Dan Katz has posted this draft on SSRN (forthcoming Journal of Law and Social Change). Here is the abstract:

In the face of the collective failure of more than thirty years of constitutional and statutory based felon disenfranchisement litigation some have recently concluded a judicial based restoration strategy should be abandoned in favor of appeal to legislative authorities. This article attempts to save the litigation based approach by advancing a new analysis, arguing why the VRA could serve as the mechanism to invalidate disenfranchisement statutes for at least the Congressional portion of the ballot. Rather than predicate the reach of the VRA upon the reach of enabling provisions of the Fourteenth and Fifteenth Amendments, the article narrowly focuses upon the fusion of Congress’ power under Article I, Section 4 of the Constitution and its passage of the 1982 amendments to Section 2 of the VRA. Current legal challenges have ignored Article I, Section 4, an authority cited by the framers of the VRA. It is the contention of this article that Article I Section 4 should no longer be overlooked as it is this Constitutional provision which allows the VRA to reach felon disenfranchisement. Part I of this article steps back and considers various powers Congress could employ to implement a statute aimed at preventing felon disenfranchisement. These authorities include the Fourteenth Amendment, Fifteenth Amendment, and Article I, Section 4 of the United States Constitution. Next, it demonstrates significant limitations inherent in using the enabling provisions of the Reconstruction Amendments as the basis for federal legislation. Part I concludes with emphasis upon Congress’ Article I, Section 4 power and argues pursuant to long line of Supreme Court precedents, including Justice Black’s opinion in Oregon v. Mitchell, Congress has the unambiguous constitutional authority to pass a statute which enfranchises felons for the Congressional portion of the election ballot. Part II reviews the history of the Voting Rights Act and argues the 1982 amendments to Section 2 of the VRA allow that statute to reach felon disenfranchisement laws. Namely, the amended VRA’s invocation of Article I, Section 4 as a basis of authority to craft the wide-reaching totality of circumstances standard, immunizes this portion of the inquiry from the forms of challenges that have doomed prior VRA cases. Simply put, the fusion of the Article I, Section 4 enabling power, added to the language of Section 2 of the VRA, side steps the plain statement doctrine thus allowing Section 2 to reach state schemes that deny felons the Congressional franchise. Part III carries forward this fused theory arguing that it is statutes that impose lifetime disenfranchisement on all felons that are per se violative of the totality of the circumstances test. The article concludes with a brief review of the empirical scholarship in order to describe the important impacts upon political outcomes that could follow from the Congressional franchise restoration argued for herein.