Partisan Redistricting Before Elbridge Gerry: Why the History of Gerrymandering Matters Today

As America approaches another historic election and another round of redistricting following the 2020 census, public discourse has recognized the outsized influence of partisan gerrymandering on national politics. The question of its legality has repeatedly risen to the nation’s highest court in recent years, and next week, the Supreme Court will hear oral argument in Rucho v. Common Cause (2019), a case that challenges the constitutionality of the partisan gerrymandering of North Carolina’s congressional districts. Among the many amicus briefs filed in support of Common Cause, those written by the Constitutional Accountability Center (CAC) and a collection of historical scholars explore the context in which the Framers drafted the Constitution. Their arguments elaborate on the role that unequal representation played in the very creation of our Republic and how the founding fathers sought to avoid the entrenchment of partisan power which has since become commonplace.

Before addressing these briefs, it is worth revisiting the widely-told origin story of partisan gerrymandering in America, the tale of Massachusetts Governor Elbridge Gerry. While apportioning representation for the state senate in 1812, members of the Democratic-Republican Party (not to be confused with the modern Democratic and Republican parties) concocted district maps that overwhelmingly favored their own candidates over those of the Federalist Party. Governor Gerry found the maps “disagreeable,” but approved them regardless, leading to a wave election for his party that year and the infamous cartoon in the Boston Gazette which mocked the shape of Gerry’s own home district as “a new species of Mander.”

While this story is true, its narrative distracts from a longer history of partisan politics that played an important role in shaping the Constitution. Though King George III headed British government at the time of the Revolutionary War, a nominally representative assembly had existed in some form in England for centuries prior. The amicus brief filed by the collected historians explains that in contrast to inhabitants of Great Britain, the American colonies were only theoretically covered by “virtual representation.” This idea supposes that magnanimous statesmen would tend to the colonists’ interests despite having no electoral accountability to them. The historians depict this concept as laughable to the founding fathers, stating that, “Americans, whose colonial assemblies generally extended representation to new communities as they were organized, believed instead in a system of actual representation.”

As these briefs explain, the Framers denounced the weakness of popular representation even within Great Britain, and their critiques guided the creation of a new government. The historians refer to John Adams’ 1776 pamphlet, Thoughts on Government, where Adams denounces England’s “unfair, partial, and corrupt elections” and asserts “equal interests among the people should have equal interests among the legislature.” CAC’s brief recalls the 1787 Constitutional Convention. Here, James Madison explicitly castigates a system of “vicious representation” in England, where sparsely-populated “rotten boroughs” would have disproportionately more members of parliament than densely-packed urban districts.

Even disregarding later legal protections for fair representation, the collected historians and CAC argue that the Framers drafted the original text of the Constitution with defense of proportionality in mind. Article I Section 2 reads that the “House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” implying that the popular will be manifest in the House and that the representatives be accountable to it. The Historians refer to Madison’s comment at the Constitutional Convention that, “If the power is not immediately derived from the people, in proportion to their numbers, we may make a paper confederacy, but that will be all.” Should the states try to undermine the popular will by manipulating the electoral process, CAC argues that Article I Section 4 grants the national government the authority to supersede state regulation of federal elections as part of the Article IV “guarantee to every State in this Union a Republican form of Government.”

Long before Governor Gerry’s 1812 decision, Americans knew the power of incumbent officials to entrench their power and the devastating consequences of a lack of popular accountability. Subsequent constitutional amendments and Supreme Court jurisprudence have further enshrined the principle of proportional representation, but the collected historians and CAC demonstrate that partisan gerrymandering has always contradicted the Framers’ vision of responsive government and any defense of it rewrites American history.