I understand the issue about unequal scrutiny, but changing things so that wrongs may drag out for years would be bad.
In last year's election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina's voter ID law for 2012. If Section 5 was gone and Section 2 was the only recourse, these major changes would've been in effect during the last election, and could only be challenged after years of costly and difficult litigation. The voters disenfranchised in the meantime would have no recourse, other than the hopes of a preliminary injunction from the courts, which is an increasingly rare prospect in a judiciary dominated by conservatives, especially in the South.
It's particularly ironic that Shelby County, Alabama, of all places, would bring this challenge to Section 5, given the recent history of discrimination in the county and state. Before local elections in 2008, the city of Calera redrew its city boundaries, eliminating the City Council's lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery's district from 71 percent to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city's demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.
The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, "I realized how important Section 5 is," Montgomery said.
If it hadn't been for Section 5, there would be no black members of the city council in Calera. "Assuming I accept your premise...that some portions of the South have changed, your county pretty much hasn't," Justice Sotomayor told Rein.