When the Supreme Court decided earlier this summer that federal judges cannot interfere if states draw election district boundaries that favor the party in power, Chief Justice John Roberts invoked the Founding Fathers. Even James Madison had been the target of gerrymandering, Roberts wrote in the 5-4 Rucho v. Common Cause decision, using that as evidence to show the founders tolerated this practice and viewed it as an unavoidable part of our political system.
But before you conclude gerrymandering had the blessing of the founders and we are forever stuck with it, it helps to have the full story. What the Supreme Court did not mention was that if Madison’s political opponents had kept him out of the first Congress, the results would have been catastrophic: There likely would have been no Bill of Rights, then or perhaps ever, and Anti-Federalists might have succeeded in completely rewriting the Constitution. In other words, a gerrymander—before it was officially called by that name, of course—might have irreparably damaged the very document Chief Justice Roberts has spent his career defending.
The story begins in 1788, after Virginia ratified the U.S. Constitution in June. The state’s General Assembly had to create 10 congressional districts, deciding which counties to assign to each one. At the time, Patrick Henry, a member of the state House, was Virginia’s most powerful legislator and had almost complete control over the House and Senate. His influence over the Legislature was so obvious that George Washington wrote to Madison, “[Henry] has only to say let this be Law—and it is Law.”
Henry was also a leading Anti-Federalist who opposed the new plan and feared the Constitution would create a “consolidated” government that would be too powerful. Henry had tried to stop Virginia from approving the Constitution at the state’s ratifying convention. For three weeks in a sweltering converted theater in downtown Richmond, he had vigorously debated Madison, another delegate at the convention and the principal defender of the Constitution. Madison prevailed—the state voted to ratify the document.
One of the reasons Madison had been successful was he had promised to work to add a bill of rights if he were elected to the first Congress. The original Constitution mentioned a few rights, but it did not come close to containing the comprehensive protection for individual rights demanded by the people and supported by Thomas Jefferson and other prominent founders. Madison’s commitment to introducing such amendments had helped win ratification in Virginia and other states.
But Henry was determined to stop Madison from proposing a bill of rights in Congress. Henry and other Anti-Federalists did not oppose a bill of rights, but what Henry really wanted was a second constitutional convention. A new convention, he believed, was a chance to weaken the new government by rewriting the Constitution or proposing amendments that would return power to the states, similar to what they had under the Articles of Confederation. Henry also knew, however, that supporters of a convention were generally motivated by the lack of a bill of rights. New York and Virginia—at Henry’s urging—had already requested a second convention. Under Article 5 of the Constitution, if two-thirds of the states submit petitions for a convention, Congress must call one. Henry was convinced that if Madison steered a bill of rights through Congress, the drive for a new convention would dissipate.
Henry didn’t leave anything to chance. First, he denied Madison a seat in the U.S. Senate—for the term beginning in March 1789—by persuading the General Assembly to elect two Anti-Federalists instead. (State legislatures originally chose senators.) Henry then created an eight-county congressional district filled with Anti-Federalists in which he placed Madison’s home county. Henry also helped recruit a stellar candidate— war hero and future president James Monroe—to run against Madison. The contrast between the tall and affable Monroe—who voted against the Constitution at the ratifying convention—and the exceedingly shy, diminutive Madison, was striking.
How did Henry know which counties contained Anti-Federalists who would probably vote for Monroe? He had none of the detailed information available today to create a district hostile to a specific candidate or party. But Henry was able to look at how the two delegates from each county had voted at the Virginia ratifying convention. If the delegates had rejected ratification, the voters from that county would likely favor Monroe. Of the 16 delegates from the district Henry devised, 11 had said “no” to the Constitution.
Henry also included in the Virginia law creating congressional districts the requirement that a candidate for the U.S. House be a resident of the district, thus preventing Madison from running in another part of the state. This, by the way, violated the Constitution, which requires only state residency to run. But he did it anyway.
Finally, at Henry’s request, the Legislature in November 1788 reappointed Madison to the lame-duck Confederation Congress, which would cease to exist as soon as the first Congress met the following March. Henry knew Madison would be in New York representing Virginia, not home campaigning. Anti-Federalists then spread in the district the falsehood that Madison believed the Constitution needed no changes and therefore would not offer amendments.
The election took place on February 2, 1789, and Madison won by 336 votes—1,308 to 972. He introduced the Bill of Rights on June 8, 1789, about three months into the new Congress.
Getting the Bill of Rights approved in Congress was an immensely difficult task. When Madison introduced the amendments, he was appalled to find so many members of the House—including some of his own Federalist faction—were lukewarm or even hostile to a set of promises of personal freedom. They believed Congress should focus on more important tasks and that such changes could wait until the country had sufficient experience with the Constitution to know if they were necessary.
