Notes

1. THE FIRST GERRYMANDER

1. The year was 1724: The lords proprietors were a group of eight British noblemen who had been awarded ownership of Carolina by King Charles II in 1663. Although the crown retained sovereignty over the land, the lords proprietors were granted significant powers under their charter, including the ability to lay and collect taxes and to maintain law and order. In 1719, South Carolina was spun off as its own separate royal colony, and in 1729 King George II bought off the remaining proprietors, also bringing North Carolina under the direct control of the crown.
2. This translated into: For the original research in this chapter, I am indebted to the Documenting the American South archive of colonial-era records, which is maintained by the University Library of the University of North Carolina at Chapel Hill.
3. Later that same year: In his deposition, Gale expresses that “he knows of no reason he has ever given the said Govr for such his insupportable behavior,” but speculates that Burrington’s enmity might have dated back to Gale’s time as a customs agent at the Port of Beaufort, where he had advised another agent at Roanoke who was embroiled in a dispute with Burrington over the seizing of a trading vessel.
4. And Pelham’s connections: In an autobiographical letter to the journal The Champion many decades later, Burrington claimed that he had not made Pelham’s acquaintance until the late 1720s. This assertion is doubtful, given the contrary conclusion reached by numerous historians, and might have been an attempt to downplay the political connections that had jump-started his career.
5. Nevertheless, he remained: The other votes against ratification were cast by Edmund Randolph and George Mason of Virginia, who are discussed in chapter 2.
6. Adding further embarrassment: Gerry was defeated by Strong 50–44 in 1800, 56–44 in 1801, 60–39 in 1802, and 67–32 in 1803. Things were not trending in the right direction for him.
7. In a now famous: While contemporaneous sources, not to mention early historical accounts, credit Stuart as the creator of the gerrymander cartoon, more recent analysis argues that Tisdale was actually responsible, and I’m inclined to agree. The identity of the newspaper editor who originally coined the term “gerrymander” is believed to be either Benjamin Russell, his brother John Russell, or Nathan Hale.

2. JAMES MADISON’S HENRYMANDER

1. He made a name: The House of Burgesses, established in 1642, was the elected chamber of the Virginia General Assembly during the colonial era. It existed until 1776, when the Commonwealth of Virginia declared independence from Great Britain, at which time it was replaced by the house of delegates, which continues to this day.
2. In a letter to: The original correspondence referenced and quoted in this chapter is sourced from both the National Archives’ Founders Online project, a joint collaboration of the National Historical Publications and Records Commission and the University of Virginia Press, and from The Documentary History of the First Federal Elections, 1788–1790, published by the University of Wisconsin Press.
3. Jefferson’s church-state: Jefferson’s bill was titled the Virginia Statute for Religious Freedom, and in addition to guaranteeing the personal right to free exercise of religion that would later be incorporated into the First Amendment to the U.S. Constitution, it disestablished the Church of England in the commonwealth.
4. Rumors of Jefferson’s: Following through on a promise he had made while in Paris, whereby Hemings only agreed to return to Monticello if Jefferson pledged to release her children from bondage, he freed each of them on their twenty-first birthdays. None of his slaves other than those affiliated with the Hemings family were similarly granted freedom, either during his lifetime or in his will, although his heirs were forced to sell the 130 remaining slaves at Monticello to pay the debts incurred by his estate. In his 1873 memoir, Madison Hemings, one of Sally’s children, claimed not only that Jefferson was his father but also that he had been named after his close friend James Madison at the request of Dolley Madison, James’s wife.
5. According to a letter: The word “militia” here carries the same meaning as in the Second Amendment to the U.S. Constitution. It refers, in the words of the Supreme Court justice Antonin Scalia, to “those who were male, able bodied, and within a certain age range,” and not, as the term is more commonly used today, to any kind of organized military or paramilitary force. Because the number of militiamen was a rough proxy for the adult male population, it could be used to draw districts that were approximately equal in terms of their respective numbers.

