Sixty years ago, the U. S. Supreme Court decided Baker v. Carr,¹ in which residents of the five most populous Tennessee counties were allowed to challenge the apportionment of the legislature on the ground that it violated their right to equal protection under the Fourteenth Amendment to the U. S. Constitution.² Two years later, in Reynolds v. Sims,³ the Supreme Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

As a direct result of those two decisions, the Tennessee General Assembly (and all other state legislatures) engage in the process known as redistricting once every 10 years.⁴

The drawing of legislative district boundaries is an inherently political process and is often intensely partisan. The political party that holds the most seats in the legislature naturally tries to draw the boundaries in a way that will aid that party in its quest to retain control of the legislature.

Legislative district boundaries are often drawn in a manner or shape that appears odd or illogical to a disinterested observer. An unusual term is used to describe the drawing of these oddly shaped districts — gerrymandering.⁵

This term has been a part of the American political lexicon for more than two centuries. The origin of the term provides a fascinating glimpse into American history.

Elbridge Gerry was one of our Founding Fathers.⁶ Born in 1744 in Marblehead, Massachusetts,⁷ he graduated from Harvard College at the age of 18 and joined his father’s merchant business. Like other Massachusetts business and political leaders of that time, he opposed the laws and policies imposed by the British Parliament on the colonies, joining forces with such well-known Massachusetts patriots as Samuel Adams, John Adams and Mercy Otis Warren.

Gerry’s career in elective office began in 1772 when he was elected to the General Court of the Province of Massachusetts Bay (its legislative body). This body was dissolved by the British governor in 1774, but the legislators convened in defiance of the British governor, forming an extralegal body known as the Provincial Congress.

After the colonies banded together and formed the Continental Congress, Gerry was elected to the Second Continental Congress,⁸ in which he served from 1776 to 1780. During that period, he was one of the signers of the Declaration of Independence and the Articles of Confederation.

Following the end of the Revolutionary War, Gerry returned to the Congress established under the Articles of Confederation, serving from 1783 to 1785. He became convinced that the Articles needed to be revised and was elected as a Delegate to the Constitutional Convention, which met in Philadelphia in 1787.

He was one of the most active and outspoken delegates to the Convention, although some of his proposals were not included in the final version of the Constitution. He refused to sign the final version of the Constitution because it did not include a Bill of Rights.

Following ratification of the Constitution by the states, Gerry was elected to represent a district in Massachusetts in the House of Representatives, where he served two terms (1789-1793). He joined James Madison and other members of the First Congress in drafting the Ten Amendments, which became the Bill of Rights.

In 1796 he served as a presidential elector for John Adams, who became the second president of the United States. In 1797 President Adams appointed him to serve as one of three members of a special diplomatic team⁹ sent to Paris to negotiate with the French government to end the seizure of American ships by the French. During these negotiations, the diplomats were approached by three French agents (dubbed X, Y and Z) who demanded bribes from the Americans before negotiations could continue. The diplomats refused to pay and the negotiations ended, resulting in the so-called Quasi-War with France from 1798 to 1800.

The failure of this diplomatic mission led to attacks on Gerry by leaders of the Federalist Party headed by Adams, although Adams himself continued to support Gerry. Exhausted by attacks from other Federalists, though, Gerry decided to leave the Federalist Party and join the Democratic-Republican Party headed by Thomas Jefferson.

During the first decade of the 19th century, Gerry ran as the Democratic-Republican candidate for governor of Massachusetts several times, but he lost these elections because Massachusetts was still a solidly Federalist state. Finally, in 1810 he was elected governor of Massachusetts and in 1811 was reelected.¹⁰

During Gerry’s second term as governor, the by-then Republican legislature adopted new legislative district boundaries, many of which were oddly shaped by a legislature seeking to retain control in Republican hands. One Senate district was shaped like the mythological salamander and was said by a Boston news-paper to be a Gerry-mander.¹¹ The term stuck and has since been shortened to gerrymander.

Gerry lost his re-election bid for governor in 1812. His financial problems prompted him to ask President James Madison for a federal position. Since the vice president during Madison’s first term¹² had died in office, Madison decided to add Gerry to the presidential ticket. Madison was elected to a second term as president, and Elbridge Gerry became vice president of the United States in 1813.

He served as vice president for less than two years, dying in office in 1814 at the age of 70. He was survived by nine children and is the only signer of the Declaration of Independence buried in the Congressional Cemetery in Washington, D.C.

Gerry is still revered in his hometown of Marblehead. In 2018 the Marblehead Board of Selectmen wrote a letter to Chief Justice John Roberts, taking the Supreme Court to task for mispronouncing the term “gerrymander.” Gerry pronounced his name with a hard “g” (as in Gary). According to the Selectmen, lawyers and court members pronounce the word using a soft “g” (as in Jerry) and that is simply wrong.

A counselor to the chief justice replied to the Selectmen’s letter, noting with pleasure that Gerry’s grandson had donated 30,000 books that became the foundation of the Supreme Court’s library. The chief justice made no commitment to change the pronunciation of the word “gerrymander,” however.¹³ |||

JOHN P. WILLIAMS is of counsel with the Nashville law firm Tune, Entrekin & White. He received the Justice Joseph W. Henry award for outstanding legal writing for articles published in the Tennessee Bar Journal in 2003 and 2014.

NOTES

1. 369 U. S. 186 (1962).
2. At the time the Baker suit was filed, the legislative districts were based on an Act of the Tennessee legislature passed in 1901 (369 U. S. at 191). Between 1901 and 1961, the population of Tennessee had grown substantially, and many rural residents had moved into the large urban counties (369 U. S. at 192). The plaintiffs in Baker, all residents of large urban counties, alleged that the legislative district boundaries determined by the legislature in 1901 resulted in a “debasement of their votes” because of the population shift that had occurred from 1901 to 1961.
3. 377 U. S. 533, 568 (1964).
4. Redistricting usually takes place in the first two years of each decade, following the release of new census data by the U. S. Commerce Department.
5. The Supreme Court explained in Gill v. Whitford, 138 S. Ct. 1916 (2018), that partisan gerrymandering takes two forms: “cracking” and “packing.” As the court said: “Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins” (138 S. Ct. at 1924).
6. The biographical information in this article is taken from the Wikipedia entry on Elbridge Gerry and from the only modern biography of Gerry, Elbridge Gerry: Founding Father and Republican Statesman, written by Dr. George A. Billias, a distinguished scholar of the Revolutionary era, and published by McGraw-Hill in 1976.
7. Marblehead, Massachusetts, is a seaside town 17 miles northeast of Boston, with a current population of about 20,000. Its roots lie in commercial fishing and shipping, and it is sometimes known as the birthplace of the American Navy (Wikipedia entry on Marblehead).
8. Gerry had been elected to serve in the First Continental Congress, but he declined to do so because of the recent death of his father and his obligations to his family and his father’s business.
9. The other two members of the diplomatic team were John Marshall and Charles Cotesworth Pinckney.
10. At that time, the term of the governor of Massachusetts was one year.
11. The term “Gerry-mander” was first used in the Boston Gazette on March 26, 1812, along with a political cartoon drawn by Elkanah Tisdale that depicted a state senate district in Essex County (Gerry’s home county) as a strange animal with claws, wings and a dragon-like head (Wikipedia entries on Elbridge Gerry and Gerrymandering).
12. The vice president during Madison’s first term as president was George Clinton, who died in office in 1812.
13. Debra Cassens Weiss, “Have we been pronouncing ‘gerrymandering’ wrong? This man’s descendants think so,” ABA Journal, www.abajournal.com (Mar. 28, 2019).