Monday, February 20, 2012

Just What the Heck is Non-Monotonicity?

I am still working on the remaining analysis of Duluth municipal elections - hold your horses! - but I thought that as a breather I would talk about something that comes up a lot when people are talking about switching over to instant-runoff voting. Normally I would use the term ranked-choice voting, which it the prefered term that's used by FairVoteMN, but non-monotonicity isn't a feature (bug) of all ranked-choice voting systems.

So what the heck is it?
A voting system is non-monotonic if, by switching your vote from a losing candidate to a winning candidate, you can make the winner into a loser (the actual definition is a bit more complex, but that's the gist of it for our purposes). This doesn't have to happen in all of the cases; it just has to be possible in some of them.

But that sounds horrible!
I agree, it does sound horrible. When we make a vote, we want to know that our vote is actually helping a candidate and our interests wouldn't have been better served by voting to someone else. (There's a different voting system which is called the non-participation criterion, which says that it should always be better for you if you go vote instead of staying home, which is pretty closely related - and which instant-runoff voting also violates.)

So instant-runoff voting is non-monotonic?
Unfortunately, yes. Check out the simplest case of an instant-runoff where this is true:
  • A>B>C = 10 votes
  • B>A>C = 8 votes
  • C>B>A = 9 votes
Under vanilla instant-runoff voting, B gets eliminated, his votes go to A, and A has more than a simple majority so he wins. But check this out; if two of the people who would otherwise have voted for C change their vote from C to A:
  • A>B>C = 12 votes
  • B>A>C = 8 votes
  • C>B>A = 7 votes
Then B wins! If your preference is C>B>A, it would have been better for you to have voted for the guy you like least! That's horrible! This is also how the non-participation criterion is violated; it would be better for the people who voted for C to stay home, because then if

So why the heck would you advocate for a system like that?
Here's a fun exercise; let's pretend that the voters have the same preferences as in the first example, but instead of using instant-runoff voting, we use two-stage first-past-the-post, the current system used in Duluth municipal elections. Here's the primary:
  • A = 10 votes
  • B = 8 votes
  • C = 9 votes
A and C go on to the general:
  • A = 18 votes
  • C = 9 votes
And A wins the general election. Seems a little familiar, right? Well, that's because it's exactly the same thing that happens in instant-runoff voting. If those two people who voted for C in the primary had stayed home or voted for A, then A would be the loser and B would be the winner. You can't argue against implementing instant-runoff voting on because it's non-monotonic and violates the non-participation criterion when the current system is non-monotonic and violates the non-participation criterion. That's like saying you'd rather keep eating your rotten apple because the banana I'm offering you is a fruit.

So how can we make a monotonic voting system?
There are a couple of ways. The trick is in making a monotonic system that doesn't suck. For example, we could take our current system and lop off the primary to make it monotonic, but you would have a lot of problems with split votes, favorite betrayal, strategy gaps, etc. There's also the problem that many of these solutions are more complicated to set up, because many of them require making pairwise calculations. Complex solutions cost more to implement and have a greater chance of failure. There's also another problem; some of the proposed solutions would require voting machines that aren't available for purchase. Mostly my position is that it's just something that we should stop worrying about for now - what's most important is replacing the current broken system.

Saturday, February 18, 2012

Would Ranked-Choice Voting Make a Difference in Duluth Municipal Elections? Part 2

Last time I looked at single-winner elections, this time I will be looking at the multi-seat elections. Note that what's actually being proposed is more properly called "single transferable vote", but I'll be calling it ranked-choice voting in order to maintain consistency. The multi-winner version does rely on ranking choices, so it's not a total misnomer - just less accurate than it should be (for branding purposes).

How the Process Works
In a single-winner election, you vote for the person you think is best in the primary, the top two plurality winners go to the general, and then you vote for the person you think is best in the general. In a plurality-at-large election, you vote for the N best candidates, the field is whittled down to the N+2 candidates, and then you vote for the N best candidates again (where N is the number of seats open). In Duluth municipal elections in the past ten years, N has always been 2, as the only seats chosen this way are the four at-large council member positions, two of which are up for re-election every two years.

