Constitution Daily

Smart conversation from the National Constitution Center

Interactive Constitution: The Twenty-Fourth Amendment

July 19, 2017 by Deborah Archer and Derek Muller

 

As part of the National Constitution Center’s Interactive Constitution project, leading scholars across the legal and philosophical spectrum find common ground on the Constitution’s articles, amendments and provisions. In this essay, Deborah N. Archer and Derek T. Muller look at how Congress passed the Twenty-Fourth Amendment in 1962, abolishing poll taxes in federal elections after years of failed efforts.

The Framers struck a bargain regarding the right to vote when they drafted the Constitution. The Constitution would not dictate the qualifications of voters—that matter would be left to the states. But the right to vote for members of the House of Representatives would be guaranteed to those eligible to vote for members of a state’s lower legislative chamber. In this way, the matter of voter qualifications was principally left to state discretion.

At the time the Constitution was ratified, many states limited the right to vote to property owners. States wanted a sufficiently interested electorate, and they believed that property owners were not only the most interested, but also had the most at stake in the outcome of an election.

Some states moved away from property ownership as a voting qualification and instead required that voters pay a tax, often known as a “poll tax.” Poll taxes initially expanded the right to vote, because far more citizens could pay a tax than establish sufficient property ownership. Also, taxpayers could be considered part of an interested electorate, as the government directed where and how their tax dollars would be used and what taxes would be levied.

By the mid-nineteenth century, most states had abandoned property requirements or poll taxes as limitations on the franchise and extended the right to vote to all free white men. With the adoption of the Fifteenth Amendment to the Constitution, the federal government legally extended the franchise to all men regardless of race, color, or previous condition of servitude.

After nearly disappearing in the states, a repurposed poll tax returned as part of a successful effort to undermine the Fifteenth Amendment and reestablish limits on the franchise. Beginning in Florida in 1889, all the former Confederate States, and a few others, instituted a suite of changes to voting laws as a part of this effort. They introduced literacy tests and disqualified convicted felons from voting. They also resurrected poll taxes. The historical record is filled with racially derogatory statements from delegates at State constitutional conventions who believed poll taxes and other devices would suppress Black voter registration and turnout.

Their efforts succeeded. Together, these changes resulted in significant declines in voter turnout and registration, particularly among eligible Black voters. But poll taxes would burden many poor white voters, too, creating a fairly significant economically disparate impact. Even though the poll taxes were usually nominal, often just $1 or $2, that was a fairly measurable sum for poorer voters of that era—the equivalent of $20 to $40 today.

Poll taxes were even more burdensome due to their administration. Many states made poll taxes cumulative: voters needed to pay the tax for this election and every previous year they had failed to pay taxes. A $1 tax could quickly balloon to more than $40 in overdue taxes. Some jurisdictions required payment many months before the election. And others required voters to offer a receipt on Election Day as proof of payment, an additional hurdle.

The Supreme Court repeatedly affirmed the constitutionality of poll taxes. In its 1937 opinion in Breedlove v. Suttles, the Supreme Court unanimously rejected a claim from a white Georgia voter that the poll tax violated the Equal Protection Clause. In 1951, it rejected a similar claim challenging Virginia’s poll tax in Butler v. Thompson.

By 1962, most states had abandoned poll taxes, but they remained in effect in five: Alabama, Arkansas, Mississippi, Texas, and Virginia. Even there, the states had eased the rules somewhat, such as limiting the cumulative effect of poll taxes. But that year, as the Civil Rights Movement gained traction, President John F. Kennedy endorsed eliminating both poll taxes and literacy tests in his State of the Union address.

After years of failed efforts and through some aggressive procedural wrangling, Congress passed the Twenty-Fourth Amendment in 1962, abolishing poll taxes in federal elections. The debates in Congress reflected two major themes.

First, Congress believed it needed to pass an amendment rather than a statute. Members argued that voter qualifications were an area exclusively reserved to the states, necessitating a constitutional amendment. They further noted that the evidence of the impact on Black voters was not so disproportionate relative to white voters that Congress would have power to abolish poll taxes under the Fifteenth Amendment.

Second, the Amendment only extended to federal elections. Poll taxes would still be permitted in state and local elections. The Amendment had difficulty securing support in Congress in the past, and this language was a concession to states’ rights advocates. It was an attempt to secure sufficient support to pass both Houses, a bargain that was ultimately successful.

The Amendment was quickly adopted by the required three-fourths of the states and took effect in 1964, but not without resistance. Virginia attempted to circumvent this Amendment with a new version of the poll tax. The new Virginia law offered voters a choice: pay the tax, or file a notarized or witnessed certificate of residence at least six months before each election. In a unanimous decision, the Supreme Court in Harman v. Forssenius (1965) concluded that the new law contravened the Twenty-Fourth Amendment. The certificate requirement placed a material burden exclusively on those who refused “to surrender their constitutional right to vote in federal elections without paying a poll tax.” In 1966, in Harper v. Virginia Board of Elections, the Supreme Court would find that poll taxes in all state and local elections were prohibited under the Equal Protection Clause.

While the Twenty-Fourth Amendment has had little direct impact since the abolition of poll taxes and the Court’s ruling in Harper, its legacy lingers in contemporary litigation surrounding voting rights. Indirect costs on voting such as the cost of obtaining documents to comply with voter identification laws, or the requirement that ex-felons pay prison debt before they are eligible to register to vote, have been unsuccessfully challenged—at least so far—as poll taxes.

Deborah N. Archer is Professor of Law and Co-Director of the Impact Center for Public Interest Law at New York Law School. Derek T. Muller is Associate Professor of Law at Pepperdine University School of Law.

For further discussion between Archer and Muller on the Twenty-Fourth Amendment, read the following Matters Of Debate:

The Role Of The Twenty-Fourth Amendment In Challenging Financial Burdens On The Right To Vote By Deborah N. Archer

Federal Power Over Elections And The Twenty-Fourth Amendment By Derek T. Muller

 

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