Those who affect to differentiate Trump from the Republican Party are fools selling liberty for one more cozy consensus between the rulers and those who lick their boots. Nothing tells the story quite so clearly as the history of voting rights in America, or, more accurately, the history of voter repression in America and the resistance to it. -- blj
United States Constitution
Proposed by Congress to the states on August 27, 1962, and was ratified by the states on January 23, 1964.
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation. -- Wikipedia, https://en.wikipedia.org/wiki/Twenty-fourth_Amendment_to_the_United_Stat...
North Carolina's 'partisan gerrymander' could prompt supreme court action
Bombshell ruling commands Republican-led state to draw electoral maps fair to Democratic voters and fuels expectations highest court will set new standard
The last time North Carolina Republicans redrew the state’s 13 congressional districts, they made absolutely no secret of their ambition to rig the system and lock in a 10-3 balance in their favour – regardless of whether they or the Democrats won a majority of the votes in future elections.
“I think electing Republicans is better than electing Democrats,” bragged the chair of the redistricting committee in the state general assembly, David Lewis. “So I drew this map to help foster what I think is better for the country.”
Drastic improvements in mapping technologies and voter information databases meant specialist mapmakers had unprecedented power to manipulate political outcomes, even in a swing state like North Carolina where one would ordinarily expect to see US House and state legislative seats split more or less evenly between the two parties.
The instruction from Lewis and his colleagues, according to court documents, was “to create as many districts as possible in which GOP candidates would be able to successfully compete for office”.
That was in 2016, when the prevailing wisdom across the US was that partisan gerrymandering was one of the legitimate spoils of American politics. Up to that point, the courts had punished gerrymandering along racial lines – one North Carolina map from the 1990s that packed black voters into the fewest possible districts was memorably likened to “political apartheid” – but raised little or no objection to state maps that favored one party over another.
That may be about to change dramatically, in the wake of a bombshell ruling from a federal court in North Carolina last week that found the 2016 redistricting plan to be a violation of both the constitution’s equal protection clause and an infringement on the free speech of voters who cannot meaningfully cast a ballot if the outcome is all but predetermined.
The court ordered the legislature to come up with new, fairer maps within two weeks and said if they did not, a court-appointed expert would redraw the maps for them.
The ruling, most of it supported unanimously by two liberal justices and one conservative, was widely seen as breaking new legal ground and could – if it is not stayed or overturned – make it significantly easier for the Democrats to retake control of the House of Representatives in this November’s midterm elections.
The ruling also picked up on a growing disquiet among justices on the US supreme court, who have questioned whether the political system is sustainable without the core principle that “voters should choose their representatives, not the other way around”.
The supreme court is already considering two partisan gerrymandering cases – one from Wisconsin (run by Republicans) and one from Maryland (run by Democrats). It now seems likely that the North Carolina case will be included in the court’s deliberations and that a new overarching standard for drawing district boundaries will emerge before the court’s term ends in June.
“This is the first time ever that a congressional districting plan has been struck down as partisan gerrymander,” one of the plaintiff’s attorneys, Ruth Greenwood of the Campaign Legal Center, told the Guardian.
“If we are able to keep that precedent, it could be applied to half a dozen other states.”
Not everyone gerrymanders. In the complex patchwork of America’s political landscape, there are states that delegate redistricting to independent commissions and states where one party is so dominant there is no incentive to gerrymander.
Some of the worst offenders, however, are also some of the most important states in presidential elections – among them Wisconsin, North Carolina, Florida and Pennsylvania – which often hold the key to control of the House of Representatives too.
Supreme court chief justice John Roberts leads a panel interested in – but divided on – gerrymandering cases. Photograph: Evan Vucci/AP
Several times over the past 20 years, the Democrats have won more votes for House seats than the Republicans but ended up in the minority. The same has been true of state legislatures – most recently in Virginia, where the Democrats beat the GOP by 9% in races for the state House of Delegates in 2016 but won only 49 of 100 seats.
While other factors have played a role – most notably, the clustering of Democrats in urban districts, leading to a more inefficient distribution of their votes – gerrymandering has effectively received a turbo boost because of digital mapping technologies and significantly altered both the political and the legal landscape.
Justice Anthony Kennedy, expected to be the swing vote on the supreme court, has been open since at least 2004 to the idea that partisan gerrymandering could one day become so sophisticated as to be constitutionally intolerable.
And while some of his colleagues appear hostile to statistical analyses measuring the precise extent of partisan interference in district mapping – chief justice John Roberts called such analyses “sociological gobbledegook” when the Wisconsin case came up for oral argument in October – the North Carolina case presents a welter of new evidence and legal arguments to consider.