Current, Proposed, and Ideal Criteria for Multi-Winner Elections
The current system is two-stage plurality-at-large. Currently having the highest or second-highest plurality will get you one of the two at-large seats. Since every person has two votes, and there are four places on the ballot in the general election, you need a minimum of a third of the voters plus one additional voter to vote for you, assuming that every person casts both votes. (That's a pretty big assumption; see the below section on bullet voting.) The lowest number of voters who wanted both candidates is a simple majority, and on this basis it's actually pretty democratic (if you ignore the primary system, which hides some of the undemocratic nature of the system). The worst case scenario for the current general election system is when one of the candidates is broadly liked and the remaining three candidates are all scrabbling for the same pool of seconds votes. In that scenario, it's possible that the second candidate chosen was only liked by a third of the voting population (something which is possible, but much less likely under RCV).

Under the proposed system, you rank all the candidates, and votes are re-distributed until there are two candidates who have more than 33%, and you declare those two the winners. The redistribution process works like this, and continues until all (both) seats are filled:
  1. If someone has more than the 33% needed to win, declare them the winner and find the sum of the votes in excess.
  2. Take votes-in-excess divided by total votes cast for that candidate to get a percent.
  3. Multiply the next-choice votes for each candidate by the percent we just found, and apply that to each of those candidates.
  4. If someone has more than the 33% needed to win, return to 1.
  5. Take the candidate with the least number of votes and redistribute their votes to the voter's next choice.
  6. Go back to 1.
This is somewhat complex for the people who have to count the votes, but it's pretty simple for the voters - just rank and let the system handle the rest.

Multi-winner ranked-choice voting ensures a couple of things. First, it ensures that "extra" votes for a candidate aren't wasted. Second, it ensures that a tie among multiple candidates is broken properly. Third, it ensures that a large block of voters don't win all the seats.

So what are the proper criteria for multi-seat representation? The biggest that the current system fails at, is ensuring that the elected candidates are representative of the voters. Under the current system, 51% of the population could have 100% of the seats, when instead you would probably want them to have 51% of the seats. Under multi-winner ranked-choice voting, the people elected to the seats are much more likely to be proportional (this difference would be much more pronounced if the four at-large seats were all chosen at once instead of two per year, but what can you do).

The second biggest criteria is that a small group shouldn't be able to overpower the will of the majority because of differences in strategy. Here the two-stage plurality-at-large system somewhat fails; split votes can hurt you badly, and fielding too many candidates in the primary means that even a majority can be edged out by a minority that's voting strategically. Of course in the end this difference in strategy means that everyone adopts the optimal strategy, and I'm really not sure how much of a concern this is in the current system.

To the elections!

When Does RCV Make a Difference?
There has been an at-large election every odd-numbered year for at least the last ten years (likely much further than that, but I wasn't able to quickly find when the City Council adopted its current make-up and don't know how at-large special elections are done). From the data available on this page, I will be looking at seven general elections for fourteen seats, and five primaries for twenty slots on the ballot (as there's no data for 1999, and there weren't enough candidates to require a primary in 2005). It's somewhat hard to compare the two systems; in plurality-at-large a candidate can get (at most) 50% of the votes cast. However, the number of votes that a candidate gets doesn't reflect the same thing as in RCV, because it's a combination of the voters' first and second choices - a candidate who gets all of the second-choice votes would not necessarily be sent on to get a seat under RCV (though it's fairly likely). With that in mind, I won't be comparing the two systems directly, instead only looking at the margins by which a winner is chosen.

General Elections
The general elections are routinely pretty close. No candidate in the history I'm looking at was elected to one of the at-large seats by having less than 25% of the vote, which means that no candidate in that history had less than half the first and second choices of the voters. Mathematically speaking, the lowest percent of the vote you could get and still win a seat is 16.7% (in ranked terms, which the current elections don't have a way for you to express, you could actually win with 16.7% of second-choice votes).

