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In this time of pandemic and revolution, do you find yourself frustrated at high levels of corruption and inequality, at our inability to get basic things done at the persistence of systemic racism? You're not alone.

[00:00:13]

I'm Baratunde Thurston, author, activist and comedian. Our democratic experiment is at a tipping point, but which way we tip is up to us.

[00:00:23]

Listen to how cities in the Baratunde on the I Heart radio app, Apple podcast or wherever you listen to a podcast with a pandemic and a revolution happening at the same time, we get to choose what kind of society we want to rebuild and who we want to be together. I'm Baratunde Thurston, author, activist and comedian, and I've got a new podcast, How to Citizen with Baratunde.

[00:00:46]

Our democratic experiment is at a tipping point, but which way we tip is up to us. I Heart Radio is number one for podcast, but don't take our word for it. Find out a citizen with Baratunde Dave on the radio app or wherever you get your podcast.

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Happy Saturday, everyone. I Hurt Radio has a new podcast out called Why I'm Voting. Holly is the host and she talks to actors and musicians and comedians and other podcasters about their experiences with voting and why it's so important. Yeah, I have been so lucky. I've gotten to talk to you. A lot of amazing people. I would not otherwise have spoken with our first episode already out. We have six out as when we're recording this like I got to talk to Will Ferrell about voting and discovered that he really, really loves his why I voted sticker.

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But he also talked a lot just about really very sincerely about why it's so important. A lot of people are talking about the importance of voting in local elections and not ever thinking that an election outcome is a lock and just really making sure that anybody who is maybe not feeling enthusiastic or inspired about voting in this election just made it clear like this is the place where your voice could be heard, where you actually have a way to tell your government from the very local level all the way up what you want.

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And it's it's a cool thing. And it's been really, really fun to have some of these conversations. So to go along with that, today's classic is one that we chose on the topic of elections. If their episode on gerrymandering, which originally came out on April 11th of 2018. And in this episode we talk about cases that were before the Supreme Court at the time, which related to the issue of partisan gerrymandering that was decided on June 20th, 2019 in a five four decision.

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Partisan gerrymandering claims present political questions beyond the reach of the federal courts. Writing for the majority, Chief Justice John Roberts wrote that, quote, Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary.

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So enjoy the episode and check out why I'm voting wherever you get podcasts. Welcome to stuff you missed in History Class, A production of I Heart Radio. Hello and welcome to the podcast. I'm Tracy Wilson. And I'm Holly, right.

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So Elbridge Gerry not really a household name unless you start talking about gerrymandering, which at this point is a household word and is named after him. So just in case you're not familiar, gerrymandering is the drawing of political districts to give particular advantage or disadvantage to a party or a group. And back when we talked about the Wilmington coup earlier this year, we had a number of angry letters about how we should have specifically said that both major parties in the United States gerrymander, even though we talked about both major parties doing that in the episode, a lot of those letters also suggested that we should do a podcast on the history of gerrymandering to remedy our obvious ignorance on that subject.

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But the funny thing was at that point, it had been lingering on my short list for a really long time based on having already educated myself. So it's now April of twenty eighteen. Just last month, the U.S. Supreme Court heard oral arguments in a gerrymandering case and they had heard arguments in a previous case the previous October. And then the North Carolina case that we mentioned and that Wilmington Q episode was put on hold, pending decisions and all that.

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So it seemed like a good time to actually move this thing that's been on my short list for more than a year up to the top. We are not going to get into the details of the cases that the Supreme Court is examining right now. There is a ton of very good, reliable, non-partisan coverage that is very easy to find. If you Google something like gerrymandering, SCOTUS or gerrymandering, Supreme Court Today Show is more about the history of congressional districts and who this Elbridge Gary person was and how he became associated with a district that was so convoluted that the whole practice of drawing skewed political districts is now named after him.

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So in the U.S., the word gerrymandering can apply to any political district, but it's most often used to describe state and federal legislative districts. The various states have their own particulars, but for the most part, state legislative districts follow the same basic principles that the congressional districts do, but with different numbers.

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The United States has 435 congressional districts which are distributed among the states based on their population. And that population count comes from the census, which has been conducted every 10 years since 1790. The census is something that Congress is empowered to conduct in Article one, Section two of the Constitution. So it's right there in the nation's founding document. The census is used for a lot of other things as well, but its primary purpose is connected to creating congressional districts.

