The blog is back

I realize that it’s neem a long time since I’ve posted anything new.

I recently had to change hosting providers and unfotunately I neglected to export the blog before changing the nameservers. I was eventually able to figure out how to see the text and locate the graphics. I’ll try to post more often now.

Some Weaknesses in Current Arguments Against Gerrymandering

In anticipation of redistricting following the 2020 census, in light of several pending court challenges, and possibly because Republicans are seen as the current beneficiaries, there has been much comment in the news media about political gerrymandering. Although I agree that the ideal means of drawing district boundaries would not consider the partisan make-up of the district, the current criticisms of gerrymandering are inadequate because they do not propose sufficient standards as to how districts should be drawn and seek a judicial remedy without an adequate textual basis in, or manageable standards drawn from, the Constitution.

To start with basics: Where a legislature consists of representatives of particular geographic constituencies that do not have any significance apart from the selection of legislators, it is necessary for someone to draw the boundaries that will define those constituencies, typically called “districts” in American parlance, hence the term “redistricting.” The term “gerrymander” in relation to the drawing of districts to maximize the electoral success of one party, comes from criticism of Massachusetts state senate districts established by legislation signed by then-governor Elbridge Gerry (a signer of the Declaration of Independence, delegate to the constitutional convention who voted against the Constitution, and vice president of the United States).

In our two-party system, expected voters for each party are not equally distributed on a geographical basis. Some areas will have more Republicans than Democrats, and vice-versa. A perfectly gerrymandered district layout would concentrate the expected voters for the party not controlling the redistricting process into as few districts as possible where its candidates would be expected to win by large majorities. Expected voters for the controlling party are, on the other hand, put into districts where they have much smaller, but still safe, majorities. Modern statistical methods allow for very gerrymandering to be very effective. This, the editorials tell us, is bad because electoral results should mirror the votes case for each party. (I am not convinced that a vote for a candidate running under the “Party A” label is necessarily the same as a vote for Party A to have a legislative majority. Voters can choose individuals despite their party labels.)

As a very simple example, imagine a state with 500,000 voters equally divided between supporters of Party A and Party B (250,000 each) and the need to create five districts, each with 100,000 voters. (In this example I am ignoring the distinction between voters and non-voter residents.) If Party A is in control of the redistricting process, it would seek to pack as many Party B supporters as possible into one district (let’s say that the geographic distribution allows for a district of 90,000 expected Party B voters and 10,000 Party A voters). That leaves 240,000 expected Party A voters and 160,000 expected Party B voters. If Party A can allocate each group equally into the four remaining districts, it is to be expected that Party A will safely obtain four of the five districts in every election, despite equal support in the state as a whole.

Redistricting does not affect the United States Senate because the districts from which Senators are chosen are whole states whose boundaries are not subject to change for the purpose of choosing Senators. Redistricting is also inapplicable to smaller legislatures whose members are chosen on an “at large” basis.

While it is theoretically possible to base legislative representation on otherwise existing geographical units, the practice has been found to be unconstitutional because it results in districts that are too far divergent in population, a consideration that trumps other concerns. (For example, as I mentioned elsewhere, in the New Jersey Senate, each county was formerly represented by one senator, until the rejection of the so-called “federal analogy” by Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), eventually resulted in the current structure, in place since the 1973 election: 40 legislative districts, with substantially equal population, each electing one senator and two members of the general assembly.) The composition of the United States Senate is specifically set forth in the Constitution and therefore it is probably the only elected legislative body in the United States that is not subject to a population equality standard for its electoral districts.

It is a basic fact of human existence that people will tend to act in what they perceive to be their own self-interest. Politicians are hardly immune from this tendency. Therefore, given the opportunity to design favorable districts, the party controlling the redistricting process will naturally seek to create them. Politicians will avoid drawing new districts that pit incumbents against each other, but this is also a factor likely to result in oddly shaped districts

The need for substantial equality of population requiring the drawing of district lines and generally overriding other limits on how the districts are delineated (such as respect for the boundaries of political subdivisions) makes it difficult to articulate standards that might make gerrymandering less effective. Most of the recent editorials bemoaning political gerrymandering and applauding or hoping for judicial intervention fail to articulate standards by which districts are to be created or structural methods for their creation.