It seems relatively rare for a candidate to break the 33% barrier; only three of the twelve contested seats have been won by candidates getting that high of a percent. Even lowering the barrier to 30% only raises it up to five of twelve. Remember that 30% of the vote is equivalent to about 60% of the first and second choice rankings - which is not a terribly good basis for electing someone, because it's very possible that someone with 30% first-choice and 2% second-choice could lose to someone with 3% first-choice and 30% second-choice.

Here's the short answer to whether ranked-choice voting would ever have made a difference in the municipal multi-winner general elections: we have no way of knowing, but it's possible that the outcomes of all but one of them would have been different. The one exception to this is the 2011 election, which would have had the same outcome no matter what arrangement of hypothetical first and second choice votes you use. It's also incredibly unlikely (though mathematically possible) that Don Ness would have lost the 2003 election. To make that election come out with Ness as the loser using ranked-choice methods, we would have to make some very specific assumptions about who voted in what way and what their ranks are.

So with the caveat that we can't really know what people meant by their vote, let's look at what I think is probably the most telling number; the difference in percent between second place and third place - in other words, the difference between getting a seat and not getting a seat.

Year Second Third Difference
2011 35.92 13.14 22.78
2009 25.45 24.91 0.54
2007 26.52 24.16 2.36
2005 23.78 22.61 1.17
2003 25.90 22.67 3.23
2001 25.62 23.33 2.29

Looking at that data, it certainly seems that some of these races were quite close - some within 200 votes. So with one exception (2011), we can see that all of these were close - close enough to have made a difference. In nearly all these cases, we have "wasted" votes far in excess of the maximum cap set by the ranked-choice method (33.3%+1). In fact, we have "wasted" votes that are in most cases an order of magnitude higher than the difference between the winner and the loser (considering a "wasted" vote as one which did not go to one of the winners or the person in third place).

Theoretical Results
So let's talk about what the actual differences in outcome would be in between the two systems in a purely theoretical world. Imagine that we're looking at a utopia that has all the solutions to all of life's problems ... except for one. This one problem is the only issue that the elections are about. There are extremists on both sides of the issue, but the people themselves make up a bell curve, with the majority of people in the center (though leaning slightly to one side).

So what does two-stage plurality-at-large produce? If we pretend that there are a hundred candidates in the running, two-stage plurality-at-large will elect two people who are close to the center but a little bit to the left (same as the population as a whole). So far that sounds pretty good. Who does this implementation of ranked-choice voting elect? Most likely it'll take one person from slightly to the left of the issue and one person from slightly to the right, if we assume infinite ranking and that every person will rank candidates according to how close they are to the voter's preference (ex. If my first choice is 5, I will rank like so: 5>4>6>3>7>2>8).

Here's another hypothetical situation: we have the same utopia as before, with the same single issue that they base their entire election one. But this time, instead of public opinion being a bell shape, it's an upside down bell shape. In other words, there are almost no moderates at all, and pretty much everyone is far to the right or far to the left, with a very slight preference for left over right.

In this hypothetical, two-stage plurality-at-large will produce a perverse result; it will give both seats to people on the far left, even though they only make up a slim majority. Ranked-choice voting, on the other hand, will elect one person from the left and one from the right. (It's arguable that the best outcome here would still be to take two people from the middle, because they're most likely to find some kind of compromise. There are a couple of voting systems that produce that outcome, such as the Schulze Beatpath method, Simpson-Kramer method, or Tideman method. Those are all ranked-choice methods, but none of them are being proposed in Duluth, so I'm skipping them for now.

In the real world, there are hundreds of different policies, incomplete information, and a limited selection of candidates. As one might expect, this complicates things immensely. The principles are generally the same though; the system we have now tends to take people from the middle if there's general agreement and from one extreme if there's disagreement. This implementation of multi-seat ranked-choice voting tends to take people from either side of the middle if there's general agreement and from both extremes if there's disagreement.

