We don’t bump into Elbridge Gerry’s name every day, but we do bump into his legacy and his legacy is all tangled up in much of the designs of our Federal Government.
Elbridge Thomas Gerry was born in Marblehead, Province of Massachusetts Bay, British America on July 17, 1744. Both of his parents were descendants from successful merchant families in the Boston area and Mr. Gerry’s father operated a successful merchant company. Indeed, Elbridge would later join his father in the operation of the family merchant business. It is during these years that the British Parliament was imposing a variety of taxes on the colonies. Many of these taxes are the same ones that became the motivation for colonialist’s rebellion against the British Crown.
Elbridge Gerry became involved in the rebellion sometime in late 1774 or early 1775. We know this because his name does not show up in the list of activists participating in the preparation of the Articles of Continental Association that came out of the First Continental Congress, but he was a signatory to both the Declaration of Independence and the Articles of Confederation which are products of the Second Continental Congress. During these months he was also grieving the death of his father and that would certainly explain his inability to focus on political activities.
Between 1810 and 1812 Elbridge Gerry was serving as the Governor of Massachusetts. It was during this time that many of the states were working on redistricting based on the 1810 enumeration. The Massachusetts Legislature was controlled by Democratic-Republicans and they put together a redistricting map that was designed to favor their Democratic-Republican candidates to the detriment of the opposing Federalists. It is said that Governor Gerry did not favor the legislation, but he did sign it into law.
One of the Congressional Districts was a particularly odd shape resembling a mythical salamander. Federalists made note of the shape and gave the whole process the Gerrymandering name. The name stuck and became the most notable part of Elbridge Gerry’s legacy.
I’ll quote from the Wikipedia webpage regarding Mr. Gerry’s politics as follows: “Gerry’s political philosophy was one of limited central government, and he regularly advocated for the maintenance of civilian control of the military. He held these positions fairly consistently throughout his political career (wavering principally on the need for stronger central government in the wake of the 1786–87 Shays’ Rebellion) and was well known for his personal integrity. In later years he opposed the idea of political parties, remaining somewhat distant from both the developing Federalist and Democratic-Republican parties until later in his career. It was not until 1800 that he formally associated with the Democratic-Republicans in opposition to what he saw as attempts by the Federalists to centralize too much power in the national government.”
Our Constitution requires that our population be enumerated within three years of the first Constitutional Congress and every ten years thereafter. The first census following the ratification of our Constitution was done in 1790 and it specified that there be one Representative for each thirty thousand persons with each state having at least one Representative. We don’t find a lot of gerrymandering in the early days, but we have in the Apportionment Act following the 1840 census the following language:
“Sec. 2. And be it further enacted, That in every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory equal in number to the number of Representatives to which said State may be entitled, no one district electing more than one Representative.”
It isn’t a lot of evidence, but it is enough to let us know that there were some concerns about the potential for abuse from the apportionment process. That said, the legislation associated with the 1850 and 1860 censuses was essentially silent on this point. In the 1870 census the language of Section 2 returned with new emphasis:
“Sec. 2. That in each State entitled under this law to more than one Representative, the number to which said States may be entitled in the forty-third, and each subsequent Congress, shall be elected by districts composed of contiguous territory, and containing as nearly as practicable an equal number of inhabitants, and equal in number to the number of Representatives to which said States may be entitled in Congress, no one district electing more than one Representative: Provided, That in the election of Representatives to the forty-third Congress in any State which by this law is given an increased number of Representatives, the additional Representative or Representatives allowed to such State may be elected by the State at large, and the other Representatives to which the State is entitled by the districts as now prescribed by law in said State, unless the legislature of said State shall otherwise provide before the time fixed by law for the election of Representatives therein.” But there were other influences at work and we should spend a moment or two with them.
During the 1872 gubernatorial election in Louisiana, an event known as the Colfax Massacre took place. It is said that somewhere between sixty two and one hundred and fifty six black militia and three white men were killed in the process which stemmed from voting activity. The men doing the killing were ex Confederate soldiers and KKK members who were then prosecuted under the relatively new federal enforcement acts.