What are the important affirmative standards that should inform the drawing of district lines? If respect for boundaries of political subdivisions or areas defined by natural boundaries is important, do we not have the technological tools to judge redistricting plans (assuming that the proposed districts meet a reasonably standard for population parity) by the degree to which they show this respect and use that as the basis for choosing the best?

If, on the other hand, the important thing is that the electoral fortunes of each party reflect the votes cast for its candidates, then the time has come to abandon election from districts and to adopt a proportional voting system, such as a party list or multi-member constituencies with a transferrable vote as in the Republic of Ireland.

While there might be general agreement that gerrymandering is not the best way to draw legislative districts, the present debate as reflected in editorial pages has not identified any constitutional basis to prohibit it. Courts may override legislative judgments only as a matter of constitutional imperative, not because they believe some other way would be better , or even more democratic.

This lack of an affirmative guide for the drawing of districts is part of the reasons that courts are ill-suited to devise a remedy or to draw districts themselves. Absent an ascertainable standard drawn from the text of the Constitution, such plans, especially where judges are elected, are likely to be no less political than those emanating from the other branches.

Thus, the remedy for political gerrymandering is not simply to ban or limit the practice, but to articulate and adopt a comprehensive and coherent set of principles for how districts (if there are to be districts) should be drawn. Only then can there be manageable objective standards by which to evaluate any particular redistricting scheme.

Redesigning the New Jersey Flag — Another Idea

Last November Brian Donohue called for the submissions of designs for a new New Jersey state flag. I responded by two posts, the first suggesting that the new flag be a banner of the State’s arms and the second proposing the “New Jersey buff ensign” as an auxiliary flag.

On February 8, 2016, the ten finalists in the design competition were revealed and NJ.com readers were invited to vote for their favorite. I just made a post in which I briefly commented on the ten designs and the voting process adopted. This post will discuss a new design that occurred to me after reviewing the other entries.

All of the Nordic or Scandinavian countries (Norway, Finland, Iceland, Sweden, Denmark) use a design called the Nordic or Scandinavian cross. Here is an example, the flag of Sweden:

If New Jersey adopted a Nordic cross design (say to commemorate the early colonization of part of the state by Sweden), using the state colors blue and buff, the result, would be this:

or this:

Now, suppose we wanted to jazz it up a bit, say by adding the plows from the coat of arms as a canton, we could get this:

The matching blues for the canton and the cross make it a bit awkward looking, so let’s see what happens with the buff cross:

Or we could use Marmocet’s red shield and have a variant of that top ten design:

Redesigning the New Jersey Flag — Comments on the Ten Finalists

Last November Brian Donohue called for the submissions of designs for a new New Jersey state flag. I responded by two posts, the first suggesting that the new flag be a banner of the State’s arms and the second proposing the “New Jersey buff ensign” as an auxiliary flag.

On February 8, 2016, the ten finalists in the design competition were revealed and NJ.com readers were invited to vote for their favorite. This post will briefly comment on the ten designs and the voting process adopted.

Flames were the major element of two of the designs:

Kenneth Huang, Maplewood: The yellow and blue harken back to the original state flag, while the flame symbolizes knowledge, liberty, and power.
Alan Hall, Ontario, Canada: The borders between the buff and blue are cut to resemble an outline of the state. The torch is a simplified version of the one held by the Statue of Liberty. The three flames signify New Jersey’s place as the third state.

The Huang flag’s flame reminds me of the seal of the City of Summit, while the Hall flag is reminiscent of the flag of Indiana

Two of the flags have ray emanating from a sun:

The rays come from a central point, like a lighthouse on the shore or the Statue of Liberty. It also evokes the invention of the light bulb. Three rays symbolizes N.J.’s status as the third state in the union.
Andrew Zega, Paris: The band of buff represents the golden fields of the Garden State. The blue is the sky and the seven-pointed white sun recalls the crown of the Statue of Liberty

The Erickson flag reminds me of the Japanese Naval ensign:

While the Zega flag has a similarity to that of Antigua and Barbuda:

Two of the flags use a design idea similar to that of Barbados and Canada, a symbol charged on a pale:

Dave Martucci, formerly of Wharton: This flag is based on New Jersey’s current flag, but I condensed the design down to just the three plows on blue from the current arms. A Revolutionary War N.J. flag reportedly just had the three plows and a horse’s head on it.
Joe Conklin, Pitman: The traditional colors of New Jersey on a standard three-stripe banner. Thirteen stars represent our original colonies.