So which is better? In a vacuum, I don't think I would prefer one over the other. When it's paired with single-seat first-past-the-post and a fairly pervasive oppositional mentality, I think I like the ranked-choice system a lot more. I think people in general would like it more as well; see Question 28 of this Suffolk University poll of Massachusetts about whether people see the benefit to having one Democratic senator and one Republican senator. That is, unfortunately, the best that I can do as far as data on that issue; if you've got more hard data on that issue, I would love to take a look.

Extra: Does Bullet Voting Happen?
Bullet voting is when you only use one of your multiple votes. There's good reason to do so; let's say that you really really like one candidate and feel pretty good about a second one. If you vote for both, there's a decent chance that the candidate you feel pretty good about will win at the expense of the candidate you really really like. The more people bullet vote, the more the election tends to have unrepresentative outcomes.

So, does bullet voting happen? It's hard to say. In theory, the number of ballots cast should be equal to half the number of votes. If there's a difference between the two, that doesn't necessarily mean that bullet voting took place. It might mean that people didn't vote for any candidate, usually if they lacked information about who was running and what they stood for, but wanted to vote for some other race. I would guess this is usually not the case in these municipal elections, because there usually aren't items on the municipal ballot that are hugely more important and/or exciting than the councilor seats (with the exception being the mayoral seat, but even that isn't much more popular).

I put all the data into a spreadsheet in Google Docs for both the primary and general elections. In short, the worst case scenario is that about 16% of the voters in the general and 14% of the voters in the primaries are bullet voters. Take from that what you will. I think the number of "true" bullet voters (those who are bullet voting intentionally even though they have an opinion about who their second choice is) is probably more likely 6-7%, and that's about the level it's at in those elections where one of the only things on the ballot is the council memberships.

Friday, February 17, 2012

Would Ranked-Choice Voting Make a Difference in Duluth Municipal Elections? Part 1

There is a fairly good chance that the City Council of Duluth will be putting ranked-choice voting (AKA instant-runoff voting) up for referendum sometime in the next five years. I sat in at one of the City Council meetings last week and listened to a task force Mayor Ness had formed talk about whether or not it should be adopted (they suggested that it should). I am personally in favor of the adoption, but it's my hope that I can present the evidence below without bias. All data was taken from the links on this page.

When does Ranked-Choice differ from the current two-stage election?
There are a number of situations in which ranked-choice is exactly the same as the current primary+general election system. If there's a simple majority, then they work the same way, and with no extra counting. If two candidates each have more than a third of the vote in the primary, then they also work the same way; ranked-choice eliminates all the lowest choices one-by-one to get to the top two, while the primary+election system just takes the top two without bothering to see how the votes add up.

The first situation where they differ is when no candidate would have had a simple majority in the general election. This isn't supposed to happen in the two-stage system, because the primary is supposed to reduce the field down to only two candidates, but it's still a remote possibility with a strong write-in candidate.

The second situation is when the primaries don't yield two people who both got more than a third of the vote. If both candidates have a third of the vote in the primary, then they're sure to be same two candidates that RCV would choose. That's actually pretty common for any contested election in Duluth, as we'll see.

Single-winner General Elections
Single-winner seats are chosen by the first-past-the-post method which follows the primary. I will start by considering the simple case (the general election), and then move on to the single-winner primaries. The general elections are what I would consider "democratic" if a simple majority of voters voted for the candidate (50%+1); that candidate is the sole member of the Smith set and therefore the Condorcet winner. Note that RCV does not always pick the Condorcet winner, it just has a better chance of selecting the Condorcet winner. (WBSRCV always picks the Condorcet winner if there is one.)

From 2011 to 1999 there were seven general municipal elections, held on odd-numbered years. A total of twenty-three seats were voted on. In every one of these cases, the election was decided by a simple majority rather than a plurality. However, we do not know whether these elections were truly "democratic" until we know whether the primary elections which preceded the general elections may have knocked the majority-preferred candidate out of the race.