The matter (United States v. Cruikshank) found its way to the Supreme Court on appeal where portions of the enforcement Acts were found to be unconstitutional because they dealt with state officials and/or private persons.
A second case from Kentucky (United States v. Reese) 1876, involved a Kentucky electoral official who refused to register a Black man’s vote in a municipal election. The electoral official was indicted under the Fifteenth Amendment and the Enforcement Act of 1870.
Once again the matter was appealed to the Supreme Court where the Court’s opinion found that the Fifteenth Amendment did not confer the right of suffrage, but rather did prohibit exclusion from voting on racial grounds. The Court also invalidated the operative language in section three saying that it exceeded the scope of the Fifteenth Amendment.
We can easily see that the result of these two cases taken together leaves plenty of room for ambiguity with respect to the three reconstruction amendments.
Once again the language remained as was until the 1900 census when it was again changed as follows:
“SEC. 3. That in each State entitled under this apportionment, the number to which such State may be entitled in the Fifty-eighth and each subsequent Congress shall be elected by districts composed of contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of the Representatives to which such State may be entitled in Congress, no one district electing more than one Representative.”
Now it is “contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants.”
The language held up in 1910, but the 1920 census was a new level of dysfunction. The 1910 enumeration specified four hundred and thirty three Representatives with one additional member each for Arizona and New Mexico if they should become states before the next subsequent census.
In 1920 the census indicated a great deal of movement among the population and the congress was unable to agree on a new apportionment so they continued with the same formulation as had been used following the 1910 census. The dysfunction was, at least in part, the result of overcrowding in the House of Representatives expected if the total number of Representatives was increased beyond four hundred and thirty five.
The 1930 and 1940 censuses were again silent on the point. There was an effort to streamline and automate the process going forward so as to eliminate the need for so much legislation time. In the process, the redistricting requirements of districts that are “contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants” were lost. The Federal Government was out of the business dictating requirements for redistricting and the various states were unleashed to implement their own devices. And, they did.
The Federal Government passed the Voting Rights Act of 1965 in an effort to standardize the voting rights guaranteed under the fourteenth and fifteenth amendments to our Constitution. There are two terms that came into being that bear on the redistricting of Congressional Districts of our various states. The first term is “preclearance” which is found in Section 5 and prohibits certain jurisdictions from implementing any change affecting voting without receiving preapproval from the U.S. attorney general or the U.S. District Court for D.C. that the change does not discriminate against protected minorities. The second term is “Coverage Formula.” Also found in Section 5 the coverage formula was originally designed to include jurisdictions that engaged in egregious voting discrimination in 1965, and Congress updated the formula in 1970 and 1975. We should note that those jurisdictions came in both red and blue persuasions.
Redistricting took place following each enumeration seemingly without a great deal of controversy, but the folks in Shelby County, Alabama were not happy with the status quo and decided to file suit. In Shelby County v. Holder (2013), the U.S. Supreme Court struck down the coverage formula as unconstitutional, reasoning that it was no longer responsive to current conditions. Indeed, Congress had allowed the jurisdictions contained in the “Coverage Formula” to remain part of the list without revisiting the appropriateness of their continued inclusion. With the “Coverage Formula” gone the preclearance could not be enforced and the states were once again free to gerrymander. And their thirst for political power has caused their antics to become more and more egregious ever since.
We the people see what is happening. We the people understand that gerrymandering is cheating and un-American. And, we the people recognize that while both political parties are participating the Republican Party has taken the practice to unprecedented levels of dishonesty.
During his lifetime, Elbridge Gerry came to embrace the Democratic-Republican Party policies and, more generally, conservatism as his preferred philosophies. He would probably recognize the redistricting practices today as extensions of his own ideas, but he might not support the extremes to which they have been taken. Gerrymandering is carried out by state legislatures and the best way to bring state redistricting back to a more equal and power sharing balance is for the voters to un-elect appropriate members of their state legislature.
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