As others have commented, the Conklin flag only has twelve stars. In this regard it is like the flag of Europe

As of the writing of this post, the two leading designs in terms of reader votes are:

Andrew Maris, Fair Haven: The flag is inspired by the Jersey Blues Revolutionary War uniform. The militia wore a blue coat over a red waistcoat, often accompanied by a white sash. Three colors and star represent the third state to join the union and the first to ratify the Bill of Rights.
Dan Shelffo, South Orange: The colors, which include N.J.’s official blue and buff uniform colors chosen by George Washington, symbolize beaches, ocean, sky and the state’s woodlands. The pine cone represents trees that thrive in the pine barrens through sheer resiliency.

The final two, and my personal favorites, make use of New Jersey’s coat of arms (three plows on a shield), although in one case the tincture of the shield is changed.

Andrew Jones, Perth, Australia: The cross reflects the flag of the isle of Jersey, from which New Jersey takes its name. The rest is from the current New Jersey flag.
Reddit user Marmocet: The cross shows N.J.’s heritage as an English colony. Buff and blue are used on N.J.’s current flag. The shade of red was taken from the cuffs and collars of NJ revolutionary war uniforms

(What is supposed to be blue on Marmocet’s flag must be very dark as it appears black to me.)

Comments on the Voting Process

While I will acknowledge that because this is a private undertaking, Brian Donohue has every right to establish whatever procedure he wants for the voting, I do have some comments, in no particular order, with regard to the procedure he did establish:

  1. There were too many finalists. There are a number with similarities that may dilute the vote and give more unique designs an advantage. I would have preferred at least several rounds of voting or some form of transferable vote.
  2. The deadline for casting votes was not disclosed.
  3. There is no assurance that interested readers will only vote once.
  4. Current results are disclosed.

Redesigning the New Jersey Flag — Part 2

In a recent post I responded to Brian Donohue’s call for new designs for the New Jersey flag by suggesting it instead of showing the entire achievement of arms on a buff field the flag consist of a banner of the arms, like Maryland’s.

proposed New Jersey flag

In this post I am going to suggest an additional flag design, an ensign, be adopted that can be the basis of flags for state officers and departments.

This proposal is loosely based upon the use by British institutions and territories of flags based upon the red, white and blue ensigns (flags of those colors with the Union Jack in the upper corner or canton, the White Ensign also is quartered by a red cross of St. George), with arms or other symbols added to the fly, said to “deface” (not meant pejoratively) the flag:

For example, the red ensign is the basis of the flag of Bermuda,

while the blue ensign is used by the Northern Lighthouse Board:

ad that practice been followed prior to the American Revolution, the following can be posited as a potential New Jersey colonial flag:

(Note that the Union Jack is the version used before the Union with Ireland in 1801.)

As an aside, here are some flags used by the Continental Army during the Revolution:

Grand Union (or Cambridge) Flag
Betsy Ross Flag

Using the British Red Ensign as a model, here is what an American Red Ensign might look like (based upon the Betsy Ross flag):

American Red Ensign

And here is that flag “defaced” by New Jersey’s arms:

All of the foregoing is by way of setting up the proposal for New Jersey to have its own ensign, which I call the New Jersey Buff Ensign: 

The New Jersey Buff Ensign can then be the basis for several specialty flags, such as for the governor

(The horse’s head is from the crest of New Jersey’s arms and is displayed on the torse (wreath). Please, no comments that the wrong end of the horse is shown.)
(Note that the horse’s head now faces the fly rather than the hoist and the torse has been omitted.)

Redesigning the New Jersey Flag — Part 1

In a recent article Brian Donohue of NJ Advance Media suggested that New Jersey’s flag should be redesigned. He is certainly correct that our flag, which consists of the whole achievement of arms (shield, helmet, crest supporters and motto; technically the “coat” of arms is only the shield) on a buff field is not well-designed.

I am not here trying to be critical of the arms themselves, just the use of the entire display on the flag. Donohue says that it is an example of a  “seal on a bed sheet,” and if you look at a display of state flags, you will see that is quite a common shortcut to a flag. The design is neither simple nor memorable. It is distinctive only in the buff background. (Most states using this pattern have blue as the background color.)

