Bernie Sanders’ proposal to enfranchise the 1.5 million or so incarcerated felons struck most as just another of the senator’s wacky progressive proposals. | Paul Sancya/AP Photo FOURTH ESTATE Bernie Sanders Is Right. We Should Let Prisoners Vote. You don’t have to be a socialist to think he’s on to something.

Jack Shafer is Politico’s senior media writer.

Bernie Sanders spritzed an ocean of contrarian stink into the air on Monday night’s CNN town hall when he said imprisoned felons should be allowed to vote.

Most states already deny 6.1 million ex-cons the vote, so Sanders’ proposal—which he also laid out in a Fox News town hall a week earlier—to enfranchise the 1.5 million or so currently incarcerated felons (muggers, rapists, murderers, drug dealers and users, car thieves, bank robbers, burglars, et al.) struck most as just another of the senator’s wacky progressive proposals. Republicans have accepted Sanders’ comments as a political gift in-kind. The Republican National Committee issued a statement denouncing him for wanting “convicted terrorists, sex offenders, and murderers to vote from prison.” Senator Lindsey Graham (R-S.C.) tweeted his umbrage and ripped Sanders for wanting to give the vote to the Boston bomber, Dzhokhar Tsarnaev, and Charleston mass murderer Dylann Roof. Senator Cory Gardner (R-Colo.), tweeted that Democrats wanted to give the vote to inmates of the Supermax prison in his state.


Even Pete Buttigieg dinged Sanders and advocated the re-enfranchisement of felons who have served their time, but not active prisoners. “Part of the punishment when you are convicted of a crime and you’re incarcerated is you lose certain rights; you lose your freedom,” Buttigieg said during his CNN town hall, a couple hours after Sanders went on air. “And I think during that period, it does not make sense to have an exception for the right to vote.” In between the slow-motion Sanders-Buttigieg debate on CNN, Kamala Harris dodged the controversy, saying only that we should have a “conversation” about prisoner voting.

But for all their outrage, Sanders’ critics seemed clueless about the history and practice of barring prisoners from voting. As Sanders pointed out in the town hall, the Constitution of his state, Vermont, has enfranchised prisoners from the beginning without any deleterious political or social effects. Maine, too, lets prisoners cast a ballot from their cells no matter what offense they committed. And since 2016, California has allowed convicted felons serving time in county jail to vote.

When and why did we start taking voter rights from prisoners and ex-cons? Law scholars tell us that forfeiture of the vote was just one of the punishments exacted upon English convicts under the concept of “civil death.” Voting was considered a sacred right that could go only to the law-abiding (and only to the property-owning law abiders, for that matter). In England, convicts could lose their property to the king, their rights to inherit property and their rights to bring suit. Their marriages could be dissolved. In the eyes of English law, convicts were dead, and seeing as dead men can’t vote, they were banned from the ballot booth.

The colonists brought civil death to the United States but steadily abandoned many of the graver penalties associated with the tradition. Still, in many states, besides losing his right to vote, a convicted felon cannot run for elected office after leaving prison. He cannot serve on a jury. He cannot become a police officer or join the military. He cannot obtain a government license to work in some professions. He is the walking civic dead.

The idea that voting should be a privilege limited to white, landowning males has given way over the decades to a rights-based notion, one that eventually brought suffrage to renters, women, and African Americans. Many states have re-enfranchised ex-cons, most recently Florida, but prisoners have been largely excluded from this movement. State after state continues to punish convicts with civil death. It’s not that the courts and legislatures ever said prisoners had no rights under the law. To the contrary, the government concedes that prisoners have a right of access to the courts and protection from cruel and unusual punishment, as well as standard First Amendment rights. (Also, under the Constitution, a prisoner can legally run for Congress, although the Senate or House can decide not to seat him.)

While it would be impossible to run a prison in which prisoners had the usual rights against unreasonable search and seizure, is there any practical advantage to seizing the inmate vote? One scholar points out the inherent injustice in the practice, noting that it’s an automatic punishment meted out to convicts that cannot be tempered or suspended by a judge. It’s a draconian, one-size-fits-all penalty that gives judges no wiggle room to accommodate justice. To those who argue that the threat of disenfranchisement is a solid deterrent against crime, we can only laugh. How many aspiring crooks thought, or even knew, that they’d lose their right to vote before committing their last crime? Damn few, I’ll bet.

Somebody somewhere might harbor the comic-book fear that we shouldn’t give prisoners the vote because they’ll vote as a bloc and dominate politics in the rural towns where most prisons stand. But that critique doesn’t endure scrutiny. In Vermont, inmates must register to vote using their last legal address and then cast absentee ballots, thereby dispersing their votes around the state.

What good would come of passing the laws or constitutional amendments that would enfranchise all inmates—at least the ones who are American citizens over the age of 18? If you believe that incarceration exists to rehabilitate the wayward and reintegrate them into society, you’ll probably warm to the idea of giving them the vote. Anything within reason to socialize the anti-social and encourage civic participation! Sanders, however, did not reach for utilitarian arguments in making his stand. Waving the banner of idealism, he defended the rights of prisoners to vote as an “inherent American right to participate in our democracy.”

You don’t have to be a socialist to throw in with Sanders and the Vermont Constitution on this go-round. The civic death sentence we impose on prisoners is ripe for repeal.

******

Civic Death would be a good band name. Send others via email to [email protected]. My email alert votes both in its home district and its vacation district. My Twitter feed sells its vote to the highest bidder. My RSS feed says, “A pox on democracy.”