Single-winner Primary Elections
Primary elections for single-winner seats choose the two top plurality candidates. These primary elections turn out identical under the RCV system if each of the two winners got more than 33%+1 of the vote. Note that this assumes honest voting and ignores the strategic voting problems that crop up under both two-stage first-past-the-post and RCV (though strategic voting under RCV will tend to be more honest).

The primary elections for municipal seats are held about two months prior to the general elections. Because primary election data from 1999 is not available, we will only be considering nineteen single-winner seats. Because a primary is not held if there are two or fewer candidates, we will only be considering twelve primaries. Because RCV and two-stage first-past-the-post operate in the same way if there are only three candidates, we immediately discount those primaries, of which there were six. Then we have to throw out those elections where the two candidates who went on to the primary had a large enough gap between them that a third candidate couldn't have accumulated enough runoff votes.
These races might have had a different outcome under RCV:
  • 4th District Councillor Primary of 2009
  • Mayoral Primary of 2007
  • Mayoral Primary of 2003
A consideration of two of these races follows (the two mayoral races are pretty similar, and the analysis of why two-stage first-past-the-post is bad is the same either way). I offer the following caveat; this is a mathematical analysis. Because you cannot divine preference orders from first-past-the-post, even with a primary, this will show only the possibility that democracy was subverted, not the fact. It is possible that the two "best" candidates went through to the general in all three cases, though I think it is somewhat unlikely to have been true in all three cases, particularly the two mayoral primaries.

The 4th District Primary of 2009




Matt Potter



Kerry Gauthier



Gordon Grant



Heath Hickok



Celia Scheer



12,288 votes were cast in this election for five candidates. To democratically win your way into the primary (in the same manner that RCV would choose) took 763 votes. Kerry Gauthier was the only candidate to accomplish this. If you were the 764th vote or higher, you would have been better off voting for another candidate that you liked (ex. If your preference order went Gauthier > Hickok > Scheer > Potter > Grant, you would have cast your vote for Hickok if you had enough knowledge of how everyone else was voting - this is one way the system encourages what's called favorite betrayal.). All votes for Potter, Hickok, and Scheer were wasted, as were all votes for Gauthier in excess of the 763rd vote (technically under this system, all votes in excess of the 473rd vote were wasted, but I will be using the more restrictive definition of "wasted"). That's a total of 1,328 "useful" votes out of 2,288, which means 42% of the people who voted for that seat had about as much effect as staying home would have had. In this case, it is certainly possible one of the three eliminated candidates was the Condorcet winner (this is still possible under RCV too unless you adopt the variant known as WBSRCV - I imagine that's a little too complex for election officials, even with the open-source code available to automate the pairwise calculations, and it's less likely to pass referendum).

Here is a simple hypothetical ranking scenario under which the two worst candidates were sent to the general (I've changed the names so as not to slight any of these candidates that I know nothing about):



Smith > Johnson > Doe > Bloggs > Miles


Bloggs > Johnson > Smith > Doe > Miles


Miles > Johnson > Doe > Smith > Bloggs


Johnson > Smith > Doe > Miles > Bloggs


Doe > Johnson > Bloggs > Smith > Miles


This is highly simplified, of course, because not every person who has Smith as their first choice would have Johnson as their second choice, and some people will only vote if their first choice is in the running, but I don't want to clog up this post with more math than I need to. Feel free to check these calculations if you are so inclined. It's also - and I know I should stress this - entirely hypothetical. One of the great things about RCV is that you can get actual information out of the voting data, rather than just "I support, I do not support". After an election using RCV, we can run lots of analysis on the data to figure out whether it's actually making a difference and how, because we'll be able to do actual (rather than hypothetical) comparisons.