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And the idea that the districts will be allocated to the states based on their population is also in the Constitution. Also in Article one, Section two, which is amended in Section two of the 14th Amendment, quote, Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed, the Indians not taxed part is connected to the idea of tribal sovereignty. And at the time, tribal persons who were not paying any taxes were not being counted.

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We'll get to that a little bit more later. All the congressional districts across all the states are supposed to have roughly the same number of people. And although that basic idea has been part of the process from the very beginning, it wasn't until the Apportionment Act of 1842 that the law really spelled out that every state should be divided into congressional districts with a single representative elected from each one.

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The congressional districts themselves are divided and distributed through a process called apportionment, which is governed by federal law. The exact method of apportionment has changed several times over the centuries, and all those methods are actually pretty tricky to explain in the course of an audio podcast. So we will put it this way. It is a math exercise intended to ensure equal representation nationwide. The current system of apportionment goes back to 1940, at which point it was also decided that there were no longer any Indians not taxed to be factored into the equation.

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The number of congressional districts corresponds to the number of seats in the House of Representatives, so the nation started out with 65 seats in 1787, which increased to 105 after the first census was conducted. Apart from a temporary increase between when Alaska and Hawaii became states and they each got one representative and then when the next census was held, which point it drop back down. The number has been fixed at 435 since Arizona and New Mexico became states in 1912.

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The District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands and the U.S. Virgin Islands are each represented by a non-voting member of the House, which is separate from the 435 voting members.

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That limit of 435 congressional districts means that apportionment is a zero sum game. There are 435 districts to go around. Among 50 states in each district nationwide is supposed to have about the same number of people. So at the census reveals that a state's population has increased enough that it requires another district to keep things balanced out.

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Another state whose population has decreased has to lose a district to make up for it, since each district is supposed to have about the same number of people. It's not really possible to just add or subtract one in a state without redrawing the entire map. And the states have their own laws about exactly how such redistricting should happen. In some states, an independent voting commission draws the lines or the legislature draws the lines, but is forbidden by law from doing so in a way that favors their own party.

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But in a lot of states, redistricting is handled just like any other piece of legislation, with a vote in the legislature and an approval or a veto by the governor. That means whichever party has the majority in the state government has the potential to put more influence on the way that the map is drawn.

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Throughout all these decades of adjustments to how many districts there are and how they're apportioned, legislators have tried a number of other tactics to influence the outcome as well. One notorious example is the three fifths compromise, which is in Article one, Section two of the Constitution, along with the census and the idea of apportionment. This was an appeasement to the slave states who wanted their enslaved population to be counted in the census so they could get more representation in Congress, but not to be counted in a way that would affect taxation.

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So the compromise was to count three fifths of the enslaved people in each state, which gave the Southern states more seats in the House during the apportionment process. That is why the 14th Amendment specifies the whole number of persons in each state.

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The idea of the three fifths compromise actually goes back to before the drafting of the Constitution and the practice of gerrymandering goes back almost as far to before the word was even coined. The first recognized example comes from 1788, which was the year after the Constitution was ratified. Patrick Henry was governor of the Commonwealth of Virginia that year, and when Virginia was drawing its congressional map, he convinced the state legislature to draw one of its districts in such a way that would force James Madison to run against James Monroe.

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His hope was that Monroe, who was his political ally, would defeat Madison in the congressional race. But that didn't work out Madison was the winner. There's a 2011 paper in the journal Early American Studies that argues that these districts were fairly drawn. But people at the time and in the decades since then have been positive that Patrick Henry was doing this on purpose. James Madison, the winner of that election, would later become the fourth president of the United States and during his second term in office to bring this back around to the subject of the show, his vice president was Elbridge Gary.

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And we're going to talk more about Elbridge Gary, who is, of course, the first statesman we all think of after we first pause for a little sponsor break.

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Over the years, host Erin Manque and the team behind law, unobscured and cabinet of curiosities have scoured the globe to bring you tales from the past with a hint of darkness, from superstitions and folklore to the curious and the bizarre. But now it's time to bring that journey home, because while America's history books are filled with people, places and events that sit on lofty pedestals, there's a whole other world of American history that waits for us in the shadows tales of unlikely heroes, world changing tragedies and legends that are unique to the American spirit stories that we call American shadows.

