Zachary Price has posted this draft on SSRN (forthcoming, NYU Law Review Online). Here is the abstract:
In Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), the Supreme Courtsuggested in dicta that federal legislation that treats states unequally may be constitutionally suspect. This suggestion is wrong. It should be put to rest in the Court’s pending case, Shelby County v. Holder, addressing the constitutionality of section five of the Voting Rights Act. The idea that federal legislation must treat states equally lacks support in constitutional text, history, or precedent, and it is particularly unfounded with respect to legislation, like section five of the VRA, that is based on Congress’s Fifteenth Amendment authority to enforce that Amendment’s prohibition on discriminatory denials of the right to vote.