But Madison convinced his colleagues that the people were demanding a bill of rights and if Congress didn’t propose such amendments, a second constitutional convention was likely to be held. Such a convention would have been a nightmare. State legislatures would probably have reserved for themselves the privilege of selecting delegates and would have chosen those whom they could instruct to support only the measures that benefited their states. Both structural and personal amendments would likely be on the agenda, and that would lead to lengthy and heated debates over how much power the federal government should have relative to the states. In addition, Article 5 says nothing about how a convention should be conducted, and Madison did not expect the “same spirit of compromise will prevail.” It would take months for the delegates at a second convention to rewrite the Constitution—if it was even possible for them to agree on a new draft—or approve radical amendments. The new constitution or amendments would then have to be debated by the states and ratified or rejected, and that could take many additional months or a few years. In the meantime, the nation would not know how all of this would end, and foreign governments would hesitate to develop close relations with the United States and lend the country more money, which it desperately needed.
Madison had great fear of a second convention—knowing how difficult it had been to produce a Constitution at the first one. If, on the other hand, Congress proposed amendments, Madison wrote, that body “will probably be careful not to destroy or endanger” the new government. And so he made his case to Congress. It was hard enough for him to get two-thirds approval for the Bill of Rights in the House in which Madison was a member; he then had to help persuade the Senate to agree with the House, also by a two-thirds vote. Madison was not only the Bill of Rights’ most eloquent defender, he also had extraordinary legislative skills. It is unlikely anyone else could have done it.
That makes the congressional election of 1789 one of the most important elections in the nation’s history—one that resulted in the precious amendments that are the foundation of our freedom today.
Imagine, then, if Henry were creating the congressional district now. Today, mapmakers can use sophisticated computer programs to combine data from the census with geographic information systems and personal information gathered by commercial firms. Henry would know—down to the block or precinct or even individuals—the party affiliation, racial and ethnic background, age and gender characteristics, and household income of prospective voters. He would also know how often someone votes, whether the precinct has elected Republicans or Democrats, what kind of car people drive, where they shop, what organizations they belong to and many other pieces of information.
With today’s data and computers that can configure hundreds of potential maps with different boundaries in seconds, there is little doubt Henry would have been able to defeat Madison. To give one example, Henry included Culpeper County in the district because both of its delegates to the Virginia ratifying convention voted against the Constitution. Yet Madison ended up with more than twice as many votes there as Monroe. With modern computer programs, Henry would have excluded Culpeper and probably added Hanover County, which was contiguous to the district and whose delegates rejected the Constitution. It was also Henry’s birthplace.
As Justice Elena Kagan put it in her Rucho dissent, with all the data available today, “Gerrymanders [are] far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grandfather’s—let alone the Framers’—gerrymanders.”
Before the Supreme Court decided the case this summer—which involved appeals from North Carolina and Maryland—several lower courts had concluded that North Carolina deprived Democrats of their First and Fourteenth Amendment rights by packing them into a few districts and scattering the rest so Democrats would never win enough seats to reflect their statewide support. It was the first time any federal court had held that gerrymandering violated the Constitution by disenfranchising voters.
In 2016, Democratic candidates for the U.S. House in North Carolina got 47 percent of the statewide vote, but won only three of 13 seats. When a federal court criticized Republican legislators, Rep. David Lewis, the chairman of the state House redistricting committee, was unapologetic: “I acknowledge freely that this would be a political gerrymander. … I think electing Republicans is better [for the country] than electing Democrats.” In 2018, Republicans again won 10 of 13 U.S. House seats even though Democrats received almost 50 percent of the vote statewide. A lawsuit challenging North Carolina’s House and Senate districts based on the state constitution is ongoing.
Democrats do it as well. In the Maryland case decided by the Supreme Court with Rucho, Democrats changed a Republican district so a Democrat could be elected.
In his majority opinion, Roberts wrote: “Partisan gerrymandering is nothing new. Nor is frustration with it…The Framers were aware of electoral districting problems [and assigned] the issue to the state legislatures.” He added, “The fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary.” The chief justice also held that federal judges cannot consider gerrymandering cases because there are no “discernible and manageable” standards to guide their decisions. Lower court judges have been able to identify standards.
Kagan was passionate in her dissent: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process.”
Today, we can see gerrymandering as a root of many political ills—one being ultrapartisanship. Legislators in gerrymandered districts who cannot lose in a general election worry only about the primary, whose voters are frequently unrepresentative of the district as a whole. To satisfy primary voters, incumbents often move to the extremes and they are careful not to be perceived as cooperating with the other party.
Gerrymandering very nearly cost us the Bill of Rights and could have plunged the country into chaos from which it would not have recovered. It is difficult to exaggerate the harm that would have caused the nation.