[00:12:37]

Each episode is handcrafted by the Greyman mild team and narrated by me, Lauren Vogel bomb, and while we might be traveling some dark and lonely roads, you're also bound to learn a thing or two along the way. Get ready for a tour of American history unlike any other. Get ready for American Shadows. Catch new episodes of American Shadows every other Thursday. Listen on Apple podcasts, diet radio app or wherever you get your podcasts. What if we reimagine the word citizen not as a weapon to divide us, but as a verb, inviting us all to wield our collective power pretty dull Ponte in this time of pandemic and revolution, you may find yourself frustrated at high levels of corruption and inequality, at our inability to get basic things done at the persistence of systemic racism.

[00:13:28]

You are not alone. I'm Baratunde Thurston. I've produced for The Daily Show, advised the Obama White House and screamed way too much at my screen.

[00:13:38]

Now I've made a show for us. In it we highlight people mobilizing their communities, having an impact on some of the biggest challenges we face. We offer you ways to get involved and we remind you that we, the people, have the collective power to change how our society works and for whom. Listen to how a citizen with Baratunde on the I Heart radio app, Apple podcast or wherever you listen to podcast.

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Elbridge Gary was born in Marblehead, Massachusetts, on July 17th, 1744.

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His father, Thomas, had emigrated to the colony from England in 1730 and he'd become a prominent figure in the Marblehead community. The family was also well-off, but as devout members of 1st Congressional Church, they weren't particularly showy about their wealth. Elbridge was one of 11 siblings, although six of them died while still in childhood.

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Gary went to Harvard College, where he earned a master's degree, and in his master's thesis, he argued that the colonies should resist the British government after the implementation of the Stamp Act. He returned to Marblehead after he graduated in 1765, where he joined his father's merchant business and became active in the growing movement for independence from Britain. This included serving on a committee to enforce a ban on the sale and consumption of tea.

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In 1772, Gary was elected to the colony's legislature, the General Court of Massachusetts. In May of 1774, after the Boston Tea Party, the British Parliament passed the intolerable acts, which were a collection of laws meant to both punish Massachusetts and to try to bring the colony back in line. One of these was the Massachusetts Government Act, which abolished the Colonies Charter and replaced most of its elected members of the government with people appointed by the Crown. When this happened, the general court reorganizes itself as a provisional government called the Provisional Congress, and Elbridge Gary was part of it.

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In 1776, Gary signed the Declaration of Independence and then he was elected to the Second Continental Congress, where he served until 1779. I did find one report that his term really lasted until 1780. But after a dispute about how much to pay suppliers, of which Gary was one, he walked out of Congress in disgust and didn't come back. That seems a little incongruous with the reputation that he developed for himself of being very dedicated afterward. There was this one source that I found that made that claim and then all the other sources were echoing back to that one.

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And I didn't find a mention of it in a biography that was written during his lifetime. So maybe that would have happened.

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A guarantee if anybody ever makes a movie of his life that will be included. Yeah. In his work in the government, Elbridge Gary developed a reputation as being highly dedicated and efficient. He was also obstinate and cantankerous and not afraid to stand by an unpopular opinion. He wasn't nearly as eloquent a speaker as a lot of the more famous founders, but he spoke tirelessly on subjects that he thought were important. One of the things that was really important to Gary was independence from Britain.

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He was relentless in his efforts to convince colonies that were on the fence about it that independence really was in their best interests. John Adams described it this way, quote, If every man here was a Gary, the liberties of America would be safe against the gates of Earth and hell.

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In 1783, after the end of the Revolutionary War, Gary was elected once again to the nation's governing body, which was now the Congress of the Confederation. He served until 1785. In 1787, he was elected as a delegate to the Constitutional Convention. This was the convention that was established to craft a replacement for the Articles of Confederation, which had formed the basis for the United States government after the Revolutionary War. Elbridge Gary was also one of the signers of the Articles of Confederation.

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Elbridge Gary had a lot of extremely strong opinions about how the government that the Constitutional Convention was creating should work. He wasn't so much behind the all men are created equal language from the Declaration of Independence. He thought that humanity had a natural elite and that those elite persons should lead the nation. He also thought that the new government should take the best elements of monarchy, aristocracy and democracy and create a strong central government that also delegated significant power to the states.