In a hypothetical match-up between Smith and Bloggs, they both get all the votes from people who have them as their first choice, making it 135:1006. The people who would otherwise have voted for Miles prefer Smith to Bloggs, making it 700:1006. The people who would otherwise have voted for Johnson also prefer Smith to Bloggs, making it 1172:1006. The people who would otherwise have voted for Scheer prefer Bloggs to Smith, making it 1172:1116. Therefore, in a head-to-head between Bloggs and Smith, Smith wins. The rest of the calculated match ups in this hypothetical scenario follow.

Smith v Bloggs

1172 to 1006

Winner: Smith

Smith v Miles

1723 to 565

Winner: Smith

Smith v Johnson

700 to 1585

Winner: Johnson

Smith v Doe

1613 to 675

Winner: Smith

Bloggs v Miles

1251 to 1037

Winner: Bloggs

Bloggs v Johnson

1006 to 1172

Winner: Johnson

Bloggs v Doe

1006 to 1172

Winner: Doe

Miles v Johnson

565 to 1723

Winner: Johnson

Miles v Doe

565 to 1723

Winner: Doe

Johnson v Doe

2178 to 110

Winner: Johnson

These are all the pairwise matchups. As you can see, both Miles and Bloggs actually lose the majority of their matchups, because outside of their core of supporters, no one really likes them. Miles loses every match up, while Bloggs loses all but one. The Smith set here only has one candidate: Johnson, who wins in every single head-to-head matchup. That means he's the Condorcet winner, and should probably have (with these made up preference rankings) won the election.

In RCV the election would play out like this: Doe has the fewest votes, so he's eliminated and his votes go to Johnson. Potter then has the next lowest vote total, so he's eliminated and his votes also go to Johnson. Finally, Miles is eliminated and his votes go to Johnson, which pushes him over simple majority and makes him the winner. (The WBSRCV variant works a little differently, but in this case would still elect Johnson. There are other cases where two-stage first-past-the-post, RCV, and WBSRCV all elect different people, but they're thought to be somewhat rare - and without a ranking system in place, we don't actually have the data to see whether or not they're rare.)

Mayoral Primary of 2003
That's probably enough for you to get the picture, but I did want to touch on one of the most suspect of the (single-winner election) primaries. See for yourself:




Charlie Bell



Herb Bergson



Joanne Fay



Greg Gilbert



Thomas Huntley



Vernon LeTourneau



Jim Stauber



This is pretty obviously not a good way to pick out candidates, as we have a huge number of wasted votes. Only 42% of the voters decided on which two candidates were going to be in the general election. No wonder turnout for the primaries is so low if you have such a large chance of being disenfranchised. The difference between second and third is 331 votes. The number of votes that went to someone in 4th place or lower was 27 times that; those are people who should have engaged in favorite betrayal and voted for someone that they liked less than the person that they voted for (or who engaged in strategic voting but miscalculated the outcome due to incomplete information).

Conclusions So Far
I think this answers the "Does it even matter?" question fairly well. Two-stage first-past-the-post is only a good system when you already have broad consensus on who the top three candidates are - and the measure of a voting system should not be how it responds to consensus, but how it responds to discord. This is all from the viewpoint of whether or not the system is democratic; there are numerous reasons to adopt RCV beyond mere arguments of whether or not the system is electing the right people, such as the fact that consensus-building has to happen prior to the vote rather than at the voting booth. If you've heard someone say, "I like him, but I don't think he can win", you know what I'm talking about. The evidence is also pretty good that RCV would save the city money, especially if the public school elections move to IRV (or one of its variants) as well, which is always a plus.

To Be Continued
I will be going through the multi-winner at-large elections some time in the future. Those work a little differently, and there are different conclusions to be drawn from the data.