3. REVENGE OF THE WHIGS

1. In 1816, for example: The Constitution provides states with almost unlimited discretion to determine how their Electoral College votes will be chosen during presidential elections. In the early republic, most states decided to allocate their electoral votes among districts, with each district sending one representative to the Electoral College. A few allowed the state legislature to pick their electors directly. Today, almost every state has transitioned to a winner-takes-all approach, where the candidate who receives the most popular votes in the state receives all of that state’s Electoral College votes. Maine and Nebraska still utilize a version of the district system.
2. The former president: Adams remains the only former chief executive to be elected to the U.S. House of Representatives after leaving the office of president. He served for seventeen years before collapsing on the House floor from a massive cerebral hemorrhage during a debate on February 21, 1848, and died two days later. Andrew Johnson served for four months in the U.S. Senate before his death in 1875, while William Howard Taft enjoyed a successful nine-year career on the Supreme Court as chief justice following the end of his presidency. He’s widely regarded as a far more successful justice than he was a president.
3. Fueled by voter backlash: Zachary Taylor was also elected on the Whig ticket in 1848. Though they won only two presidential elections, four Whigs would actually occupy the Oval Office, because both Harrison and Taylor contracted serious illnesses and died shortly into their administrations. Their vice presidents, John Tyler and Millard Fillmore, round out the party’s fairly nondescript contributions to the presidency. Tyler, a former Democrat, was even expelled from the Whig Party while serving as president and suffered the ignominy of his own party commencing impeachment proceedings against him in the House. Both Tyler and Fillmore also managed to lose their party’s nominations when running for reelection, something that only three other presidents in U.S. history have achieved. One could be forgiven for thinking that the Whig Party was not sending its best people.
4. After an Ohio jeweler: Performed to the tune of the old minstrel song “Little Pigs,” the lyrics to the first verse and chorus of “Tip and Ty,” as the song was originally popularized, were as follows:

What’s the cause of this commotion, motion, motion,

Our country through?

It is the ball a-rolling on

For Tippecanoe and Tyler too.

For Tippecanoe and Tyler too.

And with them we’ll beat little Van, Van, Van,

Van is a used up man.

And with them we’ll beat little Van.

5. Though the Harrison-Tyler: The election in Ohio saw Harrison win 54 percent of the vote to Van Buren’s 46 percent.
6. It became immediately: The term “Locofoco” originated in the machine politics of New York’s Tammany Hall. Referencing a patent for a self-lighting cigar that had been issued to John Marck in 1834, it was adopted by the Whigs as a derisive moniker for their Democratic opponents after the Jacksonian faction made use of the device to light candles at one of their meetings, the gaslights having been turned off by the Tammany men in an effort to break up the assembly. A portmanteau of the Spanish word loco, meaning “mad or crack-brained,” and a misspelling of the Italian word fuoco, meaning “fire,” the nickname continued to be used well into the 1850s, even after the Whig Party, which had coined it, had ceased to exist.
7. The specifics of the legislation: For the original research in this chapter, I am greatly indebted to the fantastic resources of the Ohio Memory project, a collaborative statewide digital library program created by Ohio History Connection and the State Library of Ohio. I’d also like to thank Jenni Salamon, whose article “Ohio’s 1842 Election: Absquatulators vs. Gerrymanderers” inspired me to delve into the details of this largely unknown historical gerrymander.
8. “Next morning the Tin Pan”: The “Tin Pan” was, according to The Oxford Dictionary of American Political Slang, a “secret caucus of Democratic legislators working outside normal procedures and hierarchies to develop legislation to be forced by its majority power upon the state legislature.”
9. In the elections: The Apportionment Act had thrown a wrench into the 1842 midterms, with more than half of the states following suit with Ohio and delaying their elections until 1843. Maryland even waited until February 1844, almost a full year after the Twenty-Eighth Congress had begun.
10. Branded by the National: The others are Bill Clinton in 1998 and Donald Trump in 2019 and 2021. Articles of impeachment had been drawn up against Richard Nixon by the House Judiciary Committee in 1974, but he resigned his office before they could be formally voted on.

