Is It Time to Rethink Hyper-Minority Districts?

As the 2022 redistricting wars heat up, multiple lawsuits may help determine the future of Congress.

A map of blue-shaded congressional districts divided by red lines, and the U.S. Capitol as a background in the middle of the illustration
Getty; The Atlantic

Most members of Congress crave political security, and Terri Sewell has it. For more than a decade, she’s represented Alabama’s Seventh District, a 61 percent Black hodgepodge that awkwardly links the bustling cities of Birmingham and Montgomery via the sprawling, agriculturally rich Black Belt (named for the region’s dark topsoil), where more than a quarter of residents still live below the federal poverty line. The Seventh has never given her less than 72 percent of the vote.

In 2022, she wants to dismantle it.

“If we’re a quarter of the population, we should be a quarter of the seats,” Sewell told me recently. In last year’s census, Black residents accounted for 27 percent of Alabama’s population. Black voters, however, effectively wield power in just one of its seven districts—even though two districts with slimmer Black majorities would be possible to draw. “I’m for broadening the representation of African Americans across Alabama, instead of concentrating it in my district,” she said.

The current map, passed by the state’s Republicans in 2011, stuffs Black voters into the Seventh District so efficiently that when the Democrat Doug Jones narrowly upset the Republican Roy Moore in a 2017 special election for the U.S. Senate, Jones lost all six of the state’s white-majority districts but prevailed overall thanks to a whopping 57-point margin in the Seventh.

All over the Deep South—in states such as Alabama, Louisiana, Mississippi, and South Carolina—the story is familiar: Gerrymandered maps have packed Black voters into a lone Voting Rights Act district, while Republicans dominate every surrounding white-majority seat. In past decades, many of those VRA districts’ Democratic representatives were loath to unravel their own safe seats. But today, Democrats’ prevailing mentality has shifted. And as the 2022 redistricting wars heat up, multiple lawsuits aiming to unpack hyper-minority seats could help determine control of the House.

Sewell, 56, has sturdy roots in both the rural and urban ends of the Seventh: Her mother, Nancy Gardner Sewell, who passed away in June, won election as Selma’s first Black councilwoman three decades after John Lewis was nearly beaten to death crossing the Edmund Pettus Bridge. Terri Sewell graduated from Princeton and Harvard Law (where she knew Michelle and Barack Obama separately, before they met each other), rising to become the first Black woman partner at her law firm in Birmingham, where she now resides.

All of which is to say that breaking the Seventh District in half would be a bittersweet sacrifice. “It would be hard to split up the Black Belt,” she acknowledged. “That is a concern. But for me, the need for another minority-opportunity district overrides that concern.”

The irony is that the creation of Alabama’s Seventh and other districts like it were once major voting-rights breakthroughs. In 1992, these seats birthed new opportunities for Black candidates that hadn’t existed since Reconstruction. But as times and political conditions have changed, many of the same carve-outs that may have been necessary to elect new Black members three decades ago now look more like cul-de-sacs, aiding Republicans more than the cause of equal representation for minority voters.

More than 50 years after the passage of the VRA, the legal framework surrounding race and redistricting remains vague, unsettled, unevenly applied—and slow to keep up with changing political realities.

The current prevailing jurisprudence traces back to the landmark Supreme Court decision in Thornburg v. Gingles (1986), which interpreted Section 2 of the VRA to require that majority-minority districts be drawn if a racial minority was both politically cohesive and sufficiently numerous to form a majority in one district. In 1991, President George H. W. Bush’s Justice Department, charged with enforcing the VRA, took this to the extreme by compelling southern states to maximize majority-minority districts no matter how strange their shape. In some cases, the resulting lines were so garbled they looked more like white noise on an old TV with poor reception than discernible polygons.

In the 1992 election, these new VRA-compliant gerrymanders succeeded in tripling the House’s southern Black ranks, from five to 17. But their creation also had the side effect of “white-washing” adjacent districts, making them less Black and more Republican. In 1994, when President Bill Clinton and Democrats suffered a midterm backlash, Republicans gained 54 House seats, including a raft of pickups in states where new VRA districts had been drawn. In the mid-1990s, the Supreme Court reined in the most egregious district shapes, ruling that bizarre boundaries drawn using race as the “predominant” factor violated the equal-protection clause. But most new VRA seats remained, albeit with slightly modified lines.