Friday, February 10, 2012

Supreme Court Decision a Day: Roe v Wade

The vast majority of Supreme Court decisions are actually about pretty boring stuff. There's case set to be heard in a couple of days, Taniguchi v. Kan Pacific which will determine whether the payment for translation services extends to the payments for translating text documents. The case is over a matter of slightly more than $5,000, and the outcome, no matter what's decided, will be of little interest to anyone. So most of what the Supreme Court decides is not of interest to anyone but lawyers and judges, and you can go your whole life without ever hearing about the outcome or having it affect you. Like Brown v Board, this is not one of those cases.

Full Text: At Findlaw.

Held: Abortion is legal in the first trimester at the discretion of a woman's physician, can be limited by the State in the second trimester, and can be limited or made illegal in the third trimester.

Remember what I said in the last post about the Supreme Court having a limited amount of institutional legitimacy that it must carefully spent? Well, this was one of those decisions that spent a whole bunch of that institutional legitimacy.

A quick overview: this was actually three cases brought before the court. The first was Roe, an unmarried woman who had an abortion. The second was a married couple who might like an abortion in the future (due to medical issues). And the third was a doctor who kept getting arrested for performing abortions. The second and third cases were dismissed, though that's kind of moot because of how broad the ruling was - I believe this is what you'd call a "shotgun approach" to the judiciary; present a bunch of cases and then hope that one of them is decided in your favor. (Though of course it's much more complicated than that, I will grant you.)

So, with the married couple and the doctor out of the way, we get to the meat of the issue; to what extent does a right to abortion exist? The first question that has to be gotten out of the way is whether or not a fetus is a person; the Court says that there's no good basis for this in common law, the Constitution, or anywhere else. They leave aside the question of when metaphysical personhood begins, which is probably wise.

In the Court's brief history of abortion law in the United States, they show evidence of a gradual tightening, which they attribute mostly to the medical problems inherent in it. For this reason they place a great deal of importance on the mother's health in their decision, which is part of the State's interest and why they are allowed to make any laws at all about abortion. As a pregnancy goes on, an abortion gets more and more dangerous, which means that the State's interest becomes greater and greater. Prenatal life is somewhat secondary to that, coming into play only once "viability" is reached, which the Supreme Court (somewhat arbitrarily) places at the end of the second trimester (which they would later overturn).

"Viability" is one of my big problems with this case. The real problem with viability is that's it's incredibly vague; there is a percent chance at every point in a pregnancy where the fetus could be grown into a human being. If the fetus has a 25% chance of surviving outside the womb, is that truly at the point of viability? It's a tricky question, so the Supreme Court just made an arbitrary distinction - which really should have been the job of the legislature rather than the judiciary (if they could get their heads out of their asses). There is also the (stated) problem that it can be difficult to know when exactly a child was conceived. And further to that, there is another problem with viability; as time goes on, and technology gets better, the amount of time between conception and viability continually decreases. With IVF, we're at the point where we can "conceive" outside of the body, and it's not so far fetched that in another fifty years we'll be at the point where it's technically possible to remove an embryo or fetus at any stage of pregnancy and keep it alive.

Here's one of the other things that I don't like about Roe v Wade; it fails to address a couple of the criticisms. The Supreme Court just sort of side-steps the whole issue of when "life begins" by saying that since no one else can seem to come to a conclusion, they don't have to. The counter to this is the quite logical argument that if we're balancing prenatal life against privacy (as Roe says), and we don't know what the effect on or importance of prenatal life is, then we should err on the side of life - murder being a much graver issue than restriction. This could have been nullified, or at least partially nullified, by trying to bring some evidence against these notions of where life "begins", or countering the whole concept of there being a time when life begins.

The Supreme Court also ignores evolving understanding of embryology that (in part) led to this divergence of opinion. Part of the reason that the Romans believed as they did is that they had an incomplete understanding of what was really going on. They didn't know anything about cells, let alone DNA, sperm, or eggs. So giving such weight to prior precedent, when it was founded on false premises, seems foolish. (If I remember correctly, the Romans believed that the man's ejaculate was like a seed that grew in the woman's menstrual blood, and the soul was placed inside at some point after the body was built.)

