The Twenty-Fourth Amendment

Poll taxes were an obvious blight to many members of Congress in the mid-twentieth century. But amending the Constitution requires great effort: securing a two-thirds majority in both Houses of Congress and ratification from three-fourths of the state legislatures. Even though poll taxes existed in just five states when the Twenty-Fourth Amendment was ratified, they drew enough ire from enough elected representatives to warrant a legal change.

But why a constitutional amendment rather than a statute? The ratification debates over the Twenty-Fourth Amendment revealed significant concerns in Congress about the scope of its own power to regulate elections. The original Constitution provides a patchwork quilt for congressional control over federal elections and essentially no control over state elections. The Reconstruction Amendments offered possible additional avenues to regulate elections, but Congress concluded it lacked sufficient evidentiary support to intervene. That meant only a constitutional amendment could eliminate poll taxes.

First, Congress likely lacked the ability to abolish poll taxes in congressional elections. The Constitution provides that the qualifications for voters in House elections are the same as the qualifications for voters in the state’s lower legislative chamber. (The Seventeenth Amendment would include a similar provision for Senate elections.) States provide the “Times, Places and Manner of holding Elections for Senators and Representatives,” but Congress may “make or alter such Regulations.”

Congress was unsure that it had the power to alter the qualifications for voters, which it believed were fixed by the States. In contrast, if the poll tax was simply a “manner” of holding elections, then Congress could regulate it through ordinary legislation. Poll tax opponents argued that qualifications largely related to fitness for voting (think age and residency restrictions) and that the poll tax was unrelated to fitness. If that were true, then poll taxes were a “manner” of election subject to federal regulation. A few even argued that Congress had the power to regulate qualifications. But the historical record suggested otherwise—poll taxes were qualifications firmly within the states’ domain.

Second, even if there were a plausible claim to regulate poll taxes in congressional elections, Congress’s power to regulate presidential elections was even more limited. State legislatures direct the appointment of presidential electors. Congress’s power is limited to “the Time of chusing the Electors, and the Day on which they shall give their Votes.” There is no requirement that states hold a popular vote to choose electors. And there is no express power to regulate presidential primaries.

That left the congressional regulation of poll taxes at the federal level even more complicated. While Congress had possible legal bases to regulate congressional elections if it could find the poll tax a “manner” of election, it lacked that for presidential elections.

Third, Congress assuredly lacked the power to regulate poll taxes in state elections. The Constitution provided that the United States shall guarantee each state a “Republican Form of Government,” but Congress doubted it could act pursuant to this provision to abolish poll taxes. It lacked any other identifiable basis under the original Constitution to do so.

Finally, Congress contemplated using its power under the Reconstruction Amendments, which extended power beyond the original Constitution. The Fourteenth Amendment prohibited States from denying to any person “the equal protection of the laws.” The Fifteenth Amendment guaranteed that the right to vote could not be denied on the basis of race, color, or previous condition of servitude. Congress had the power to enforce these Amendments through legislation.

But Congress did not believe it had a sufficient basis to enact legislation here, either. The poll tax extended to all voters equally, and Congress was not confident it could act simply because it had a disproportionate impact on poorer voters. Additionally, evidence gathered by Congress did not support a finding that the poll tax was inherently racially discriminatory. The Civil Rights Commission issued a report in 1961 and concluded that the poll tax did “not appear generally to be discriminatory upon the basis of race or color.” That limited Congress’s power to enact a statute.

In the end, Congress decided it needed a constitutional amendment to abolish poll taxes. The text of the Amendment expressly extended to congressional elections, the selection of presidential electors, and presidential primaries.

But it only extended to federal elections, a more modest effort to secure sufficient congressional support. Congress hoped that the Amendment would exert practical pressure on state elections—if states wanted to keep poll taxes for state elections, they would have to develop separate voter registration systems and maintain different ballots for federal and state elections. (This pressure had little effect—four states persisted in using poll taxes in state elections.)

Congress’s passage of the Voting Rights Act of 1965 would be a muscular exercise of its authority under the Reconstruction Amendments. Ample evidence of racial discrimination surrounding literacy tests led Congress to find them a prohibited device and forbid states from using them. But poll taxes were a more problematic target given the Civil Rights Commission’s findings. Section 10 of the Voting Rights Act included congressional findings that poll taxes “in some areas” had the purpose or effect of denying the right to vote on the basis of race or color. It authorized the Attorney General to initiate litigation for individualized determinations in federal courts as to whether existing poll taxes discriminated on the basis of race. Subsequently, the Attorney General began mounting such challenges.

The Supreme Court in 1966 struck down state poll taxes as an “irrational” burden on the right to vote. Harper v. Virginia Board of Elections. The previous agonizing legislative disputes—over the proper scope of federal power, over Congress’s ability to enact legislation, over the need to pass a constitutional amendment—may be forgotten. But they are a window into a process that occurred when voting rights were left primarily to the political domain, and to the complicated framework for regulating elections in our Constitution.

