The D.C. Circuit correctly decided Northwest Austin Municipal Utility District Number One v. Mukasey. The court subjected the 2006 reauthorization of § 5 of the Voting Rights Act to the rational and appropriate test announced in South Carolina v. Katzenbach. Under this test the court found that Congress had a rational basis to extend § 5 based on evidence of continued racial discrimination in voting. On review, the Supreme Court will uphold the § 5 reauthorization in spite of the congruent and proportional test announced in City of Boerne v. Flores which is used to review enactments passed pursuant to Congress’ Fourteenth Amendment enforcement power. Even though the Amendments are supposed to be enforced coextensively, the Court will continue to apply the Katzenbach test to enactments passed pursuant to § 2 of the Fifteenth Amendment or apply the congruent and proportional test in the same loose fashion that it was applied in Tennessee v. Lane. The disconnect occurs because § 5 of the VRA combats racial discrimination—a suspect class, in voting—a fundamental right. Both are subject to strict scrutiny and the Court gives Congress wide latitude to remedy Constitutional violations in these areas. Justice Scalia has hinted that he endorses the disconnect between the Fourteenth and Fifteenth Amendment enforcement powers and Justice Kennedy will also side with the Court’s more liberal bloc in NAMUDNO based on past positions he has taken.
Available at: http://works.bepress.com/cameron_eubanks/2/