to learn that the dissemination of education, knowledge and information occupied a growing slice of the overall economic effort. But with respect to medical services, both of these arguments were advanced and carried significant weight as recently as the 1992 Presidential election. Why?

I believe that the periodically revived sense that the State has an obligation to guaranty equal access to the best medicine is a remnant of medicine’s earlier history as a “sacramental” or “charitable” arena from which market forces were best excluded and in which doctors were graded on their comforting bedside manner. The future of the medical services market probably will resemble the current market for education, knowledge and information. Specifically, the society will eventually surrender the odd notion that everyone is entitled to the best healthcare, just the way the society allows a growing portion of the market for education, knowledge and information to be rationed by market forces. That will not exclude the State from a substantial role in the medical services market. But the threat to the public fisc posed by the constant creation of ever more expensive “cutting edge” medical technologies will be no more immediate that the threat posed by a possible public demand that public schools be as good as Andover or Yale.

Posted 12:48 AM by Robert

Down the Rabbit Hole with the Supreme Court II

As noted in the immediately prior post, the Supreme Court’s “one-person-one vote” line of cases insists that total population – not the population of qualified or actual voters – be used exclusively in the creation and definition of voting districts at most levels (other than Federal Senators), an insistence which the Court justifies as needed to preserve the equal voting weight of each qualified voter. But the Court’s rule does no such thing. In fact, the “one-person-one vote” rule actually requires that disproportionate weight be given to voters in districts in which high concentrations of the disenfranchised happen to reside. Nor is the Court’s rule even easy to reconcile with districts with known disparities in voter turn out. If the need to protect the “equal weight” of different votes is paramount (as the Court says it is), then the Court’s rule should seek to maximize the chance that equal numbers of voters in fact vote in the election of their district’s representative. Because the “one-person-one vote” rule does not seek to ensure equal weight be given to each vote, the rule is at odds with its putative justification.

Or, rather, the rule is at odds with its putative justification unless all non-voters are deemed to “vote” notwithstanding their voluntary or involuntary failure to participate in the election. Otherwise, the “one-person-one vote” rule simply does not result in equal weight being given to each “vote.” The “deemed votes” are just necessary accounting entries needed to balance the Court’s rhetorical books.

As discussed in a prior post, “virtual representation” doctrines purport to explain why a set of non-voters (for example, children) should be considered as "represented" in elections by a set of voters. For example, parents and other adults might be deemed to represent sufficiently the interests of the district’s children. Because the Court insists that the “one-person-one vote” rule protects the equal weight of “votes,” the rule embodies an odd and concealed concept of “virtual representation.” It may therefore seem curious that the Court’s “one-person-one vote” decisions do not address the history or applicability of “virtual representation” doctrines in this area. But in another sense that omission is not really surprising at all, since it would have been embarrassing for the Court to explicitly acknowledge its reliance on “virtual representation.” A major cause of the American Revolution was the colonies' refusal to agree that they were “virtually represented” in the British Parliament unless they actually elected members to the House of Commons. “Virtual representation” theories were also used to justify the post-Revolutionary exclusion from the franchise of non-property owners and women. And then there was the unique species of “virtual representation” that informed the so-called “Three-Fifths Compromise.” Since the whole purpose of “virtual representation” doctrines must be to justify partial or total disenfranchisement, the Court cannot easily cite such doctrines as support for its “one-person-one vote” rule, which is purportedly focused on the protection of franchise rights. But while a satisfactory explanation might not be easy or even possible, intellectual honesty requires such an explanation, simply because the “one-person-one vote” rule does in fact partially disenfranchise the voters of districts with low concentrations of non-voters in comparison with districts with high concentrations of non-voters. Why is that allowed?

The intellectual incoherence that suffuses the Court’s Constitutional voting rights cases is not just a curiosity – a fitting metaphor might be that of a land mine. The Court’s entry on Constitutional grounds into this area all but guarantees that it will be obliged to arbitrate election disputes with the highest stakes, with Bush v Gore, whose majority opinion purported to rely on the incoherent "equal protection" precedent discussed above, likely only an early example. That case was by no means as bad or as politically incendiary as a high profile disputed election could be. But, as one commentator put it:

“[L]etters and articles have voiced with varying degrees of indignation a common theme that the legitimacy of the Court has been effectively called into question by its political coup d’état. The Court’s decision in Bush v Gore has been regarded in many quarters as a travesty of constitutional law incapable of rational defense. Recently, for example, 280 law professors have signed a public letter attacking a conservative and mean-spirited Court for its devious and hypocritical judicial activism.”

The Court’s only defenses to such charges of political opportunism are candor, intellectual honesty and coherence. This is especially true in the area of voting rights, but it is in precisely this area where candor, intellectual honesty and coherence are laughably but sadly lacking. The confused opinion which the Bush v. Gore majority based on “equal protection” precedent is to some extent redeemed by likely correct arguments based on other provisions of the Constitution that deal specifically with the election of the President. But such alternative arguments will not always be available – especially in the case of State and Congressional elections. The wake of Bush v. Gore itself has already raised concern about State laws disenfranchising felons – since these laws clearly disenfranchise many black men. The Court should candidly explore whether the equal protection rights of black men disenfranchised by such laws are adequately served by the Court’s odd and concealed “virtual representation” doctrine implicit in the “one person-one vote” rule. That may be painful for the Court, but it should be done. Nor is it wise to ignore the fact that in some parts of the country some districts have increasing populations of non-citizens that are creating substantial distortions in voting rights. It is likely that the Court should abandon the “one person-one vote” rule in favor of a rule that is not internally inconsistent, does not depend so heavily on “virtual representation,” and is expressly directed at protecting the equal weight of votes.