4. HONEST ABE STACKS THE STATES

1. Less than four years: Hamilton’s son Philip had also been killed in a duel with George Eacker at the same location in 1801. Some historians believe that the pistols used in the Hamilton-Burr duel, which were supplied by John Barker Church, Hamilton’s brother-in-law and a business partner of Burr’s, were also used in that duel, and possibly another between Burr and Church himself in 1799, during which neither man was injured. While both Hamilton and Burr discharged their weapons during the duel, the question of who fired first is a matter of considerable historical debate, because, per the principles of code duello, all others present had turned their backs as the duel commenced. Burr’s bullet struck Hamilton in the lower abdomen, above the right hip, fracturing several ribs and causing fatal damage to his internal organs. Hamilton’s bullet was later found to have passed through the limb of a cedar tree, on a trajectory that would most likely have taken it above Burr’s head. So, while his discharge might have been accidental—an involuntary response to the wound he had received from Burr—it nevertheless remains possible that Ham shot first.
2. Gravely wounded in the attack: A later conspiracy theory alleged that Cermak, rather than Roosevelt, had actually been the intended target of the assassination attempt. According to this account, Zangara was a hired killer working for the Chicago crime boss Frank Nitti, one of Al Capone’s top henchmen, who had targeted Cermak in retaliation for his campaign promise to crack down on organized crime. Most historians dispute this conclusion, and Zangara himself stated during his confession that his goal had been to “kill kings and presidents first and next all capitalists.”
3. One of those opponents: A split in the Democratic Party between pro-slavery southern Democrats and their northern counterparts, who endorsed popular sovereignty, resulted in the party nominating two different presidential tickets for the 1860 election. The northern faction backed Douglas, while the southerners rallied behind Vice President John C. Breckinridge of Kentucky, who served in the administration of James Buchanan. A group of former Whigs also established the Constitutional Union Party, which nominated the former senator John Bell of Tennessee, who sought to avoid secession by campaigning on a pro-Union platform in the South. All four of the major candidates received electoral votes, although Lincoln ran out a comfortable winner.
4. But they nevertheless moved forward: Perhaps the most fascinating, not to mention bizarre, secession story of the Civil War comes in the form of the tiny hamlet of Town Line, New York, outside Buffalo. Sometime in 1861, the men of Town Line met secretly in the local schoolhouse and voted by an 85–40 majority to leave the Union. On their minds that day was not the question of slavery but a desire on the part of the German-immigrant population, left war weary by the conflicts in their homeland, to avoid a military draft. Several residents even fled to Canada when the war broke out. Since Town Line was, and remains to this day, an unincorporated entity sandwiched between the villages of Alden and Lancaster, the vote carried no legal weight. Eighty-five years later, in a 1946 ceremony that was for some reason presided over by the Hollywood actor Cesar Romero, the residents of Town Line voted to rejoin the Union. The margin was 90–23. The insignia of the Town Line Volunteer Fire Department continued to incorporate the Confederate flag, as well as the slogan “Last of the Rebels,” until 2011, when it was replaced with the state flag of New York.
5. In the aptly named case: The Court’s decision entertained the somewhat narrower legal question of whether two individual counties, Berkeley and Jefferson, properly belonged in the state of Virginia or West Virginia. While the direct question of the legality of the secession itself was not before the Court, in ruling in favor of West Virginia with regard to those two counties, the justices at least tacitly endorsed its validity.
6. But like other Democratic hopefuls: There have been four presidential elections in U.S. history in which a candidate lost the popular vote and still won an Electoral College majority. On each occasion, the Democratic candidate was on the losing side. In addition to Tilden, Grover Cleveland (1888), Al Gore (2000), and Hillary Clinton (2016) all found themselves on the wrong end of a popular-electoral vote split. Andrew Jackson also won the popular vote in 1824, but no candidate reached a majority in the Electoral College, leading to John Quincy Adams being selected as president by the House of Representatives in a contingent election.

5. FRANKFURTER’S POLITICAL THICKET

1. Frankfurter’s papers: In November 1972, it was discovered that more than 1,000 pages of Felix Frankfurter’s papers, including his correspondence with President Lyndon Johnson and Chief Justice Charles Evans Hughes, had been stolen from the Library of Congress. An FBI investigation ensued, and a grand jury was empaneled, but no suspects were ever publicly identified or charged. Even the full scope and timing of the theft were hard to pin down. Frankfurter’s papers, consisting of more than 250 boxes of documents, had been open to the public since 1967, but no comprehensive inventory had yet been compiled. The FBI suspected that the thief had been a scholar, narrowing their investigation to a list of researchers who had requested access to the other major repository of Frankfurter papers at the Harvard Law School Library, but had been denied. Decades later, Roger Newman, a journalism professor who subsequently authored a biography of Frankfurter’s Supreme Court colleague Hugo Black, confirmed to journalist Jill Lepore that he was the FBI’s prime suspect and had been brought before the grand jury for questioning in October 1973. He denied any knowledge of the heist. The FBI quietly ended their investigation in March 1974. None of the stolen pages have ever been recovered.
2. He finished out the war: The two presidents Roosevelt, Theodore and Franklin, had remarkably similar career paths on their way to the White House. They both served as members of the New York state legislature, assistant secretary of the navy, and governor of New York.
3. The Court of the early 1930s: The Lochner era takes its name from the 1905 case Lochner v. New York, where a 5–4 majority struck down a state law regulating the working hours of bakery employees. The decision was based on a controversial theory of due process known as the liberty of contract, which posited that the Constitution prohibits government from “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” The portrayal of the Court as an activist institution during this period has been disputed by many later conservative legal scholars, who point out that from 1887 to 1910 fully 83 percent of the state economic regulations that the justices reviewed were upheld.
4. Kenneth W. Colegrove: Colegrove’s second claim to fame, or more accurately infamy, in addition to lending his name to a Supreme Court decision, came when he was ousted from his position at Northwestern over his outspoken support for McCarthyism. In addition to fundraising on McCarthy’s behalf, Colegrove authored a twelve-page pamphlet defending the senator, which was nationally distributed by Freedom Clubs Inc. “It is difficult to name any university where a communist cell does not exist,” Colegrove said in 1952, “nor in which there is not one or more communist professors.”

