Remember this exchange from the oral argument in Shelby County?
JUSTICE KENNEDY: Well, I — I do think the evidence is very clear that Section — that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965. No doubt about that.
GENERAL VERRILLI: And I think it remains true –
JUSTICE KENNEDY: But with — with a modern understanding of — of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it’s not clear — and — and with the fact that the government itself can commence these suits, it’s not clear to me that there’s that much difference in a Section 2 suit now and preclearance. I may be wrong about that. I don’t have statistics for it. That’s why we’re asking.
GENERAL VERRILLI: I — I don’t — I don’t really think that that conclusion follows. I think these under the — there are thousands and thousands of these under-the-radar screen changes, the polling places and registration techniques, et cetera. And in most of those I submit, Your Honor, the — the cost-benefit ratio is going to be, given the cost of this litigation, which one of the — one of the reasons Katzenbach said Section 5 was necessary, is going to tilt strongly against bringing these suits.Even with respect to the big ticket items, the big redistrictings, I think the logic Katzenbach holds in that those suits are extremely expensive and they typically result in after-the-fact litigation.
Now, it is true, and the Petitioners raised the notion that there could be a preliminary injunction, but I really think the Petitioner’s argument that Section 2 is a satisfactory and complete substitute for Section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what Section 5 does. They haven’t made any effort to do that. And while I don’t have statistics for you, I can tell you that the Civil Rights Division tells me that it’s their understanding that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued.
So I don’t think that there’s a basis, certainly given the weighty question before this Court of the constitutionality of this law, to the extent the argument is that Section 2 is a valid substitute for Section 5, I just don’t think that the — that the Petitioners have given the Court anything that allows the Court to reach that conclusion and of course…