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Florida Constitution Revision Commission

PUB 700142: Transparent Redistricting Through Use of Software Algorithms by Andrew Heneen

ARTICLE III: LEGISLATURE, New Section.

Catchline: Transparent redistricting through use of software algorithms
  1. It is the intent of this section to provide for a redistricting process that both maximizes transparency and seeks to substantially eliminate subjective factors in the decisionmaking process by using a software algorithm, based on weighted metrics as decided by the Legislature, to compute the best possible district maps that balance the requirements of the federal constitution, state constitution, and federal election laws.
  2. Definitions:
    1. 'Federal general census' means the decennial census of the total population conducted by the federal government pursuant to Article I, Section 2 of the federal constitution.
    2. 'Metric' means any discrete, quantifiable measure or an equation weighing multiple sub-metrics; when a metric is an equation weighing multiple sub-metrics:
      1. the metric shall represent a discrete characteristic,
      2. the sub-metrics shall adhere to the requirements of 'metric' or 'metrics', where those terms appear in this section, and
      3. the weight of the sub-metrics shall adhere to the requirements of the weight of metrics, where that appears in this section.
    3. 'Software algorithm' means the entire software program used to transform the , not inclusive of:
      1. the computer operating system,
      2. the computer programming languages in which the software algorithm is written,
      3. maps or satellite imagery used merely as a background image to assist the public in visualizing the input and output of the software algorithm, but in no case include any data used as input for determining the new districts, and
      4. any separate computer program both written and used to aid the public in visualizing or accessing the output of the software algorithm, such as a portal for browsing the output in a web browser or a software program designed for use on a common computer operating system used by the general public if the software algorithm is written for a supercomputer or similarly difficult for the general public to access or use. [Note: The phrases "common computer operating system" and "difficult for the general public to access or use" should be defined more precisely, eg. comprising 20% and 5% of personal computers in the United States, but even that needs to reflect future technology and the fact that smartphones, handheld gaming systems, and even appliances on the 'internet of things' can be considered 'computers'.]
    4. 'Weight' shall be intger between and inclusive of 1 and 10.
  3. The creation of congressional and legislative district boundaries shall be determined through the use of a software algorithm that determines the highest-scoring district map for each office, which shall become the official district boundaries, based on the following process:
    1. No later than 1 January of the year of a federal general census, the Legislature shall decide what metrics to consider when determining district boundaries and, in a separate vote or votes, the weight given to each metric. If a decision is not made by the Legislature by the 1 January deadline or for any changes between the deadline and 1 April of the year of federal general census, as an incentive for the Legislature to act before the 1 January deadline, the vote threshold shall be increased to 60 percent. After 1 April of the year of a federal general census, any further changes of these metrics and the weight given to each may only be made in direct response to a decision of a state or federal court and only for the limited purpose of addressing legal insufficiencies identified in the decision of the court; such action is permissible if the decision is being appealed. [Note: There MUST be some mechanism to prevent the Legislature from abdicating their responsibility under this subsection, eg. by just not bothering to vote on what metrics should be considered or their weight and leaving the job to the courts after April 1. The only two ideas that have crossed my mind are (1) personal fines levied against individual legislators, but this would only harm the poorest legislators, and (2) using the threat of early elections, but this would be a perverse incentive to any party that expects to gain seats in the Legislature if an election were to be held early. There should also be a mechanism to prevent the leadership of the House and Senate from preventing a vote on individual metrics and their weight.]
    2. The State shall compile a geographical information system by 1 January of the year of a federal general census incorporating, at a minimum, the following datasets: the boundaries of the State; the boundaries of all political subdivisions; paths of all government-maintained roads; all known residential dwellings; and all available demographic data collected in the previous federal general census. The datasets should be up-to-date as of the preceding 1 December or as otherwise available or reasonably possible, but may be later updated to reflect. These databases shall be made available to the public both as raw data files and, when feasible, in a visual context, such as through a geographical information system, by 1 February, or within 14 days for any updates to datasets after 1 February, for scrutiny. The state shall provide a process for the public to point out errors, omissions, or other problems with the datasets.
    3. The software algorithm shall then use the input datasets and the weighted metrics to calculate the district map that best represents the weighted metrics.
  4. Legal challenges:
    1. To permit the Legislature to candidly debate the metrics and weight given to each without undue interference by the judiciary, no court shall entertain any case or issue any orders related to the selection of metrics, the weight given to each metric, or the software algorithm until 1 April of the year of a federal general census. This subsection shall not prevent the Legislature from establishing processes outside the judiciary for the public to comment about or challenge the redistricting process that include decision-making persons acting in a judical role. A plaintiff may not challenge errors, omissions, or other problems with the datasets until 14 days after the challenged error, omission, or other problem has been reported to the state via the process provided for in subsection (c)(2).
    2. To the fullest extent that this subsection can permissibly compell a federal court to consider these demands, including consideration of comity over or with respect to any federal law or constitutional provision and understanding the intent of this section as stated in subsection (a):
      1. federal courts shall adhere to subsection (d)(1), and
      2. any federal court adjudicating any controversy regarding the selection of metrics or weight given each and finding a violation of the federal constitution or federal election law shall identify with specificity the inadequecies of the metrics or their weight suffiently for the Legislature to fulfill their duties outlined in subsection (c)(1).
    3. For efficiency and the reduction of costs, the Legislature may establish a procedure outside of the judiciary for the public to point out errors or omissions in the datasets produced under subsection (c)(2).
  5. Transparency being of great importance, the software algorithm and all datasets used to determine congressional and legislative district boundaries shall not be encumbered by copyrights, patents, licenses, or other similar restrictions that restrict the ability of the general public to access, view, analyze, disseminate, share, or reverse engineer the software algorithm, datasets used as input, and output results of the software algorithm, except that:
    1. the state may assert copyright and obtain patents for itself, but may only enforce these rights against other governments or anyone working on their behalf to create new officeholder district boundaries for the purpose of making them pay a fair share of the development costs of the software algorithm and may not use any copyright or patent protection to prevent public scrutiny of the software algorithm, input datasets, output results, or prevent the public from running the software algorithm to verify the results obtained by the state or analyze its operation;
    2. when third-party copyrighted material or patents are necessary to include in the software algorithm, the state shall obtain licenses on reasonable terms and costs to use such copyrights or patents on terms that:
      1. do not hinder the public's ability to access, view, or reverse engineer the software algorithm, input datasets, or output results,
      2. do not hinder the public's ability to non-comercially share or disseminate the software algorithm or datasets.

[Note: There may be additional issues that need to be addressed as exceptions in subsection (e).]