an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Paying for Ballots: Reviving the Poll-Tax Amendment
Bruce Ackerman Jennifer Nou
When Attorney General Eric Holder called Texas’ voter ID law a “poll tax” during the NAACP conference last week, he was right to recall a civil-rights-era constitutional amendment fit for the occasion. In 1964, the American people enacted the 24th Amendment, forbidding "any poll tax or other tax" in federal elections. As we argue in Sunday’s Los Angeles Times, Texas’ new photo I.D. law flatly violates this provision.
Texans without IDs must travel as much as a hundred miles to a driver's license office and submit appropriate documents, along with their fingerprints, to establish their qualifications. If they don't have the required papers, they must pay $22 for a copy of their birth certificate. If they can't come up with the money, they can't vote. But the 24th Amendment denies states the power to create such a financial barrier to the ballot box.
We elaborate on the infirmities of the Texas law in our op-ed, and use this post to put the problem in broader constitutional context. A key issue involves the precedential significance of the Supreme Court’s 2008 decision in Crawford v. Marion County, which Texas cites in support of its initiative. In upholding Indiana’s photo I.D. law, Crawford entirely ignored the 24th Amendment. As we noted at the time, the Court wrongly supposed that the Equal Protection Clause provided the exclusive framework for analysis, likely led astray by parties that did not squarely present or brief the issue. Announcing the Court’s judgment, Justice Stevens balanced the state’s interests against the limitations imposed by Indiana and found them constitutional. Although the 24th amendment argument was developed in an amicus brief, none of the opinions took it seriously.
This is symptomatic of an indefensible act of constitutional erasure, whose roots we explore in the Northwestern University Law Review. After the amendment’s ratification, Harper v. Virginia sought to extend its ban on federal election taxes to state contests as well. In an unpublished opinion, Justice Arthur Goldberg relied heavily on the 24th Amendment in urging his colleagues to strike down the remaining state poll taxes. But by the time the case was ready for final decision, Lyndon Johnson had persuaded Goldberg to leave the court and serve as ambassador to the United Nations. Justice Douglas then took the lead in opinion-writing and proceeded to erase all mention of the poll-tax amendment from Harper, despite the government’s brief emphasizing the amendment’s importance.
Attorney General Holder is right in urging us to move beyond Douglas’ sloppy opinion and to restore the 24th amendment to its proper place in our constitutional order. Texas is only one of eleven states that have passed restrictive I.D. legislation over the past two years. All of them raise serious 24th amendment questions, and unlike Texas, most aren’t subject to the special pre-clearance procedures under Section 5 of the Voting Rights Act. Regardless of the outcome of the Texas case, there is a large role for a new round of 24th Amendment challenges to the recent wave of restrictive legislation.
The Justice Department is already empowered under section 10(b) of the Voting Rights Act to file suits “against the enforcement of any requirement of the payment of a poll tax as a precondition to voting,” or any “substitute” that imposes a similar financial burden. The Supreme Court has found a private right of action under this provision as well. Lawyers have all the tools they need to present a fundamental question to the Court: Will it preserve a solemn constitutional commitment to end, once and for all, financial barriers to the right to vote? Or will it allow this great achievement of the civil rights generation to disappear once again into the legal shadows? Posted
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