Perez and those in favor of keeping Section 5 respond by pointing to the so-called "bailout" provision of the act, which allows jurisdictions that exhibit good behavior—no reports of any actions deemed discriminatory for 10 years—to take themselves off the pre-clearance list.
Shelby County, which argued that past behavior was irrelevant, remains on the list because of an incident in 2008. That year, the city leaders of Calera, Ala. implemented a redistricting plan that led to the city's only African-American city council member, Ernest Montgomery, to lose his seat. After the Justice Department threw out the election results and forced the city to draw a more equitable district map, Montgomery won his seat back.
The Court's liberal justices backed pre-clearance on these grounds, saying that regardless of the formula, the act still works.
"Assuming I accept your premise, and there's some question about that—that some portions of the South have changed—your county pretty much hasn't," Justice Sonia Sotomayor said at the beginning of the arguments. "Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?"
If Section 5 is eventually struck down, the decision will not come as a surprise to some. When a Voting Rights Act case reached the Supreme Court in 2009, the court ruled on a smaller procedural issue and did not address Section 5. But Chief Justice John Roberts, an opponent of the law since his days at the Justice Department under Ronald Reagan, was skeptical of the lawyers defending the Voting Rights Act, feeling that the counselors were implying that "southerners are more likely to discriminate than northerners."
In his written opinion on that case, he elaborated further.
"The evil that [Section 5] is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.