6. ECHOES OF SLAVERY

1. Echoes of Slavery: The title of this chapter references a photography series by Curtis Graves, whose story as a Texas civil rights pioneer features prominently. “ ‘Echoes of Slavery’ is from my ‘Architecture of Enslavement’ collection,” Graves wrote in a 2013 article promoting a documentary in which he was featured, “and was taken on the Evergreen Plantation where my great grandmother, Celeste, was born, about 35 miles up river from New Orleans. The plantation still stands.”
2. Meanwhile, the previous at-large system: While the legal wrangling went on even after the passage of the new apportionment plan in 1965 (House Bill 195), the court allowed the new districts to be used for the 1966 state legislative elections. In 1967, the Supreme Court in Kilgarlin v. Hill vacated the lower court ruling upholding the plan, and the case would continue to be mired in litigation for most of the remainder of the decade.
3. He was the first: The Wood assassination was followed by the murders of Richard J. Daronco of the Southern District of New York, who was shot and killed by the family member of a disgruntled former litigant in 1988, and Robert Smith Vance of the Fifth Circuit, who was murdered in a mail bomb attack in 1989. More recently, John Roll of the District of Arizona was shot and killed in Tucson in 2011 during the assassination attempt on Congresswoman Gabrielle Giffords by Jared Lee Loughner.
4. In 1911, the Alabama: The 1901 Alabama Constitution remains in effect to this day. At 310,296 words, most of which consist of its 977 amendments (at the time of this writing), it is both the longest and the most amended constitution in the world. One estimate places its length at more than twelve times that of the average state constitution and more than forty-four times that of the average national constitution.
5. And while he performs: For the record, those nine words were “Mr. Chief Justice, and may it please the Court.”

7. A BLUE TIDE IN THE GOLDEN STATE

1. “hard-boiled San Francisco Democrat”: For my research into Burton’s background, I relied heavily on John Jacobs’s excellent 1995 biography, A Rage for Justice: The Passion and Politics of Phillip Burton.
2. In an apparent attempt: Godwin’s law (or Godwin’s rule of Hitler analogies): “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

9. WIN ONE FOR THE WHIZZER

1. In a 5–4 ruling: Though the exact wording may vary, Miranda requires law enforcement to advise criminal suspects of the following:
1. They have the right to remain silent.
2. Anything the suspect does say can and may be used against them in a court of law.
3. They have the right to have an attorney present before and during questioning.
4. They have the right, if they cannot afford the services of an attorney, to have one appointed, at public expense and without cost to them, to represent them before and during questioning.
2. “But if you say”: Prior to 2004, the names of the individual justices who asked questions during oral arguments were not included in the publicly released Supreme Court transcripts. Interjections from the bench were instead prefaced only with the notation “Question.” Though diligent court-watching sleuths may be able to identify the individual justices from the vocal cues in the recordings, I do not presume to possess either the knowledge or the experience to venture such a guess. I will only stipulate, and with some confidence, that the questions quoted in this section did not come from Justice Sandra Day O’Connor.

10. THE HANDSHAKE DEAL

1. On July 8, Paterson: The Ravitch appointment was later upheld by the New York Court of Appeals.

11. HOLLOW HOPE

1. The legislature gratefully passed the plan: Under the North Carolina Constitution, the governor has no veto authority over redistricting legislation, so the plan became law immediately upon being passed by both houses of the general assembly.
2. Lacking the votes: Wisconsin law requires at least twenty senators to be present for the passage of a fiscal bill. The Republican majority in the state assembly was sufficiently large that it constituted a quorum without a single Democrat needing to be present.

CONCLUSION: IF YOU CAN KEEP IT

1. The districts he drew: Some modifications were made to Hofeller’s 2011 map after the U.S. Supreme Court’s ruling in the 2017 case of Cooper v. Harris, which struck down Districts 1 and 12 as unconstitutional racial gerrymanders. The overall partisan slant of the map, however, remained in place.
2. It’s perhaps best: The information on state redistricting procedures in this section is sourced largely from the comprehensive resources published by the National Conference of State Legislatures (www.ncsl.org) and from the All About Redistricting website maintained by the Loyola Law School professor Justin Levitt (redistricting.lls.edu). Any errors in interpretation of their data are entirely my own.