“The Democracy Restoration Act would restore voting rights for released felons in federal elections only. In states where eligibility doesn’t kick in during probation or parole, the voter would only be able to fill out a federal ballot, said Patrick Berry, counsel at the left-leaning Brennan Center for Justice.”
There is an issue concerning the constitutionality of this proposed legislation, given the Supreme Court’s decision in Richardson v. Ramirez interpreting section 2 of the Fourteenth Amendment. There’s an argument that Congress would be trying to enact the law pursuant to its power to enforce the Fifteenth Amendment on the ground that felon disenfranchisement has a demonstrably discriminatory effect based on race. But it seems difficult to see (at least for me) how that argument would survive the Supreme Court’s invocation of its reasoning in Shelby County v. Holder, which (whether one likes it or not) curtails the capacity of Congress to legislate expansively to enforce the Fifteenth Amendment. Insofar as violations of the Fifteenth Amendment require intentional discrimination based on race, and insofar as the theory of this statute is to stop felon disenfranchisement laws that have a discriminatory effect based on race (without proof of the state’s intentional discrimination), this statute might have difficulty in the current Supreme Court.
Separately, Congress has the power under Article I, section 4 to regulate the “time, places, and manner” of congressional elections, but this power does not extend to determine who is eligible to vote in congressional elections. The Court confirmed this how-versus-who distinction in Arizona v. Inter Tribal Council.
Perhaps there is a constitutional argument or analysis that I’m missing. Having students evaluate the relevant constitutional issues would be a good exam question in an Election Law class, I think. But I’m not sure that limiting the scope of this statute to federal elections helps its constitutionality. By the way, the power of Congress to regulate the “time, places, and manner” of congressional elections under Article I does not extend to presidential elections under Article II. From the perspective of federal constitutional law, I’m not sure there is a difference between presidential and gubernatorial elections concerning which legislature–Congress or a estate’s–has the authority to eliminate felon disenfranchisement. (To be clear, as a policy matter, I’m adamantly opposed to felon disenfranchisement for multiple reasons, including its blatant racially discriminatory effect. But the policy issue is different, at least in my mind, to the constitutional question concerning congressional power.)