For a time, this uneasy balance gave rise to an “odd bedfellows” dynamic in which both Black Democrats and white Republicans vigorously defended inkblot-like seats as crucial guarantors of minority access. As recently as 2010, Democratic Representative Corrine Brown and Republican Representative Mario Diaz-Balart, both of Florida, filed a joint suit aimed at preserving Brown’s district, which slithered 150 miles through unpopulated swamps to link Black voters in Jacksonville and Orlando.

In recent decades, the Supreme Court has struggled—much like trying to define obscenity—to strike a balance between minority voting rights and sane-looking cartography. In the 2009 case of Bartlett v. Strickland, the Court’s 5–4 conservative majority ruled that states could choose to draw minority “coalition districts” (in which a sub–50 percent minority can win with support from other groups), but that only true majority-minority seats would merit protection under Section 2 of the VRA.

This variable legal landscape is problematic for a few reasons. As more non-Black voters in the urban South have become more open to voting for Black candidates, there are now fewer areas where districts with large Black majorities are necessary to elect them.

Today, only 18 of the House’s 53 Congressional Black Caucus members hail from districts where Black residents exceed 50 percent of the voting-age population, including just eight of the 21 from the South. The median CBC member now represents a district that’s a hair shy of 40 percent Black. Yet Gingles and Bartlett continue to offer GOP mapmakers a convenient, if cynical, legal rationale to keep Democratic votes bottled up in remaining hyper-packed Black seats.

“The bright line of 50-percent-plus-one [minority share in a district] might be outdated, given the nuances of political realities across the country,” says Leah Aden, the deputy director of litigation at the NAACP Legal Defense and Educational Fund, which is technically nonpartisan. “And that’s part of the conversation that’s happening right now.”

In the South, where partisan voting patterns remain highly polarized by race, disentangling mapmakers’ partisan motives—which can be legal—from impermissible racial ones can be virtually impossible. In 2019, the Supreme Court definitively ruled that partisan gerrymandering isn’t a matter for federal courts to decide. That has led Republicans to accuse Democrats of using racial claims as a legal backdoor to overturn GOP-drawn maps and win more seats.

In 2016, North Carolina GOP State Representative David Lewis infamously said of his plan to pass a new congressional map, “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” Lewis’s words weren’t blatant braggadocio so much as a shrewd declaration that his motives were partisan, not racial.

Just weeks earlier, a panel of federal judges had ruled in Democrats’ favor to strike down the GOP’s 2011 plan for unnecessarily packing Black voters into two seats with squidlike shapes, and one judge complained that “traditional redistricting principles were subordinated to race.”

One of those seats, North Carolina’s Twelfth, is the most litigated district of all time. In the early 1990s, it meandered 160 miles, from Gastonia to Durham, grabbing every Black voter it could, at points only contiguous via the median strip of Interstate 85. In the 2016 court-ordered remapping, Republicans finally condensed it into a neat, compact seat in Charlotte—reducing its Black voting-age population share from 50 percent to 35 percent—and cutting incumbent Representative Alma Adams’s home 90 miles north, in Greensboro, out of the seat. Adams, however, moved to Charlotte and easily won reelection in the new Twelfth District. Today, she’s happy with the outcome. “I was never comfortable with all the packing. I think it limits the participation we can have as African Americans.”

To the northeast, Representative G. K. Butterfield, who got his start as a young Black lawyer in the 1970s challenging discriminatory at-large city-council districts, saw his winning margin in North Carolina’s rural First District reduced from 40 points to eight points after Black voters in Durham were unpacked into another seat. He, too, hasn’t minded the change. “Some of our [CBC] members are beginning to rethink what the [Black] thresholds should be.”

In 2014, Democrats won another federal lawsuit to break up a hyper-Black majority district: Virginia’s Richmond-to-Tidewater Third, held by Bobby Scott, who became Virginia’s first Black member of Congress in more than a century when he was elected in 1992. After courts ordered a new map in 2016, Virginia elected both Scott and a second Black member, Donald McEachin, from seats that were only 46 percent and 42 percent Black, respectively. “To suggest there is some numerical barrier that you have to achieve is absurd,” Scott says. “If the votes are changing, the standard ought to change.”

