Category Archives: politics

“Worst of the worst maps”: a factual mistake in Gill v. Whitford

The oral arguments in Gill v. Whitford, the Wisconsin gerrymandering case, are now a month behind us.  But there’s a factual error in the state’s case, and I don’t want to let it be forgotten.  Thanks to Mira Bernstein for pointing this issue out to me.

Misha Tseytlin, Wisconsin’s solicitor general, was one of two lawyers arguing that the state’s Republican-drawn legislative boundaries should be allowed to stand.  Tseytlin argued that the metrics that flagged Wisconsin’s maps as drastically skewed in the GOP’s favor were unreliable:

And I think the easiest way to see this is to take a look at a chart that plaintiff’s own expert created, and that’s available on Supplemental Appendix 235. This is plain — plaintiff’s expert studied maps from 30 years, and he identified the 17 worst of the worst maps. What is so striking about that list of 17 is that 10 were neutral draws.  There were court-drawn maps, commission-drawn maps, bipartisan drawn maps, including the immediately prior Wisconsin drawn map.

That’s a strong claim, which jumped out at me when I read the transcripts–10 of the 17 very worst maps, according to the metrics, were drawn by neutral parties!  That really makes it sound like whatever those metrics are measuring, it’s not partisan gerrymandering.

But the claim isn’t true.

(To be clear, I believe Tseytlin made a mistake here, not a deliberate misrepresentation.)

The table he’s referring to is on p.55 of this paper by Simon Jackman, described as follows:

Of these, 17 plans are utterly unambiguous with respect to the sign of the efficiency gap estimates recorded over the life of the plan:

Let me unpack what Jackman’s saying here.  These are the 17 maps where we can be sure the efficiency gap favored the same party, three elections in a row.  You might ask: why wouldn’t we be sure about which side the map favors?  Isn’t the efficiency gap something we can compute precisely?  Not exactly.  The basic efficiency gap formula assumes both parties are running candidates in every district.  If there’s an uncontested race, you have to make your best estimate for what the candidate’s vote shares would have been if there had been candidates of both parties.  So you have an estimate for the efficiency gap, but also some uncertainty.  The more uncontested races, the more uncertain you are about the efficiency gap.

So the maps on this list aren’t the 17 “worst of the worst maps.”  They’re not the ones with the highest efficiency gaps, not the ones most badly gerrymandered by any measure.  They’re the ones in states with so few uncontested races that we can be essentially certain the efficiency gap favored the same party three years running.

Tseytlin’s argument is supposed to make you think that big efficiency gaps are as likely to come from neutral maps as partisan ones.  But that’s not true.  Maps drawn by Democratic legislatures have average efficiency gap favoring Democrats; those by GOP on average favor the GOP; neutral maps are in between, and have smaller efficiency gaps overall.

That’s from p.35 of another Jackman paper.  Note the big change after 2010.  It wasn’t always the case that partisan legislators automatically thumbed the scales strongly in their favor when drawing the maps.  But these days, it kind of is.  Is that because partisanship is worse now?  Or because cheaper, faster computation makes it easier for one-party legislatures to do what they always would have done, if they could?  I can’t say for sure.

Efficiency gap isn’t a perfect measure, and neither side in this case is arguing it should be the single or final arbiter of unconstitutional gerrymandering.  But the idea that efficiency gap flags neutral maps as often as partisan maps is just wrong, and it shouldn’t have been part of the state’s argument before the court.

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Not to exceed 25%

Supreme Court will hear a math case!

At issue in Murphy v. Smith:  the amount of a judgment that a court can apply to covering attorney’s fees.  Here’s the relevant statute:

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.

To be clear: there are two amounts of money here.  The first is the amount of attorney’s fees awarded against the defendant; the second is the portion of the judgment which the court applies towards that first amount.  This case concerns the discretion of the court to decide on the second number.

In Murphy’s case, the court decided to apply just 10% of the judgment to attorney’s fees.  Other circuit courts have licensed this practice, interpreting the law to allow the court discretion to apply any portion between 0 and 25% of the judgement to attorney’s fees.  The 7th circuit disagreed, saying that, given that the amount of attorney’s fees awarded exceeded 25% of the judgment, the court was obligated to apply the full 25% maximum.