When designing a flag, one should keep in mind that it is a piece of cloth; there may not be enough wind so that it is all readily visible. It should also be easily recognizable. I get particularly annoyed when words and numbers find their way onto a flag.

While I think redesigning the New Jersey flag as Donohue suggests is a wonderful exercise, one need not go to far or look to use entirely new symbols. Instead, I believe that we should look to the nearby state of Maryland for converting the New Jersey’s coat of arms into a simple and memorable flag.

Maryland derived its arms from those of Cecilius Calvert, Lord Baltimore, who was the original proprietor of the colony. The entire achievement as currently used is even more complex than New Jersey’s arms:

I am not here trying to be critical of the arms themselves, just the use of the entire display on the flag. Donohue says that it is an example of a  “seal on a bed sheet,” and if you look at a display of state flags, you will see that is quite a common shortcut to a flag. The design is neither simple nor memorable. It is distinctive only in the buff background. (Most states using this pattern have blue as the background color.)

When designing a flag, one should keep in mind that it is a piece of cloth; there may not be enough wind so that it is all readily visible. It should also be easily recognizable. I get particularly annoyed when words and numbers find their way onto a flag.

While I think redesigning the New Jersey flag as Donohue suggests is a wonderful exercise, one need not go to far or look to use entirely new symbols. Instead, I believe that we should look to the nearby state of Maryland for converting the New Jersey’s coat of arms into a simple and memorable flag.

Maryland derived its arms from those of Cecilius Calvert, Lord Baltimore, who was the original proprietor of the colony. The entire achievement as currently used is even more complex than New Jersey’s arms:

Imagine that design on a white bedsheet; it would have the same issues as New Jersey’s flag.

Maryland, however, did not follow the example of so many other states. It uses only the design on the shield — the actual coat of arms — and uses a banner of the arms as its flag:

Maryland’s flag is rated as one of the best flag designs. I was in Maryland on vacation this summer and I saw it, or elements of it, all over.

Therefore, my suggestion for a redesigned New Jersey flag is simply to use the a banner of New Jersey’s coat of arms:

In a future post I will propose some additional flags using this design as a starting point.

A Problem of Bicameralism

When the United States fought its war for independence from Great Britain, the various colonies sent delegates to an assembly known to history as the Continental Congress. This loose organization was formalized by the adoption of the Articles of Confederation, which called its legislative body the “United States in Congress Assembled.”

Regardless of the name by which this congress was known or its exact power or structure, each of the colonies/states had one vote (regardless of the number of delegates it sent). When the government under the Articles of Confederation proved ineffective and the Constitutional Convention was debating the composition of the legislature to be proposed, larger states urged that voting power be proportional to population (the Virginia Plan), while smaller states sought to retain equal voting power (the New Jersey Plan). Ultimately the convention agreed to the Connecticut Compromise, which provided for two houses in the new Congress: the House of Representatives (states represented in proportion to population) and the Senate (each state choosing two senators).

This two-house structure for a legislature is called bicameralism, from the Latin word camera, meaning “chamber” or “room.” (In this context the words “house” and “chamber” are synonymous.) The Congress under the Constitution was of course not the first bicameral legislative body. Not only did the British Parliament (whose authority over America was denied by the Declaration of Independence) have two chambers, the House of Lords and the House of Commons, but two houses were the usual, if not the sole, manner of organization of colonial, and later state, legislatures.

As the Connecticut Compromise shows, bicameralism allows for different methods of selection or representation. (Until the Seventeenth Amendment, senators were chosen by state legislatures rather than popular vote.) Until the reapportionment cases of the 1960s, some states used factors other than population equality to apportion seats on one house of their state legislature. In New Jersey,for example, each county was formerly represented by one senator, until the rejection of the so-called “federal analogy” by Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), eventually resulted in the current structure, in place since the 1973 election: 40 legislative districts, with substantially equal population, each electing one senator and two members of the general assembly.

It is this method that is described by the title of this post. Each district is represented by legislators elected by the same voters (and, in three out of five elections, at the same time). The result (encouraged by the gerrymandering used after each census to create the districts) is that almost every (if not every) district is represented by three people from the same party. What, then, is the point of having two houses? In a future post I will suggest an alternate method of selecting senators that might answer this question.