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But he wanted limits on the central government that would prevent it from descending into tyranny. And he wasn't in favor of having a standing army because of its potential tyrannical uses.

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He also became one of the most vocal supporters of the great compromise. The Constitutional Convention was considering two plans for the federal legislature. One was called the Virginia or Large State Plan, which involved a bicameral legislature with the state's representatives to both houses being determined by their population. The other was the New Jersey or small state plan in which the government would have only one house and each state would have the same number of representatives. Neither side was willing to budge, and the constitutional convention came to a complete deadlock.

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The Connecticut Compromise or great? Compromise was a combination of the two proposed plans, a bicameral legislature in which one House had the same number of representatives for each state and the other House had a number of representatives based on the state's population. This is what we have today. So this plan is most often associated with Oliver Ellsworth and Roger Sherman, who largely proposed it. But Elbridge Gary was the chair of the committee that was responsible for coming up with a compromise, and he was one of its most strident and vocal advocates.

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He called for compromise again and again during this process. And he pointed out that if the constitutional convention did not reach a successful end quote, we shall not only disappoint America, but the rest of the world. Gary's work with the constitutional convention went way beyond the great compromise. He also advocated for checks and balances, including Congress being able to overrule a presidential veto. He called for provisions for impeaching the president, saying, quote, A good magistrate will not fear them and a bad one ought to be kept in fear of them.

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He opposed direct elections because he thought it too easy for the voting population to be misled. But when proposals were raised to have Congress elected president, he argued that would make the president too dependent upon the will of Congress. He suggested having state governors elect the president instead. But in the end, Elbridge Gary wasn't happy with the Constitution that the that the convention created and he refused to sign it. He thought there weren't enough protections of individual liberties and he proposed the addition of a Bill of Rights.

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And the Constitution today does have a bill of Rights, but that didn't come along until after it was ratified, even though Gary was highly critical of the Constitution as it was drafted once it was sent for ratification.

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He toned down his criticism. He still had his objections, but he thought if the states didn't ratify the Constitution, the nation would either fall apart or dissolve into a civil war. Ratifying the Constitution and amending it later was the lesser of two evils. So during and after the ratification process, he kept advocating for amendments and a Bill of rights. The Bill of Rights was proposed by James Madison before the first United States Congress on June 8th, 1789. Gary's work with the government didn't stop there.

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He ran for governor of Massachusetts in 1788 and was defeated. And then he served in the House of Representatives from 1789 to 1793. In the middle of all that, he married and Thompson in 1786 and they would go on to have ten children together at the rate of almost one a year.

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He eventually became disillusioned with Congress after trying to work through extremely partisan bickering over Alexander Hamilton's proposal to assume state debt and establish a national bank. Gary retired at the end of his second term in the House and went back to Massachusetts, where he lived in Cambridge with his ever growing family.

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He didn't stay out of politics completely for very long, though. In 1796, he was a presidential elector in support of John Adams, and the following year Adams appointed him as an envoy to France. His mission there was not very successful, though this all took place after the United States and Great Britain signed the treaty and the treaty resolved some issues between those two nations. But France thought it was in violation of earlier treaties between the United States and France.

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So Gary and the rest of the delegation were then part of the X, Y, Z affair, which could maybe be a third episode. One day, the French foreign minister demanded a bribe before negotiations could begin, and then the American delegation refused to pay that bribe. This all blossomed into an undeclared naval war that lasted until one back home.

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Gary was in and out of politics before being elected governor of Massachusetts in 1810. It was during his term as governor that the term gerrymander was coined, which we're going to get right back to you in a moment. After the gerrymander, he ran for reelection and lost in 1812. But that same year, James Madison tapped him to be his presidential running mate, hoping to win the Massachusetts vote. Madison lost Massachusetts, but he won the presidency and Gary served as vice president with the same cantankerous diligence as he did the rest of his career.

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Gary died in office on November twenty third, 1814, while on his way to the Senate. He's buried at Congressional Cemetery and the monument over his grave. There's a quote from him. Quote, It is the duty of every man, though he may have but one day to live to devote that day to the good of his country. Which makes it kind of sad that his legacy today is a practice that's frequently criticized as being to the detriment of the country and its democratic process.