The cert petition to the Supreme Court hammers this view, which it calls “non-literal”:

The Seventh Circuit is simply wrong in interpreting this language to mean “exactly 25 percent.” “Statutory interpretation, as we always say, begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Here, the text is so clear that interpretation should end with the text as well. “Not to exceed” does not mean “exactly.”

This seems pretty clearly correct:  “not to exceed 25%” means what it means, not “exactly 25%.”  So the 7th circuit just blew it, right?

Nope!  The 7th circuit is right, the other circuits and the cert are wrong, and the Supreme Court should affirm.  At least that’s what I say.  Here’s why.

I can imagine at least three interpretations of the statuye.

  1.  The court has to apply exactly 25% of the judgment to attorney’s fees.
  2.  The court has to apply the smaller of the following numbers:  the total amount awarded in attorney’s fees, or 25% of the judgment.
  3.  The court has full discretion to apply any nonnegative amount of the judgment to attorney’s fees.

Cert holds that 3 is correct, that the 7th circuit applied 1, and that 1 is absurdly wrong.  In fact, the 7th circuit applied 2, which is correct, and 1 and 3 are both wrong.

1 is wrong:  1 is wrong for two reasons.  One is pointed out by the cert petition:  “Not to exceed 25%” doesn’t mean “Exactly 25%.”  Another reason is that “Exactly 25%” might be more than the amount awarded in attorney’s fees, in which case it would be ridiculous to apply more money than was actually owed.

7th circuit applied 2, not 1:  The opinion reads:

In Johnson v. Daley, 339 F.3d 582, 585 (7th Cir. 2003) (en banc), we explained that § 1997e(d)(2) required that “attorneys’ compensation come[] first from the damages.” “[O]nly  if 25% of the award is inadequate to compensate counsel fully” does the defendant contribute more to the fees. Id. We continue to believe that is the most natural reading of the statutory text. We do not think the statute contemplated a discretionary decision by the district court. The statute neither uses discretionary language nor provides any guidance for such discretion.

The attorney’s compensation comes first out of the damages, but if that compensation is less than 25% of the damages, then less than 25% of the damages will be applied.  This is interpretation 2.  In the case at hand, 25% of the damages was $76,933.46 , while the attorney’s fees awarded were $108,446.54.   So, in this case, the results of applying 1 and 2 are the same; but the court’s interpretation is clearly 2, not the absurd 1.

3 is wrong:  Interpretation 3 is on first glance appealing.  Why shouldn’t “a portion of the judgment (not to exceed 25%)” mean any portion satisfying that inequality?  The reason comes later in the statute; that portion is required to “satisfy the amount of attorney’s fees awarded against the defendant.”  To “satisfy” a claim is to pay it in full, not in part.  Circuits that have adopted interpretation 3, as the 8th did in Boesing v. Spiess, are adopting a reading at least as non-literal as the one cert accuses the 7th of.

Of course, in cases like Murphy v. Smith, the two clauses are in conflict:  25% of the judgment is insufficient to satisfy the amount awarded.  In this case, one requirement must bend.  Under interpretation 2, when the two clauses are in conflict, “satisfy” is the one to give way.  The 7th circuit recognizes this, correctly describing the 25% awarded as ” toward satisfying the attorney fee the court awarded,” not “satisfying” it.

Under interpretation 3, on the other hand, the requirement to “satisfy” has no force even when it is not in conflict with the first clause.  In other words, they interpret the law as if the word “satisfy” were absent, and the clause read “shall be applied to the amount of attorney’s fees.”

Suppose the attorney’s fees awarded in Murphy had been $60,000.  Under interpretation 3, the court would be free to ignore the requirement to satisfy entirely, and apply only 10% of the judgment to the attorneys, despite the fact that satisfaction was achievable within the statutory 25% limit.

Even worse:  imagine that the statute didn’t have the parenthetical, and said just

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.

It would be crystal clear that the court was required to apply $60,000, the amount necessary to satisfy the award.  On interpretation 3, the further constraint imposed by the statute gives the court more discretion rather than less in a case like this one!  This can’t be right.

You could imagine switching to an interpretation 3′, in which the court is required to satisfy the amount awarded if it can do so without breaking the 25% limit, but is otherwise totally unconstrained.  Under this theory, an increase in award from $60,000 to $100,000 lessens the amount the court is required to contribute — indeed, lessens it to essentially zero.  This also can’t be right.