In Harman v. Forssenius (1965), the Supreme Court struck down a Virginia poll-tax statute under the Twenty-Fourth Amendment. And in Harper v. Virginia Board of Elections (1966), the Court held that the Fourteenth Amendment extended this prohibition to state elections as well, holding that fee-based voting qualifications are “capricious or irrelevant.” Today, we have seen a resurgence of laws that employ fee payments to restrict the right to vote. These laws do not impose a direct tax on voting, such as a fee to obtain a voter identification card, which would directly run afoul of the Twenty-Fourth Amendment. Instead, these laws create indirect economic burdens on the right to vote.

Consider laws that require a free voter identification card. What if obtaining the card requires securing documents, such as birth certificates, which require a fee to obtain? Or consider laws that permit early voting, weekend voting, and multiple polling places. Those laws make it easier for low-income voters to participate in the electoral process as compared to laws that require voters to travel long-distances to vote on a single Tuesday. The latter might require voters to lose time at work and therefore limit low-income citizens’ electoral participation. Another example: 48 states have laws that restrict voting—either permanently or temporarily—by convicted felons, preventing an estimated 6.1 million Americans from voting annually. A disproportionate number are people of color. In Hunter v. Underwood (1985), the Supreme Court held that such statutes are generally constitutional unless they are intentionally racially discriminatory. But what if a state restored voting rights to felons only if they paid a fine? 

Although federal courts have reviewed such statutes, since Harman and Harper they have not relied on the Twenty-Fourth Amendment in their review. For example, in Crawford v. Marion County Election Board (2008), the Supreme Court considered an Indiana statute requiring state-issued voter identification. The Court weighed the State’s interests in preventing voter fraud, maintaining confidence, and modernizing its elections system against the “minimal” burdens imposed by the requirement and upheld the law. The Court noted that Indiana provides free voter identification cards, and found that the effort required to obtain the card did not create an unconstitutional burden. The Court did not rely on the Twenty-Fourth Amendment, instead applying a Fourteenth Amendment Equal Protection Clause analysis using a framework it had established in cases such as Anderson v. Celebrezze (1983), rejecting Ohio’s early filing deadline for Presidential candidates, and Burdick v. Takushi (1992), upholding Hawaii’s prohibition on write-in votes. The plaintiffs in Crawford had not raised Twenty-Fourth Amendment claims.

Why haven’t courts and advocates made use of the Twenty-Fourth Amendment? Perhaps it is because of the robust protections offered by the Fourteenth Amendment and the Voting Rights Act, adopted pursuant to the Fifteenth Amendment. Section 5 of the Voting Rights Act had been a particularly potent tool. Under Section Five, certain jurisdictions with a history of racially discriminatory voting practices are required to seek preclearance from the Department of Justice or the federal district court in Washington D.C. before changing their electoral practices, giving them the burden of proving their proposed rule won’t hurt voters of color. However, in Shelby County v. Holder (2013), the Supreme Court invalidated the formula used to determine which jurisdictions are covered, rendering Section 5 impotent.

It is time to reconsider the Twenty-Fourth Amendment as a tool to ensure voting fairness. With the defanging of Section 5, and a Supreme Court that for decades has been less solicitous of racial discrimination claims generally, renewed attention to the Amendment could create new opportunities to protect the fundamental voting rights of our most vulnerable voters.

In considering this, it is important to remember that the Twenty-Fourth Amendment has a role distinct from those of the Fourteenth and Fifteenth Amendments, which were adopted to provide equal citizenship to the former slaves. Although the Twenty-Fourth Amendment was adopted during the Civil Rights Movement as a direct response to the use of poll taxes to undermine the rights of Black voters, arguably the Amendment is primarily concerned with wealth, not race.

When Americans think of the poll tax, we tend to focus on the laws adopted by Southern states as part of their successful efforts to disenfranchise Black voters during Jim Crow. But America also has a long history of wealth-based restrictions on the franchise. In Colonial America, every colony limited the franchise to white men who owned property or had sufficient income. Independence saw many of the new states adopt poll taxes as an alternative to property ownership. Arguably, this represented a step forward in liberalizing the franchise because you did not need to be a landowner to pay a poll tax. Throughout the eighteenth and early nineteenth centuries, most States continued to expand the white male franchise by abolishing even poll taxes.

When Southern States began re-introducing poll taxes as part of Jim Crow in the later part of the nineteenth century, beginning with Tennessee in 1870, their primary aim was to impede Black political progress. But many poll tax advocates wanted to disenfranchise poor whites as well. When the Twenty-Fourth Amendment was being considered nearly a century later, President Lyndon Johnson intentionally emphasized the economic justice aspects of the Amendment, rather than the racial ones. This was done in part to neutralize racist opposition. But it was also done because President Johnson and other advocates sincerely wanted to politically empower disenfranchised poor whites.

Thus, while the Twenty-Fourth Amendment shares a racial justice history with the Reconstruction Amendments, it is uniquely concerned with wealth-based impediments to the franchise. It is perhaps understandable that cases like Crawford give limited weight to the indirect financial costs of voter identification laws. After all, the Fourteenth Amendment gives no special scrutiny to wealth-based classifications. The Twenty-Fourth Amendment does. And even the Crawford Court made clear that the plaintiffs had failed in part because they offered no proof that securing a voter identification card particularly burdened indigent voters and kept them from the polls. Such evidence might open the door to a successful Twenty-Fourth Amendment challenge.

It is time to develop a Twenty-Fourth Amendment jurisprudence that protects the right to vote of low-income citizens.