Many commentators have opined that the politics of Congressional and State legislature control have been getting nastier and more polarized in recent years. It is hard to imagine a less desirable, or more potentially explosive, point for the Court to face up to its past incoherence than in a case that delivers control of Congress (or control of the legislature of an inflamed State) to one party or the other. If that happens, the Bush v. Gore ruckus may seem like small beer indeed.

Posted 1:29 AM by Robert

Down the Rabbit Hole with the Supreme Court

As everyone should know but almost nobody does, Lewis Carroll (Charles L. Dodgson), the author of the Alice books and other fanciful works, made foundational contributions to the mathematics of voting that are perhaps as profound as those made by anyone, ever. Completed at a time when such matters were of urgent public interest and of paramount importance to the then rapidly evolving British political system – in the throes of a radical expansion of its voting franchise and rethinking the very basis of its democracy – Carroll’s work was, of course, entirely ignored except in the few instances in which it was dismissed with utter contempt. It goes without saying that those involved in political matters in Carroll’s day did not understand the significance of even the most basic mathematical structures applicable to their field. On the other hand, the Alice books did pretty well.

As recounted in a marvelous book, Carroll’s profound work was rediscovered many years later by the brilliant Scottish economist Duncan Black, who explained and extended them with a commensurate profundity. Completed at a time when such matters were of urgent public interest and paramount importance to the then rapidly evolving American political system as well as to the political systems of newly emerging nations throughout the world, Black’s work was, of course, all but ignored and often dismissed with contempt. It goes without saying that those involved in political matters in Black’s day did not understand the significance of even the most basic mathematical structures applicable to their field. In such nuances the course of progress may be discerned.

The waters of representation and voting theory have remained treacherous. Lani Guinier became perhaps their most spectacular recent victim when her nomination to high office was unceremoniously withdrawn by then President Bill Clinton, who explained that he had simply not read the works of a woman who had been his “good friend” for 20 years, without explaining on what basis he had nominated her in the first place.

Carroll asked as what he called a “preliminary question” to his investigation, “are we to count population, or Electors [that is, voters] only?” He suggested that if general population and voter population are always nearly proportional to each other, then it doesn’t matter. Implicitly, he observed that if general population and voter population are not nearly proportional to each other, then it does matter which we choose to count.

Are general population and voter population nearly proportional to each other? Many people are not eligible to vote by law. The ineligible include children, non-citizens and (in many states) those convicted of a felony. For the sake of an example, consider two hypothetical Congressional districts, the first populated entirely by Hispanic and African American people in equal numbers. The number of children in such a district might be higher than average – suppose two-thirds of the district’s population are children under the age of 18. Suppose further that one-half of the Hispanic adults in the district are not citizens, and therefore are not eligible to vote and that the district lies in one of the states that prohibit all felons from voting-whether in prison, on probation, on parole, or having fully served their sentences (including Alabama, Nevada, New Mexico, Virginia, and Wyoming). In such states, one-quarter to one-third of all adult African-American men are excluded from the franchise. Combined, the eligibility requirements reduce the fraction of people in the district who are qualified to vote to something like 5/24, or about twenty per cent of the total populace of this district.

Suppose the second district consists entirely of retired, white citizens. Combined, the eligibility requirements leave the fraction of people in this district who are qualified to vote at one hundred per cent of the populace of this district.

The two districts have the same population, yet the number of voters in one is roughly one-fifth the number of voters in the other. This means that in electing a member of the House of Representatives, the vote of each voter in the first district has roughly five times the weight of the vote of each voter in the second district. This result – set by the Constitution for Congressional districts - is mandated throughout the legislatures of each State and elsewhere as the direct and necessary consequence of the Supreme Court’s so-called “one person-one vote” line of cases.

Two Congressional districts approximately fitting the above suppositions may or may not exist. But it is quite clear that the use of general population to define political districts must combine with the irregular distribution of ineligible voters to give some voters vastly more power to elect members in the House of Representatives (or to the State legislatures) than voters in other districts. The ratio in the Congressional case may not reach five-to-one, but it is hard to believe the ratio does not exceed two-to-one. This is unavoidable under the Constitution with respect to the House of Representatives, but the Supreme Court had to demolish many decades of its own Constitutional precedent to impose this result on the State legislatures. Imposing its so-called “one person-one vote” rules on the nation the Supreme Court famously said:

"Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. … And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable. … The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. One must be ever aware that the Constitution forbids "sophisticated as well as simple-minded modes of discrimination."

Can the Supreme Court’s “one person-one vote” rule, which leads to voters in one district having their votes multiplied in power in comparison to other districts, as the example above illustrates, really be justified by the Court's observation that “it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable.”

The Supreme Court’s reasoning appears to emerge from the other side of Mr. Carroll’s famous Looking Glass. Perhaps the good Justices should spend more time reading his mathematical texts – and less time patterning their writing after the Alice books.

Posted 11:30 PM by Robert

Decline and Fall


According to an article in the current Wall Street Journal Online [link requires paid subscription] “the average value of urban commercial property [in Japan] has fallen 84% from its high and is still declining, worsening bad debt problems everywhere.”

That sounds like a big fall off in commercial real estate prices. Have such prices now become realistic? Consider that in the late 1980’s one read routinely in American papers that the grounds of the Japanese Imperial Palace (a little more than 200 acres) were "worth" – simply as raw land and without attributing any historical or artistic value to the palace buildings - more than all of the real estate in California. If the “value” of the land around the Imperial Palace real estate has fallen only 84%, then the current value of a parcel of less than 2000 acres in central Tokyo is still “worth” more than the all of the real estate in California was worth in the late 1980’s.

Really?

Sounds like those Japanese bad debt problems are going to get a whole lot worse.