 

2 is right:  When two clauses of a statute can’t simultaneously be satisfied, the court’s job is to find some balance which satisfies each requirement to the greatest extent possible in a range of possible cases.  Interpretation 2 seems the most reasonable choice.  The Supreme Court should recognize that, contra the cert petition, this is the interpretation actually adopted by the 7th Circuit, and should go along with it.

 

 

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Maryland flag, my Maryland flag

The Maryland flag is, in my opinion as a Marylander, the greatest state flag.

Ungepotch?  Yes.  But it has that ineffable “it shouldn’t work but it does” that marks really great art.

But here’s something I didn’t know about my home state’s flag:

 

Despite the antiquity of its design, the Maryland flag is of post-Civil War origin. Throughout the colonial period, only the yellow-and-black Calvert family colors are mentioned in descriptions of the Maryland flag. After independence, the use of the Calvert family colors was discontinued. Various banners were used to represent the state, although none was adopted officially as a state flag. By the Civil War, the most common Maryland flag design probably consisted of the great seal of the state on a blue background. These blue banners were flown at least until the late 1890s….

Reintroduction of the Calvert coat of arms on the great seal of the state [in 1854] was followed by a reappearance at public events of banners in the yellow-and-black Calvert family colors. Called the “Maryland colors” or “Baltimore colors,” these yellow-and-black banners lacked official sanction of the General Assembly, but appear to have quickly become popular with the public as a unique and readily identifiable symbol of Maryland and its long history.

The red-and-white Crossland arms gained popularity in quite a different way. Probably because the yellow-and-black “Maryland colors” were popularly identified with a state which, reluctantly or not, remained in the Union, Marylanders who sympathized with the South adopted the red-and-white of the Crossland arms as their colors. Following Lincoln’s election in 1861, red and white “secession colors” appeared on everything from yarn stockings and cravats to children’s clothing. People displaying these red-and-white symbols of resistance to the Union and to Lincoln’s policies were vigorously prosecuted by Federal authorities.

During the war, Maryland-born Confederate soldiers used both the red-and-white colors and the cross bottony design from the Crossland quadrants of the Calvert coat of arms as a unique way of identifying their place of birth. Pins in the cross bottony shape were worn on uniforms, and the headquarters flag of the Maryland-born Confederate general Bradley T. Johnson was a red cross bottony on a white field.

By the end of the Civil War, therefore, both the yellow-and-black Calvert arms and the red-and-white colors and bottony cross design of the Crossland arms were clearly identified with Maryland, although they represented opposing sides in the conflict.

In 4th grade, in Maryland history, right after having to memorize the names of the counties, we learned about the flag’s origin in the Calvert coat of arms

but not about the symbolic meaning of the flag’s adoption, as an explicit gesture of reconciliation between Confederate sympathizers and Union loyalists sharing power in a post-war border state.

The Howard County flag is based on the Crossland arms.  (There’s also a sheaf of wheat and a silhouette of Howard County nosing its way through a golden triangle.)  The city of Baltimore, on the other hand, uses the Calvert yellow-and-black only.

Oh, and there’s one more flag:

That’s the flag of the Republic of Maryland, an independent country in West Africa settled mostly by free black Marylanders.  It existed only from 1854 to 1857, when it was absorbed into Liberia, of which it’s still a part, called Maryland County.  The county flag still has Lord Baltimore’s yellow, but not the black.

 

 

 

 

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Intersectionality as nonlinearity

I wonder if the idea of intersectionality would be better-understood in STEMmy circles if we called it “nonlinearity” instead.  Put that way, e.g.

“the condition of being queer and disabled isn’t the sum of the condition of being queer and the condition of being disabled, or even some linear combination of those, it’s just its own thing, which draws input from each of those conditions in some more complicated way and which has features of its own particular to the intersection”

it’s something I think most mathematicians would find extremely natural and intuitive.

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The past was bad

It’s looking tonight like the GOP will manage to pass some version of the AHCA, a bill repealing the Affordable Care Act and creating some kind of return to the pre-ACA status quo; hard to know exactly what, since the vote will be taken without the bill being publicly released, and the House has decided not to wait for the Congressional Budget Office to estimate just how much this bill will cost Americans.

GOP fans will say: “How can this be such a big disaster, crying liberals?  Ten years ago there was no Obamacare, and people did fine.”

Some people did fine!  Some people didn’t do fine.

