Bernie Sanders’s plan to give a terrorist killer the right to vote fails on many fronts

Bernie Sanders’s plan to give a terrorist killer the right to vote fails on many fronts
MSNBC video

Senator Bernie Sanders recently said that the Boston bomber Dzhokhar Tsarnaev should be allowed to vote. In a premeditated act of terror during the 2013 Boston Marathon, Tsarnaev and his late brother killed three people and injured several hundred others, including 16 people who lost limbs. Sanders thinks that even the most violent, currently-imprisoned felons such as murderers and rapists, should be allowed to vote.

Sanders wants to change the law about who can vote. In 48 of 50 states, criminals who are currently imprisoned cannot vote. Some states disenfranchise felons for life even after they leave prison, a practice expressly permitted by the Constitution. Section 2 of the Fourteenth Amendment recognizes that the right to vote can be taken away based on past “participation in rebellion, or other crime.”

People have to be qualified to vote. As a result, states historically denied the vote to children, non-citizens, felons, and the mentally incompetent — even though those classes of people have other rights, like the right to free speech. (For example, the Supreme Court has ruled that children have the right to free speech in its rulings in Tinker v. Des Moines and McConnell v. FEC).

Sanders failed to explain why felons are any more deserving of the right to vote than other classes of people who can’t vote, like people who are 16 or 17 years old. A felon has shown bad judgment in violating the law. By contrast, a 16-year-old honor student has exhibited good judgment but still can’t vote, even if she has exhibited other signs of growing maturity, like getting a driver’s license. A 17-year-old who has a part-time job and has tax withheld from her paycheck contributes much more to society than a felon who lives at taxpayer expense in a prison. Yet an academically gifted high school student cannot vote, even if she is the president of her student government. My wife could not vote, despite paying taxes, in the years she was legally in America waiting for her U.S. citizenship.

Roger Clegg of the Center for Equal Opportunity opposes giving felons the right to vote, arguing that lawbreakers should not be lawmakers. As he observes, voters make law directly when they vote on ballot measures and indirectly when they elect lawmakers and government officials. People who commit serious crimes against their fellow citizens do not qualify for this role, he says.

A progressive vice president of a think-tank defended Sanders’ position by saying, “I think voting should be a right of citizenship. To me, if you act like it’s a genius gotcha to note that this means murderers get to vote, that just makes me wonder why you think felons shouldn’t be stripped of citizenship and it’s basic protections.” But this argument fails, because children are citizens, and they can’t vote. Moreover, the whole point of imprisonment is to deprive people of certain rights of citizenship as punishment for wrongdoing. Prisoners give up the right to freedom of movement that is the most essential liberty of all, in the eyes of the framers of the Thirteenth Amendment. Prisoners and people on parole also give up their Fourth Amendment right to be free of warrantless searches.

A journalist for a publication that advocates more lenient sentences for violent criminals also attempted to defend Sanders’ position. He argued that prisoners should be allowed to vote because “they’re already paying their debt to society by being incarcerated.” But violent crimes harm their victims, not just “society,” and criminals seldom pay their debt to their victims (they also routinely fail to pay the fees or fines owed to the state as part of their sentence, in some cases due to poverty).

Being incarcerated costs society money — including the victims of crime, who pay for prisons with their tax dollars — and does not undo the harm committed by a violent criminal. Moreover, the Boston bomber has not paid the medical bills of the hundreds of people wounded by his bombing, or paid for prosthetic limbs for the 16 people who lost limbs due to his bombs. Incarceration is a necessary deterrent to crime (especially because most criminals have too little money saved up to compensate their victims), and often a necessary way of keeping a criminal from committing even more crimes, but it does not undo the harm the criminal has already committed.

The pro-defendant journalist also argued that prisoners, like other people, are affected by government policies, and thus should have a say in them by helping choose the officials who enact those policies. But this argument fails because it proves too much. Children are affected even more than adults by many government policies, such as education policy and the national debt. Yet, children can’t vote, because they are viewed as having less good judgment, on average, than adults. That is true even though, as President Herbert Hoover once noted, the young “will inherit the national debt.”

Non-citizen immigrants are affected by our elected officials’ immigration policies far more than citizens are, yet they cannot vote, either, even when they are lawfully present in America and have jobs and pay taxes here, meaning that they are as affected by America’s tax and fiscal policies as any citizen. Being affected by government policies does not give people the right to vote on them. If it did, the whole world could vote in American elections, because the economy of the whole world is affected by U.S. policies on international trade, and many countries receive foreign aid from the U.S. government. America’s Smoot-Hawley Tariff helped plunge the world into the Great Depression.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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