Inmates can’t vote. So why can they run for Congress?

When former Rep. James Traficant was carted off to jail last week after his conviction on multiple felonies, he told the judge that he expects to be re-elected from his jail cell. As Explainer noted back in April, as an inmate the former Ohio rep will be in a strange position—free to run for federal office, but prohibited from voting. Why do states let inmates run but not vote?

In fact, every state in the Union allows its inmates to run but not vote, except for Maine and Vermont, which allow them to do both. This strange setup exists because Supreme Court precedentsays states can’t prohibit inmates from running but can disenfranchise them.

In a 1974 case, Richardson v. Ramirez, the Supreme Court upheld a California law disenfranchising felons. The court based its argument on Section 2 of the 14th Amendment, which was supposed to create an incentive for Southern states to let blacks vote. The amendment reduced the number of representatives allotted to states that denied the vote to any male inhabitants “except for participation in rebellion, or other crime”—a phrase that the majority found justifies disenfranchising felons.

A ruling in a 1995 term-limits case U.S. Term Limits, Inc. v. Thorntongave inmates the freedom to run for Congress. The Court invalidated an Arkansas term-limits amendment, arguing that the qualifications for membership in Congress listed in Article I of the Constitution were intended to be the full qualifications, and neither Congress itself nor the states can fiddle with them. Justice ClarenceThomas noted in his dissent that the majority’s ruling meant that states couldn’t disqualify prisoners from running.

One argument for the current setup: Taking away the right to vote punishes only the inmate, whereas, if we want him in office, taking away his right to run punishes all of us.

Next question?

Explainer thanks Akhil Amar of Yale Law School, Vikram Amar of the University of California’s Hastings College of the Law, and the Sentencing Project.