You’ll hear people say, in the same sad snappish tone of voice, “Parents today are obsessed with safety, in my day kids rode in the way back of the station wagon, they didn’t wear seatbelts, they crossed the street by themselves, and they were fine.”

Some kids were fine!  But just so you know:  in 1975, about 1600 kids 13 and under were killed by cars as pedestrians, and another 1400 were killed in crashes while riding in cars.  In 2015, those numbers were 186 and 663.  Throw in teenagers and that’s another 8700 dead passengers in 1975; down to 2715 in 2015.

People did fine, except for the thousands of kids who got killed back then who wouldn’t get killed now.

A while ago I was reading the reunion book for the Harvard class of 1893, the people who graduated exactly 100 years before me.  You know what you notice in their bios?  A lot of people’s children died.  In 1920, about 8% of American babies died before the age of 1.  It’s now 0.6%.

People were fine!  They had a baby, the baby died, they got on with their life.

But I like it better when babies hardly ever die, when thousands of children don’t get killed in car crashes, and when Americans have access to affordable health insurance even if they’ve been sick before.  The past was fine.  But it was also bad.

 

 

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AB for President

AB was talking about being President this morning.

Me:  I think you could be a really good candidate; you’re funny, and you get along with almost everybody.

AB:  And I have great hair!

She gets it.

Vacuum cleaner on sale

I was explaining the “regular price” scam to CJ the other day. A store sells a vacuum cleaner for $79.95. One day, they put up a sign saying “SALE! Regular price, $109.95; now MARKED DOWN to $79.95.” The point is to create an imaginary past that never was, a past where vacuum cleaners cost $109.95, a difficult past from which the store has generously granted you respite.
This is what Trump’s team is doing. They’re trying to create an imaginary past in which the last 5 years of life in America was characterized by ubiquitous street crime, unchecked terrorism, and mass unemployment. So that life in America in 2017 and 2018 will seem comparatively placid, safe, and prosperous. Look how much I saved you on this goddamn vacuum cleaner. You’re welcome.

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In which South Dakota can’t actually do that

Voters in South Dakota approved a sweeping new government ethics law by referendum in November.  The South Dakota state legislature just overruled them.

Can they do that?

Yes and no.  A law passed by referendum is, in the end, a law; and laws can be repealed by the legislature.  A lot of states have protections against this practice, which is called “legislative tampering.”  South Dakota is one of 12 states that doesn’t.  So if you think the people can band together and pass a law by ballot measure there, you’re only sort of right; if the people’s will goes against the will of the legislative majority, as in this case, right out the window goes the popular vote.

But the legislature did more.  The bill, HB 1069, finishes off with the following language:

Section 35. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in
full force and effect from and after its passage and approval.

The declaration of an “emergency” does two things:  it makes the bill active immediately upon passage, thus preventing the ethics commission from coming into existence even temporarily, and it prevents the people of South Dakota from launching a new referendum to veto the repeal and restore the ethics law.

I don’t think they can do this.

Under the South Dakota Constitution, some kinds of laws are subject to veto by popular referendum and some are not.  Those laws protected from referendum are categorized as follows:

However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.

The legislature doesn’t have the power to protect a law from referendum just by declaring an emergency.  It has to fall under one of the two protected categories delineated in Section 1 above.  This was laid out in Lindstrom v. Goetz (1951):

 Only those laws which are not subject to the referendum, according to § 1 are subject to the emergency clause authorized by § 22. State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, L.R.A. 1917B, 1. The same rule applies to municipalities. City of Colome v. Von Seggern Bros. Ludden, 56 S.D. 390, 228 N.W. 800. Whether a law or ordinance is subject to the referendum is a judicial question. If it is found that the law is not subject to the referendum, the legislative declaration of an emergency is conclusive. If it be found that the law is subject to the referendum, the declaration of an emergency is void, for then no emergency could exist.

The Legislature, in HB 1069,  invoked the second category of protection.  That’s what I don’t think they can do.  The interpretation of what counts as “necessary for … support of state government” in South Dakota has traditionally been pretty broad, encompassing laws designed to enhance or even redistribute state revenue.  But it’s not unlimited.  Check this out, from “Restrictions on Initiative and Referendum Powers in South Dakota,” Lowe, Chip J., 28 S.D. L. Rev. 53 (1982-1983), p.61:

screen-shot-2017-01-24-at-24-jan-6-05-pm

I don’t think you can say, with a straight face, that eliminating the independent ethics commission is an appropriation bill or a taxing measure.  So their claim dies here:  they can overrule the referendum, but they can’t prevent the public from overruling them right back.

