On June 29th, 2019, the Supreme Court issued a ruling in the case of Rucho v. Common Cause. A 5–4 majority held that partisan gerrymandering is something that federal courts are constitutionally unable to address (link). Section II part B begins with the following inadequately-supported claim:
Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.
Chief Justice John Roberts wrote the majority opinion. He gives the following argument: Since the Framers were familiar with partisan gerrymandering, they wrote Article 1 §4 with partisan gerrymandering in mind. However, the citations provided in Rucho do very little to establish that the Framers were familiar with gerrymandering, much less that they had partisan gerrymandering in mind when writing Article 1 §4.
I see little reason to believe that the Framers were familiar with partisan gerrymandering at the time of drafting and ratifying the Constitution. They were definitely familiar with malapportionment, and had their own concerns about how to draw fair districts, but neither gerrymandering nor organized political parties appear to have ranked among those.
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.
Going to Scalia’s opinion in Vieth, we find reference to the previous two episodes, as well as one additional episode of alleged gerrymandering (North Carolina in 1732), which was drawn from a 1907 book titled The Rise and Development of the Gerrymander, by Elmer Griffith. (In the Vieth opinion, Scalia uses 1974 as the year for this book.)
Griffith’s book provides two other examples of potential gerrymandering that predate the Constitutional Convention. Adding these to the ones explicitly mentioned in either Rucho or Vieth gives us five episodes to consider as possible evidence provided through the citation trail.
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).
Griffith gives the following definition in his 1907 book:
Districts would not seem, therefore, to be gerrymandered unless they were established especially for election purposes and were formed intentionally in a particular manner for partisan advantage.
Gerrymandering refers to the practice of redrawing district lines unfairly in order to try to predetermine the outcome of elections. Gerrymandering and malapportionment can happen together or separately. The United States Senate, for example, qualifies as malapportioned; however, the district lines used for electing Senators were not drawn for the purpose of elections. They instead match up to the state boundaries.
Gerrymandering can be done with different motives. A gerrymander that targets racial groups is a racial gerrymander, while a gerrymander that targets political parties is a partisan gerrymander. The majority opinion in Rucho only protects political gerrymanders, not racial gerrymanders or malapportionment.
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.
Pennsylvania, 1705: Griffith takes the first definite episode of gerrymandering in the United States as occurring in Pennsylvania in 1705. In 1701, a new Frame of Government established a twenty-six member assembly with four members from each county and two from Philadelphia. In 1705, the three counties comprising the modern state of Delaware broke away from Pennsylvania. Representatives were reallocated to include eight per county, with Philadelphia still only having two representatives.
This was malapportionment, but not truly a gerrymander by Griffith’s own definition; neither Philadelphia nor the counties’ boundaries were redrawn in 1705. Further, this was eighty-two years before the Constitutional Convention, and none of the Framers had been yet born; Benjamin Franklin, the oldest delegate, was born in 1706.
Choosing to allocate a disproportionate number of representatives to different political districts remains illegal by the precedent of Reynolds v. Sims, and is not protected by the majority opinion in Rucho.
North Carolina, 1732: The governor of North Carolina (George Burrington) was accused of trying to pack the lower house of North Carolina’s assembly by forming new districts with small numbers of loyalists, in some cases as little as 30 families. This could indeed be classified as a gerrymander by Griffith’s definition, since the governor relied on drawing new districts from inside of old districts; however, his technique relied on malapportionment, rather than creative reshaping of similarly-sized districts.
Were the Framers familiar with this case? In 1732, Benjamin Franklin was twenty-six and publishing the Pennsylvania Gazette, and might very well have been aware of this episode when it happened. He may even have remembered it fifty-five years later while at the Constitutional Convention. However, his speaking time and presence were limited by poor health, and his few speeches seem to have been well-documented.
Roger Sherman of Connecticut, the second oldest delegate, turned eleven in 1732; Hugh Williamson, the oldest of the North Carolina delegation, wasn’t born until 1735. It seems inappropriate to presume that this case of malapportionment was familiar to the Framers as a group at the Constitutional Convention without additional supporting evidence.
The creation of disproportionate districts remains illegal by the precedent of Wesberry v. Sanders, and is not protected by the majority opinion in Rucho.
Virginia, 1776: The third specific instance identified by Griffith happened in 1776. The new constitution of Virginia called for adding a second chamber, the Senate, to the Virginia state government. Senators’ districts were created from combinations of 1–3 counties, with no counties divided.
Western counties were larger, and so the western districts were generally larger. Griffith points this out in order to argue that this was an early episode of gerrymandering. His argument is based on Jefferson’s Notes on the State of Virginia and the official census. These show the Senate districts were malapportioned by the time of 1781 and 1790, respectively.
Many of the Framers, particularly the Virginians, would have been aware of Jefferson’s charge of malapportionment. Neither Jefferson nor Griffith provide any evidence that the regional malapportionment was intentional, and Jefferson did not make that claim in his Notes. Gerrymandering requires intent, and thus this was likely not a case of gerrymandering.
The most recent population figures available to lawmakers in 1776 would have been from what Jefferson refers to as a “census of tythes” dating from 1772, revealing a total of 153,000 taxable individuals — including free adult men and adult slaves of either sex. Jefferson’s comparison uses the number of militiamen in 1781 (totaling 49,000). The 1790 Census gives a total population of 821,287 for Virginia.
The slave population of Virginia was heavily concentrated in the east and the population was growing much faster in the west. Because of these two facts, the east would have had a much higher share of the 1772 taxable population relative to their share of 1781 fighting population, and an apportionment intended to be fair based on the 1772 tax rolls would appear dramatically unfair based on the 1781 militia rolls.