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And we're going to talk about that after we have a quick sponsor break.

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Elbridge Gary signed the Declaration of Independence and the Articles of Confederation. He was an unflagging presence at the Constitutional Convention. He chaired the committee that came up with a great compromise and was one of its most vocal supporters at a time when the constitutional convention was at risk of a total collapse during his inaugural address when he was elected governor of Massachusetts. He called for an end to partisan infighting and for the political parties to work together.

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But today, his legacy boils down to one word gerrymander, something that goes directly against the democratic ideals he championed during his legislative career. The map that led to the term was drawn for Massachusetts state Senate districts before 1812. The Commonwealth of Massachusetts had Senate districts that followed county boundary lines. But that year, Democratic Republicans in the state legislature redrew the map to give themselves an advantage by packing the federalist vote into only a few districts. This new map was filled with bizarre shapes that the Federalists described as, quote, carvings and mangling.

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The district that Governor Gary lived in was shaped roughly like a lowercase are tilted backward. Gary wasn't fully in support of these carved, mangled districts, in the words of contemporary biographer James T. Austin, quote to the governor, The project of this law was exceedingly disagreeable. He urged his friends strong arguments against its policy as well as its effects after it had passed both houses. He hesitated to give it his signature and meditated to return it to the legislature with his objections to its becoming law, but being satisfied that it conformed to the Constitution.

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He doubted whether against precedents to the contrary, the private opinion of a governor on a mere question of propriety or policy would justify the interposition of his negative, and he accordingly permitted it to pass.

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So that basically boils down to, well, it's not unconstitutional, but that was really only part of it when he approved these districts on February 11th, 1812. Gary, who had long resisted joining a political party but was now a Democratic Republican, was highly concerned about what the Federalist Party was doing. He thought that federalist criticism of President James Madison's foreign policy bordered on treasonous. He also feared that the Federalist Party was becoming too close to Great Britain, and he worried that Federalists secretly wanted to roll back American independence and return to the British Empire.

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It is extremely likely that all of this influenced his decision.

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Page two of the Boston Gazette on March 26, 1812, included a satirical picture of Gary's district. The district's southern end at the bottom of the hour ended in Talon's, and the northeast corner had a dragon Lakehead. Two wings sprouted just below the eastward bend at the top of the hour, and this picture ran under the heading. The gerrymander, followed by a scathing article that began, quote, The horrid monster of which this drawing is a correct representation appeared in the county of Essex during the last session of the legislature.

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There are a couple of different versions about who exactly coined the term. Gary Mander. The common theme in all of them is that somebody pointed out that this long Bennett district looked like a salamander. Then somebody else responded with something along the lines of no, no, no, it's a gerrymander. And one version of this story, it happened over dinner with illustrator Elkanah Teesdale drawing a snakey looking version of the map and poet Richard Alsup being the one to say no, a gerrymander and another version.

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It started with Boston because that editor Benjamín Russell hanging a map of the district over his desk and artist Gilbert Stuart seeing it there and adding on the wings had and talons. And then Russell was the one to say that it was a gerrymander.

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And this gerrymandered map had exactly the effect that the people who drew it wanted. In the election that followed, Democratic Republicans earned twenty nine seats while the Federalists earned eleven. But in terms of the number of votes, Democratic Republicans got fifty thousand one hundred sixty four votes while Federalists got fifty 1766. So while the Federalists got the majority of the votes, those votes earned them well under half as many seats in the Senate.

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As Gerrymander became part of the political lexicon, its pronunciation gradually shifted to gerrymander the way that we say it today, and it was included in Webster's Dictionary in 1864.

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Apart from that political cartoon of the The Gerrymander, opponents of the Massachusetts redistricting during Elbridge Geary's term as governor said it, quote, inflicted aggrieve. US wound on the Constitution and partisan gerrymandering has been similarly criticized throughout American history. When the Virginia legislature created the map to force Madison to run against Monroe, newspapers reported that it was violating the rights of the people to choose their representation in the government. President James Garfield, while he was serving in the House of Representatives, said that gerrymandering was indefensible no matter a person's politics.

