On April 22, Virginia Gov. Terry McAuliffe issued a sweeping executive order that changed the lives of 200,000 ex-felons in Virginia, instantly restoring their right to vote. This order leaves only Kentucky, Florida and Iowa with blanket lifetime disenfranchisement policies for ex-felons. In these three states, no citizens convicted of a felony are allowed to vote, regardless of the crime committed, absent government-granted exceptions to the policy.

Governor McAuliffe’s act is a reminder that public support for giving ex-felons the right to vote after prison is significant, and growing—but this type of order doesn’t go far enough. Ex-felons should be able to vote, yes. But so should prisoners themselves.


To some, the idea may seem risky, unnecessary or even unconscionable. But in fact, there are good reasons to embrace it. For one, our constitutional ideals support the right of prisoners to vote, and denying it violates the concept of self-government that the founders cherished. Granting this right also makes sense for the country in terms of politics and policy. As prisons have grappled with the explosion in their populations in the past 20 years, allegations of prisoner maltreatment multiply, and criminal justice reform moves to the fore of our political debate, we should consider that one of the best ways to solve these intractable and expensive problems would be to listen to those currently incarcerated—and to allow them to represent themselves in our national political conversation.

In the United States, the debate about prison voting rights is virtually nonexistent. Only two states, Maine and Vermont, allow the practice. If anything, the movement has gone backward: Massachusetts and Utah both revoked this right in the past two decades. In Massachusetts, this occurred via state referendum after some state inmates organized a political action committee, setting off a harsh rebuke from the state’s governor, who stated, “Criminals behind bars have no business deciding who should govern the law-abiding citizens of the Commonwealth.”

Telling prisoners they cannot vote is premised on the idea that convicts undergo a sort of temporary “civic death”—a suspension of normal rights as citizens while they are behind bars. And indeed that was once true of prisoners in this country. But the federal government has made strides away from the notion of civic death over the past century. In recent years, the Supreme Court and Congress have affirmed a variety of constitutional rights for prisoners. They have rights of religious freedom under a 2000 federal law. Prisoners also retain some First Amendment free speech rights to hold and express political opinions. Most important, the Supreme Court decided that prisoners cannot have their citizenship stripped as a punishment for a crime. As Justice Earl Warren wrote in the 1958 case Trop v. Dulles: “Citizenship is not a right that expires upon misbehavior.”

Although he did not acknowledge this, Warren’s insight shows us why ex-felons deserve the right to vote: If prisoners remain citizens and retain their civic status throughout their sentences, then it follows that prisoners should enjoy the most basic of their civil rights, the right to cast a ballot. Disenfranchising them creates a class of people still subject to the laws of the United States (they were, after all, punished under that law) but without a voice in the way they’re governed—not unlike taxation without representation.

This also creates a kind of caste system, one that’s eerily similar to a dark chapter in our past. The vast majority of states prisoners cannot vote, yet they’re often counted in the population for the legislative district of their prison, the main factor that determines a state’s number of representatives and its presidential electoral votes. It’s a practice the NAACP calls “prison-based gerrymandering.” If that sounds familiar, it should: Such a policy resembles the Constitution’s notorious three-fifths clause, which denied slaves the right to vote but counted them in the Census for the purposes of amassing more pro-slavery representatives. (In some states, prisoners are counted in their home districts, which evens out the representation. But still, those prisoners are not voting for those representatives.)

Other advanced democracies are now recognizing the right of prisoners to vote. The European Court of Human Rights held in 2005 that Britain’s blanket ban on prisoner voting violated the democratic rights of its prisoners. The court reasoned that the government could punish citizens by revoking their liberty—but could not uniformly revoke the most central right of that citizenship, the vote.

American critics who scoff at Europe’s treatment of prisoners say that allowing prisoners to vote would literally be letting the inmates run the asylum. Far from it: Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.

We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.

How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.

Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.

Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.

Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”

Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison.

An additional counterargument might come from the left rather than the right wing of the political spectrum. Those on the left might charge that the creation of a prison constituency might take focus off the problems with mass incarceration itself, including the racial and other injustices of our current criminal justice system. But arguments for empowering a prison constituency are a structural way of addressing the concern that we imprison too many people. A prison constituency will not revoke unjust laws overnight, but it can allow those who are most affected by them and their sometimes unjust application to speak out against them.

The impact of prisoner voting is potentially transformative. Over 2 million Americans are in prison or jail, more than the population of Rhode Island. A sensible approach would be to count prisoners as part of their home districts and to allow them to vote there. This would respect the appropriate democratic parity between the right to vote and the weight of representation.

The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.

In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.