Today, the pendulum has swung: Whereas in previous decades, districts’ racial makeup was a subject of acrimonious debate within the Congressional Black Caucus and the House Democratic Caucus, the party is now closer to a consensus that minority voters deserve to wield influence in more seats. Democrats, led by former Attorney General Eric Holder’s well-funded National Democratic Redistricting Committee (NDRC), are expanding their unpacking crusade to Alabama, Louisiana, and South Carolina.

Republicans intend to fight them tooth and nail. “I don’t think Section 2 of the VRA gives any justification for a district that isn’t majority-minority, based on Bartlett,” says Jason Torchinsky, a partner at Holtzman Vogel Josefiak Torchinsky and a go-to GOP redistricting lawyer. “If your argument is that you need to draw a 40 percent district for some reason that’s race-based, I think that’s a Fourteenth Amendment violation.”

Many Democrats fret that the current redistricting cycle is the first since the Supreme Court’s 2013 ruling in Shelby County v. Holder struck down a key section of the VRA that required southern states to clear changes to voting laws, including maps, with the Justice Department. The John Lewis Voting Rights Advancement Act, of which Sewell is a main sponsor, would re-enshrine the VRA’s Section 5 preclearance regime.

But in practice, Section 5 of the VRA never did much to address overpacking. In 2011, the Obama Justice Department actually granted approval to every single GOP-drawn map in the Deep South, largely because its statutory mandate under Section 5 was to prevent retrogression—the weakening of existing minority opportunities—rather than to compel new opportunity districts where they were possible.

“I do think it’s interesting that when the Holder DOJ was in charge of preclearance, they didn’t object to a single [GOP] redistricting map in any of these states,” Torchinsky notes.

Holder begs to differ. “The granting of preclearance was never meant to indicate that a map was either fair or could withstand any court challenge,” he told me via email. “As the Supreme Court has repeatedly said, maps that pack voters together based on their race are unconstitutional—and there is no question they are discriminatory.”

Not every Democrat is on board with Holder’s plan. Representative Bennie Thompson, who, since 1993, has represented a 64 percent Black seat in the Mississippi Delta, says that although every state is different, “I’m not one who would sacrifice [Mississippi’s Second] District on a whim to elect another Democrat.” Thompson argues that current VRA seats should be left alone, while Republican districts in other states should be reconfigured to enhance minority voting strength. “There are even stranger districts represented by white Republicans than there are by Black Democrats,” he says, pointing to warped lines in Texas.

But in 2018, the highest-ranking Black member of the House, Majority Whip Jim Clyburn, wrote a letter to his hometown newspaper lambasting South Carolina’s GOP for packing his district to diminish Black influence elsewhere back in 2011. “If I had drawn the lines, my district would not be 58 percent Black, and [GOP Representative] Joe Wilson, with whom I share Columbia, would not have a district that is 68 percent white,” Clyburn wrote. “I am hopeful that when redistricting is done after the 2020 decennial census, stacking and bleaching will not be the primary goals.”

The newest member of the Congressional Black Caucus, Louisiana’s Troy Carter, echoes Clyburn and Sewell’s sentiments. In April, Carter was elected to a 59 percent Black district that zigzags from New Orleans to Baton Rouge.

“We’ve only got one of six seats in a state that’s a third Black,” notes Carter, a former state senator from New Orleans. “If Baton Rouge and Opelousas can be tied in for a second majority-minority district, I’m all in. This process isn’t about me. Sometimes you have to give up some of your own to help someone else.”

Marc Elias, the same Democratic mega-lawyer who headed Democrats’ successful suits in North Carolina and Virginia, is slated to quarterback claims deeper in the South this time—with virtually unlimited funding from Holder’s NDRC. And although courts covering Alabama, Louisiana, and South Carolina could be tougher venues, any victories could reverberate beyond the state’s boundaries. After all, Democrats are sitting on a razor-thin eight-seat margin in the House, rendering every seat crucial in 2022.

Bobby Scott, 74, finds wry satisfaction in his colleagues’ attitudinal shift toward the pro-unpacking stance he says he’s espoused since serving in Virginia’s House of Delegates 40 years ago.

“Ten years ago, Marc Elias IDed me as the only CBC member advocating for a lower Black percentage in my district,” Scott says with a chuckle. “I’ve been on the barrel end of abuse for taking a position that has eventually been proven right.”