An unsupported claim in Rucho v. Common Cause

Maps of a Republican gerrymander of North Carolina and a Democratic gerrymander of Maryland. The North Carolina map was ruled a racial gerrymander, redrawn, and the redrawn map was immediately challenged. (From public domain images.)

The citation trail

Roberts mentions two specific historical episodes of gerrymandering or alleged gerrymandering (Virginia in 1788, Massachusetts in 1812), both of which took place after the Constitution was ratified. Roberts also cites Antonin Scalia’s plurality opinion in the 2004 Vieth v. Jubelirer case (link) as providing evidence.

The gerrymander protected by the Vieth v. Jubelirer decision. (Public domain image.)

Malapportionment, gerrymandering, and partisan gerrymandering

Malapportionment refers to cases in which representatives represent very different numbers of subjects. The infamous “rotten boroughs” of England were an example of malapportionment. A trio of court cases in the 1960s established that the courts could and should address malapportionment in the drawing and redrawing of electoral districts (Baker v. Carr in 1962, Wesberry v. Sanders and Reynolds v. Sims in 1964).

The five episodes

The dates of these five episodes suggest that only one of these episodes would have been likely familiar to many Framers at the Constitutional Convention — but as a case of simple malapportionment, not as a partisan gerrymander.

Antique map of Pennsylvania
Antique map of Pennsylvania
Pennsylvania’s early counties. (Public domain image).
1729 map of North Carolina. (Public domain image.)
A picture of the western counties of Virginia in 1776, including the county of Kentucky (corresponding to the modern state).
A picture of the western counties of Virginia in 1776, including the county of Kentucky (corresponding to the modern state).
One large western county was Kentucky, referred to as “Kentucket” in some sources. This later became an independent state. (Image from source.)
Map of Virginia’s fifth district in 1788.
Map of Virginia’s fifth district in 1788.
Image taken from Griffith‘s 1907 book, which in turn was reprinting an 1818 map.
Political cartoon from 1812 displaying the salamander-shaped “Gerry-mander” district.
Political cartoon from 1812 displaying the salamander-shaped “Gerry-mander” district.
The famous political cartoon that popularized the term “gerrymander.” (Public domain image.)

The gerrymandering timeline

In Vieth, Scalia provides a key quote from Griffith:

Timeline of key events

The Framers’ actual concerns

As documented in the records of the proceedings of the Constitutional Convention, the Framers did express related concerns at the Constitutional Convention. They were concerned about malapportionment, and about state legislatures manipulating elections for their own nefarious purposes. The latter concern did clearly lead to the clause in Article 1 §4 that is referred to in the Vieth plurality and Rucho majority. In particular, James Madison, on August 9th, 1787, arguing in favor of the clause in 1 §4 permitting Congress to regulate federal elections, said:

James Madison (1783 painting by Peale; public domain image).
Nathaniel Gorham. (1792 potrait by Peale; public domain.)

Conclusions

As we have seen in the above analysis, the claim in Rucho that the Framers were familiar with partisan gerrymandering at the time the Constitution was drafted and ratified is not supported by the citations provided. Both examples referenced explicitly in support of this claim happened after the Constitution was ratified.

Dr. Tomas McIntee is a mathematician and occasional social scientist with stray degrees in physics and philosophy.

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