Section 5 of the Voting Right Act includes a “non-retrogression” rule. That means states are not allowed to dilute the political power of minority groups when redistricting.
In 2000, with this principle in mind, a Democratic-controlled Alabama legislature passed a new districting map that included 27 house districts and eight senate districts with African-American majorities (“majority-minority” districts).
In 2012, following the 2010 census, a new Republican-controlled legislature attempted to create a new map. The number of people living in these majority-minority districts had fallen considerably, but the new legislature pledged to retain an African-American majority in those districts—a laudable goal. However, the legislature went a step further by seeking to keep the exact same percentages of African Americans in those districts. It claimed it needed to do so to comply with the non-retrogression rule.
Because the populations had fallen so drastically in these districts, the mapmakers had to bring in swaths of black voters to maintain the high minority voter percentages. In one particularly egregious instance, 15,785 new residents were added to one of the senate districts. Only 36 of them were white. The new map packed African Americans into just a handful of districts, diluting their voting power in the rest of the state, under the guise of protecting them.
The Voting Rights Act does not define retrogression as strictly as Alabama did. The state was not required by Section 5 to maintain exact percentages in the majority-minority districts. In fact, another line of cases interpreting the Equal Protection Clause of the Fourteenth Amendment prohibits states from placing too much of an emphasis on race when redistricting.
In this oral argument, the Alabama Legislative Black Caucus and the Alabama Democratic Conference have challenged this redistricting plan under the Equal Protection Clause.