Since I’ve seen some confusion about this on twitter, I wanted to clarify this point. If the Section 5 pre-clearance regime was still in place, the Department of Justice would still have pre-cleared Alabama’s plan — as the Obama administration did, with a similar plan, after the 2010 redistricting. The pre-clearance regime only blocked changes to voting rules or redistricting plans that were “retrogressive,” meaning that the changed caused a diminishment in minority voting opportunities from the prior plan. In this case, the prior Alabama map included one VRA district. The new map also included one VRA district. Thus, the new map was not retrogressive.

The District Court held that Sec. 2 of the VRA required the creation of an additional VRA district. In enforcing the pre-clearance regime, the DOJ did not enforce Sec. 2 and did not have the power to enforce Sec. 2. In other words, DOJ pre-cleared plans that would violate Sec. 2, as long as they were not retrogressive. Plaintiffs then had to bring Sec. 2 litigation in court, as was done in Alabama, if they wanted to allege that a map violated Sec. 2.