It is not likely this episode meets the intent standard to qualify it as an act of gerrymandering, though as a malapportionment it would not be protected by the Rucho decision.
Virginia, 1788: This is sometimes referred to as “the first gerrymander,” including in the title of a 2011 paper by Hunter cited in Rucho. It took place after the drafting and ratification of the Constitution. Patrick Henry was accused of drawing Virginia’s fifth district unfairly in order to try to prevent James Madison from being elected to the House of Representatives. James Madison nevertheless won this election, beating out James Monroe.
It is difficult to say that anything could be a partisan gerrymander before the development of organized political parties, which did not yet exist. When those parties emerged, both Madison and Monroe became members of the Democratic-Republican party. Furthermore, while the accusations of an individual gerrymander targeting Madison are well-documented, both of the cited experts discussing this episode (Hunter 2011, Griffith 1907) conclude that the accusations were unfair.
This episode happened after the drafting and ratification of the Constitution, and also was not a provable case of partisan gerrymandering.
Massachusetts, 1812: The Democratic-Republican legislature drew a map designed to favor their candidates in the state Senate over the Federalist candidates. Elbridge Gerry was the governor of Massachusetts, and the salamander-shaped district became known as the “Gerry-mander.”
Gerry lost his bid for re-election, but the Democratic-Republican party held on to the state’s Senate. This was a genuine example of partisan gerrymandering, but it took place too late for the Framers to have been aware of it while drafting the Constitution.
It is worth noting that the apportionment of the Massachusetts Senate was tied to taxation, rather than population. Griffith shows that the Democratic-Republican majority engaged in some creative tax valuations in order to further manipulate the political terrain to their advantage, qualifying it as a malapportionment. As a malapportionment, it represents a type of partisan gerrymander not protected by the Rucho decision.
In summary, these five episodes provide little reason to conclude the Framers anticipated the modern problem of partisan gerrymandering, or that they considered districting maladies more sophisticated than simple malapportionment. Further, all five episodes have important characteristics that materially distinguish them from the partisan gerrymanders protected by the Rucho decision.
The gerrymandering timeline
In Vieth, Scalia provides a key quote from Griffith:
By 1840 the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts.
The date of 1840 is an approximate one. In 1842, Congress passed an apportionment act that required the use of single-member districts for House elections, which was an attempt to limit gerrymandering. Elsewhere in his book, Griffith couples the rise in awareness of gerrymandering to the decline in the use of districts for choosing a state’s presidential electors, citing the prominent authority of President Benjamin Harrison. This decline happened between the 1824 and 1836 elections.
Griffith actively disagrees with the view that 1812 was the first partisan gerrymander, providing examples of alleged gerrymanders, actual gerrymanders, and attempts to prevent gerrymandering from 1788 to 1811. However, while Griffith felt that early gerrymandering from 1788 to 1811 had been overlooked by previous historians, Griffith did not think that gerrymandering was well understood until after the Revolutionary War. A line from the beginning of Chapter IV of his book makes this perfectly clear:
The possibilities of the gerrymander were little understood and consequently not feared at the time of the colonists’ war with England.
None of Griffith’s post-war examples take place prior to the drafting and ratifying of the Constitution; there is a 12 year gap between the Virginia Senate apportionment of 1776 and his next example.
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:
Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. And might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.
Madison correctly anticipated that state legislatures would try to control election results by switching between the use of single-member, multi-member, or at-large elections, and he is also correct that changing polling locations, use of voice votes, et cetera can be used to manipulate the results of elections.
He was also aware that malapportionment existed, even if he didn’t mention it explicitly in this speech. He was a close acquaintance of Jefferson, meaning that he had likely read Jefferson’s Notes on the State of Virginia. Not only that, but Madison appeared to have alluded to England’s malapportionment earlier (June 29th) and Nathaniel Gorham had touched on that exact issue on the previous day (August 8th, 1787):
The case in England was not accurately stated yesterday (by Mr.
Madison) The Cities & large towns are not the seat of Crown influence & corruption. These prevail in the Boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. The people have been long accustomed to this right in various parts of America, and will never allow it to be abridged.
Gorham appears to have thought that in America, the sort of egregious malapportionment that plagued England’s parliament would not be tolerated.
The fact that the Framers were aware of malapportionment is referenced in Wesberry v. Sanders. Justice Hugo Black, writing for the majority, offers this as evidence that malapportionment is in implicit violation of Article 1 §2.
Apart from the issue of malapportionment, some Framers did express other concerns about districting in general. Various Framers, particularly ones from Virginia, pointed out that when multiple counties or towns are put together in the same district, the community with the largest population tends to control how the district votes.
The ability of large states to simply outvote small states sharing a district with them was one of the reasons that Framers gave for voting against various proposals to have an executive council elected by multi-state districts or to have senators elected by multi-state districts. In a similar vein, Madison argued that towns outvoting the rural areas surrounding them was a reason to disqualify urban voters from voting for the House of Representatives. (Madison lost that argument.)
This type of concern, however, did not appear to come up in the debate over Article 1 §4. The records of the Constitutional Convention do not show the Framers considered any problems related to districting while debating Article 1 §4, and do not show any examples of the Framers discussing gerrymandering at the Constitutional Convention.
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.
Following the citation trail reveals a few examples from before the Constitutional Convention that involve malapportionment. As organized political parties in the United States date from after the Constitutional Convention, none of these examples involve organized political parties. There is clear and obvious evidence that the Framers were familiar with malapportionment.
However, malapportionment is distinct from gerrymandering. Malapportionment was ruled a violation of Article I §2 in Wesberry v. Sanders, and is not protected by the Rucho decision. There is little reason to believe that the Framers were particularly familiar with gerrymandering, or felt that they needed to protect against any form of gerrymandering other than those involving malapportionment.