Update: (July 2017)  The South Dakota legislature has passed a law bringing a state ethics board into existence, but one much weaker than the one the referendum was going to enact.  Good-government groups in SD are preparing a new referendum for the 2018 ballot; I guess, even if the legislature claims it can keep the public from vetoing its law, it can’t keep the public from bringing into existence an entirely new oversight body, which they’ll no doubt kill in its crib in January 2019, and so on, and so on….

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Women in math: accountability

I’ve talked about women in math a lot on this blog and maybe you think of me as someone who is aware of and resistant to sexism in our profession.  But what if we look at some actual numbers?

My Ph.D. students:  2 out of 15 are women.

Coauthors, last 5 years: 2 out of 23 are women.

Letters posted on MathJobs, last 2 years:  3 out of 24 are women.

That is sobering.  I’m hesitant about posting this, but I think it’s a good idea for senior people to look at their own numbers and get some sense of how much they’re actually doing to support early-career women in the profession.

Update:  I removed the numbers for tenure/promotion letters.  A correspondent pointed out that these, unlike the other items, are supposed to be confidential, and given the small numbers are at least partially de-anonymizable.

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Why did Terrill Thomas die of thirst?

Nobody decided to kill Terrill Thomas.  He kept flooding his cell at the Milwaukee County Jail and making a mess so they just turned off the water to his cell.  Then they left it off until he was dead.  It took six days.  Fellow inmates say he was calling out for water.  Corrections officers say they checked in on Thomas every half hour, and “he had made some type of noise or movement” every time.  Until the last time, when he didn’t make any type of noise or movement because he’d died of thirst.

How did this happen?  It didn’t happen because David Clarke — the sheriff of Milwaukee County, and a top candidate to lead the Department of Homeland Security in the Trump administration — wanted to kill a prisoner in the most agonizing way imaginable.  What kind of psycho would want that?  I don’t think Sheriff Clarke wanted to kill a newborn baby either.  The baby was the fourth person to die in the jail since April.

These people died because nobody really seems to care what happens in the Milwaukee County Jail.  The medical services there are run by Armor Correctional Health Services, a company which oversees healthcare for 40,000 inmates in 8 states.  What are you saying about your priorities if you call your health care company “Armor”?

Armor’s glassdoor page doesn’t make it sound like a great place to work.  One employee writes:   “Stop being bean counters and start listening to your employees. We are asked to do too much: too many patients, too many intakes, not nearly enough staff to be in compliance with your own rules!”  Armor was sued by the state of New York this year over 12 inmates who died in the Nassau County Jail, including Daniel Pantera, who died of hypothermia in solitary confinement; they settled the suit last month for $350,000 and are barred for three years from bidding for contracts in the state.  Armor does get a very nice endorsement, though, from Palm Beach County Sheriff Ric Bradshaw, who says right on the front of their website, “Armor stands out as an exemplary model of what partnership in correctional health should look like.”  Bradshaw’s department was held liable this year for $22.4m in damages to Dontrell Stephens, and this summer settled for $550,000 against a former U.S. Marshall who said he was roughed up by deputies after stopping to help the victims of a traffic accident.

Here in Wisconsin, Armor’s performance is overseen by Ronald Shansky, a court-appointed monitor and the first president of the Society of Correctional Physicians.  Some of what Shansky has to say, based on his visit to Milwaukee County correctional facilities last month:

screen-shot-2016-12-01-at-1-dec-4-12-pm

As for the deaths:

screen-shot-2016-12-01-at-1-dec-4-15-pm

Shansky also, I should say, has a lot of praise for some staff members at the jail, characterizing them as devoted to their jobs and patients and doing the best they can under strained circumstances.  And I believe that’s true.  Again:  the doctors of Armor didn’t want Terrill Thomas to spend six days dying of thirst.  Neither did the CEO of Armor.  Neither did David Clarke.  But it happened.  And everyone participated in creating the circumstances under which it happened, and under which it’s likely to happen again:  public services outsourced to companies without the staff or resources to do the job right.

It starts with jails.  But it goes on to schools, to parking, to Medicare, to policing, to the maintenance of our bridges and roads.  You’ll hear people say those services should be run like businesses.  We can see in Milwaukee County what that looks like.  Does it look good?

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