Congress should give felons the right to vote in federal elections

The House of Representatives recently passed a bill promising vast improvements to our current meager systems for the protection of voting rights and the elimination of political corruption. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Mueller report is a deterrent to government service Senate Republicans tested on Trump support after Mueller Anti-smoking advocates question industry motives for backing higher purchasing age MORE declared that the bill would never have a vote in his chamber. It is not hard to see why, as it is mostly Democrats whose votes are suppressed and who are harmed by political corruption. But the bill contains a measure which the House ought to pass separately, giving the Senate a chance to turn it into law. The measure would force all 50 states to let their felons vote in federal elections. In fact, Republicans stand to benefit as much from this proposed provision as Democrats do.

Felon enfranchisement is essential to the democratic legitimacy of criminal punishment. One of the most powerful arguments for lowering the federal voting age from 21 to 18 derived from the fact that those over 18 were, at the time, eligible for the draft despite being denied the vote. We recoil at the idea of being sent to war by a government whose behavior one has no entitlement to influence. The disenfranchised conscript has no ownership over the decision to fight and to kill. By contrast, the decision to send the enfranchised soldier to war was made by a collective whose behavior is the product of voices that include his.

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Criminal punishment is not so different from the draft. To be drafted is to be forcibly used to produce the essential social good of peace. To be imprisoned is to be forcibly used to produce the different but equally essential social good of security. The legitimacy of our practices of using others in this way and using, especially, 18 to 21 year old men, depends crucially on the idea that those who are put to service have a say over the behavior of the government who demands it of them. It is thanks to enfranchisement that this is not just slavery.

This means that when we punish the disenfranchised, we sit on shaky philosophical ground. This is the shaky ground we stand on when we deny a felon the right to vote and then punish him for crimes he commits after release. The punishment for the second offense is no more legitimate that the involuntary conscription of those who do not have the right to vote. We can achieve peace by sending the disenfranchised to war, and we can achieve security by punishing disenfranchised recidivists. But we should do neither of these things. Both are in conflict with democratic values. We should instead achieve peace and security only by putting to work those who have a say over the law through the right to vote.

Principled considerations of this kind should not be partisan. They derive from basic social contract principles of a kind that both Democrats and Republicans claim to embrace. But there is no self interested political reason for Republicans to fear felon enfranchisement. A growing body of work in the social sciences demonstrates that enfranchised felons are less likely to commit additional crimes than the disenfranchised.

With the franchise comes a sense for many felons that the law abiding community is their community. It creates a sense of ownership over the law along with a strong source of motivation to obey the law. With less recidivism comes less incarceration. We should all embrace this extremely inexpensive way to lower crime. To lower the amount of incarceration we impose is to shrink one of the largest social programs currently supported by our tax dollars. No Republican should oppose that.

Furthermore, there is no reason to think that felons are more likely to support Democrats than Republicans. Even on the issue of crime control, their opinions vary enormously and they are not easy to classify as Democrats or Republicans. They are not a homogenous group in their political opinions and preferences. In fact, it is easy to find pairs of states that differ radically in their partisan tilt, and grant exactly the same voting rights to felons. The laws of felon enfranchisement in California and Louisiana, for instance, are very similar to one another, as are those in Hawaii and Utah. The attitude of a state towards the enfranchisement of its felons tells us next to nothing about the degree to which it leans Democrat or Republican in its federal voting record.

By including felon enfranchisement in a bill with many different aspects, House Democrats made it easy for McConnell to refuse to bring it to a vote in the Senate. The bill they passed contains many provisions that Republicans will be united in opposing. But if the House were to pass a clean bill that did nothing but enfranchise felons, perhaps there would be room for support from Senate Republicans. Perhaps they would stand up to leadership and demand that, for this, they should be allowed to vote.

Gideon Yaffe is the Wesley Newcomb Hohfield professor of jurisprudence and a professor of philosophy at Yale University. He is the author of “The Age of Culpability: Children and the Nature of Criminal Responsibility.”