Regardless, I agree with the decision, I just feel that it could have more fully addressed a few things.

The Good Stuff:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life.

Thursday, February 9, 2012

Supreme Court Decision a Day: Brown v Board of Education

So I recently started reading Supreme Court opinions. This initially started when I was busy proving someone wrong on the internet, but I was quite surprised to find that they're (mostly) very human-readable. I suppose I just assumed that SCOTUS opinions were going to be arcane and incomprehensible, and so I had never read one. When Alyssa got me a Kindle for my birthday, I decided that it was time I begin a more in-depth reading of these opinions. With that in mind, I downloaded something from the Kindle store that claims to be "The 50 most cited Supreme Court Cases". I plan on going through these at a rate somewhat slower than one a day, but that's not as good of a title. (Some of these I learned about in school, of course, but that only covers about half a dozen of the fifty.) I will mostly not be taking in any outside sources or outside commentary. Also, be warned that if you're a lawyer you'll probably find this commentary to be clumsy and unprofessional.

Held: Separate is not equal.

The first couple of cases in this collection are all really famous ones, so I'm going into this one with a bit more foreknowledge than I will be for the later ones. This is the case that overturned the doctrine set by Plessy v Ferguson - and good riddance. The beginning of the case goes over some of the history of both education and the law. In this case we see some of the slow evolution that always seems to move Supreme Court towards some monumental decision. Prior to this, there were a number of cases where facilities and services were separate but not equal - the black facilities always being worse (and cases which established at which times separate had to be equal). This one basically just comes out and says that even if you have equal facilities, budget, and staff, that's still not enough, because there are some things that are intangible but still required for true equality.

There are two things that I really like about this decision (aside from the outcome, which I of course agree with). The first is that it's unanimous - with a decision as large and as powerful as this one, it's nice to know that there weren't some holdouts to sour the whole thing with a dissent. Of course, there's a good reason for the unanimous decision, which isn't quite as feel-good.

The reason that the Court has lifetime appointments is so that they don't have to worry about re-elections if they make an unpopular decision, and so that they're relatively uncorruptable. But there's this concept called "institutional legitimacy" which says that the Supreme Court is only trusted insofar as the public believes that it makes fair decisions. If the Supreme Court makes bad decisions, the public will stop trusting them, and if the public stops trusting them then politicians will just start ignoring what the Supreme Court says. President Andrew Jackson famously said of the decision in Worcester v Georgia, "[Chief Justice] John Marshall has made his decision; now let him enforce it!" That sounds really badass, and it's the sort of thing that people love about Jackson, until you realize that he was talking about forcing the Native Americans off their lands and killing them. I hate Andrew Jackson. The same thing happened with this decision in a number of states because of shitty people, but it would undoubtedly have been much worse if this decision had come down 5-4 instead of 9-0.

So since they knew that Brown would be unpopular, the de-segregation Justices waited and plotted until they could wrangle a unanimous verdict with the force of their legal and emotional might. It's slightly less feel-goody, but I still really like that about this decision.

The second thing I like about this decision is that it came in advance of the Civil Rights movement had really gotten started - it's a rare instance of the government anticipating the turning of the times - something that seems to be the sole province of the Supreme Court. And at the same time, I don't like that it took so long to correct something that's so clearly wrong. I have a tough time with the past; I've heard it said a number of times that you shouldn't judge people because they're a result of the society that they grew up in ... but I always do. The thing is, the reasons for opposing segregation are the same today as they were then. The reasons for opposing slavery today are the same as they were three hundred years ago. In fact, you can read abolitionist texts from that side that say pretty much what I would say now if someone inquired why that's wrong. These same arguments were available to the people in the past, and they chose to reject them. So I'm forced to conclude that the large majority of Southerners throughout American history were just assholes, rather than victims of their upbringing. So while I really liked Brown, it makes me kind of sad.

References to Other of the 50 Cases: Plessy v Ferguson.

My Favorite Bit:
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
That's quite powerfully written, don't you think?