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And this criticism continues until today, although there are definitely cases when politicians are more critical of the other party's partisan gerrymandering than of their own. Ronald Reagan called gerrymandering a national scandal and Barack Obama said, quote, We've got to end the practice of drawing our congressional districts so that politicians can pick their voters and not the other way around. Let a bipartisan group do it.

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But there have also been attempts to use gerrymandering in a positive way. After the Voting Rights Act of 1965, a number of states created one or more congressional districts that were meant to guarantee at least one black representative from that state. Sometimes the creation of these majority minority districts was called things like benevolent or affirmative gerrymandering. States that had a history of discriminating against black voters had to have their voting laws precleared at the federal level before they could be implemented. And there were cases where states were ordered to redraw their maps to add majority minority districts.

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But this is a contentious issue. Since these districts concentrate minority voting power into one place, it dilutes that power in the rest of the state. And there have also been cases in which lawmakers used the creation of majority minority districts as a smokescreen, deliberately packing the district to give themselves an advantage and the rest of the state. So today, intentionally created majority minority districts are usually only going to be found constitutional when they really are absolutely necessary and not a cover for partisan gerrymandering.

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The Supreme Court has made it clear that racist gerrymandering to prevent minorities from having an equal political voice is unconstitutional. And it has also issued a number of decisions related to apportionment and other aspects of redistricting. But it hasn't taken a clear stance on partisan gerrymandering before this point, which could change with the cases currently on the docket.

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Ideally, political districts reflect the people living in the district, so there will always be districts that reliably vote for one party or another. And the general consensus up to this point has been that some degree of partisan influence on how the districts are drawn is probably constitutional and to be expected.

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But what the Supreme Court is looking at right now is mainly partisan gerrymandering that followed the 2010 census, which is being described. I'm using this as a quote as extreme, according to the authors of the 2016 book Gerrymandering in America from Cambridge University Press, partisan bias roughly tripled in district maps in 2010 versus 2010. Also in 2010 was an election that saw huge Republican gains in state legislatures and governorships, which means at this point, gerrymandered districts are skewing Republican about three to four times as often as they're skewing Democratic.

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Like we said at the top of the show, in most states, whichever party is in control of the state legislature has the most poll in how the map is drawn. We got a lot of parties have always been doing this after the Wilmington Q episode, but like the parties haven't necessarily been doing us to the extreme or scale that they are right now, which is how this is, again, in front of the Supreme Court.

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Yeah. Thanks so much for joining us on this Saturday. Since this episode is out of the archive, if you heard an email address or a Facebook URL or something similar over the course of the show, that could be obsolete. Now, our current email address is History podcast at I Heart radio dot com. Our old HowStuffWorks email address no longer works and you can find us all over social media at MTT in history. And you can subscribe to our show on Apple podcast, Google podcast, the I Heart Radio app, and wherever else you listen to podcasts.

[00:33:46]

Stuff you missed in history class is a production of I Heart Radio for more podcasts from my heart radio music by her radio album, podcasts or wherever you listen to your favorite shows.

[00:34:01]

If you crack open an American history book, it's sure to be filled with founding fathers, bloody wars and the inventions that brought this country to the industrial age. But there's a whole other world that waits for us in the shadows, tales of unlikely heroes, world changing tragedies and legends that are unique to this country's spirit. So join me, Lauren Volcom, for a tour of American history, unlike any other through a new podcast from My Heart Radio and Bernanke's grim and mild, get ready for American Shadows.

[00:34:30]

Listen to American Shadows on Apple podcasts or wherever you get your podcasts.

[00:34:36]

What if you can learn from 100 of the world's most inspiring women now you can introducing Senecas 100 women to hear a new podcast brought to you by Seneca Women and I Heart Radio. In celebration of the 100th anniversary of American women getting the vote, we're bringing you the voices of a hundred groundbreaking and history making women. You need to hear women of the past, the present and women who are right now designing our future. Women who've broken barriers in outer space on the Supreme Court and on the playing fields.

[00:35:08]

Through one hundred episodes, you'll get insight into not just what these women accomplished, but how they think about the world. You'll hear about their setbacks, their successes and what they learned along the way. I'm Kim Azorella, co-founder of Seneca Women and co-author of the best selling book Fast Forward. Listen to Senecas 100 women to hear on the radio app Apple podcasts or wherever you get your podcasts.