“North Carolina may present a set of facts that give the supreme court the hook they are looking for,” another of the plaintiff’s lawyers, Kathay Feng of Common Cause, told the Guardian.
It is also helpful that Maryland is in the mix, because it means there are plaintiffs from both major parties and the supreme court is at least partly insulated from the charge that they are responding to complaints from partisan sore losers.
“Justice Kennedy cares a lot about the court’s role in upholding a standard of laws that is not seen as tipping the scales in favor of one party or another,” Feng said.
Many questions remain about timing. The North Carolina state legislature was widely expected to appeal last week’s ruling but did not do so immediately. It is also unclear, even if the supreme court issues new standards, if these would impact the 2018 midterms or would be held over for enforcement until 2020.
Trump's 'voter fraud' commission is dead -- but activists fear new DHS push
Donald Trump’s quixotic year-long quest to prove the 2016 election was marred by millions of fraudulent votes has become, in the words of White House insiders, a “shit show” that appears unlikely to fare much better now the effort is shifting from a widely loathed presidential commission to the Department of Homeland Security (DHS).
Voting rights activists rejoiced this week when the White House announced it was abandoning the eight-month-old Presidential Advisory Commission on Election Integrity, a body run by some of the country’s most notorious advocates of voter suppression.
Such activists remained concerned the administration could still find ways to constrict ballot access for new citizens and other minority groups through the DHS immigration enforcement arm.
It is not clear, however, that the DHS has either the resources or the will to conduct a wide-scale investigation into voter eligibility when it is fully stretched implementing the administration’s broader goal of rounding up and deporting as many undocumented immigrants as possible.
The DHS itself said it was committed to continuing to work with states on improving cybersecurity around election machinery and voter databases, but made a point of distancing itself from Trump’s point man on election matters, the Kansas secretary of state and outgoing vice-chair of the presidential commission, Kris Kobach.
“Kris Kobach will not be advising us on this matter,” the DHS said in an apparent refutation of Kobach’s own public statements.
Kobach told one interviewer he expected the DHS to match state voter rolls to its own records on migrant non-citizens in an effort to weed out fraudulent voters – something Kobach has advocated for many years, despite being told repeatedlythat the DHS database of immigrant enrollees in federal benefits programs is wholly unsuited to assessing voter eligibility and does not track citizenship at all.
Kobach also argued that the DHS could move more efficiently than the presidential commission and that Democrats and others who opposed the commission’s work and filed lawsuits to force greater transparency had scored an own goal.
“Anyone on the left needs to realize that by throwing food in the air they just lost a seat at the table,” he told Politico.
Kobach’s position, however, appeared to be a lonely one. Even the president’s own staff members have privately expressed exasperation with the way he ran the commission. Experts on federal bureaucracy pointed out that the DHS would, if anything, have a greater obligation to transparency than the commission did under the federal Privacy Act – not to mention congressional oversight and opportunities for public comment.
“With the commission, Kobach effectively jumped on a live grenade that he himself pulled the pin on. Most people don’t want to be the second person to jump on the same grenade,” Justin Levitt, an Obama-era justice department official and voting rights expert, told the Guardian.
“Having seen the disaster that is the Kris Kobach show, it’s not clear DHS is going to be eager to follow him.”
Trump’s commission ran into trouble from the start, as a broad-ranging request for voter information – including details of military service that are usually considered confidential for security reasons, and even party affiliation – hit a wall of bipartisan resistance from state election officials and a warning from a former DHS chief that the data, if collected, could pose a cybersecurity risk.
Critics pointed out that Trump’s assertion of widespread fraud appeared to be based on his own wounded pride at having lost the popular vote to Hillary Clinton by close to 3 million votes, not on actual evidence. And they feared that the true purpose of the commission was to wage partisan warfare against Democratic voters – especially minority voters – by making it more difficult for them to register and cast a ballot.
Kris Kobach holds a stack of papers as he prepares to meet with Donald Trump in Bedminster, New Jersey, in November 2016. Photograph: Carolyn Kaster/AP
A revealing email written by one of Kobach’s allies on the commission expressed opposition to the inclusion of any Democrats or even “mainstream Republicans” because they would guarantee the failure of its mission.
The commission met just twice, giving away little or nothing of its agenda, the documentation it was relying on or even basic information like the time and venue of meetings. Civil rights and voting rights groups filed close to a dozen lawsuits to try to shed greater light on what Kobach and his colleagues were planning.
Then, in November, one of the commission’s own members, Maine’s Democratic elections chief, Matt Dunlap, filed his own suit after trying and failing to obtain basic information. An initial court ruling handed down just before Christmas ruled in Dunlap’s favour, a development that appears to have precipitated the White House’s decision to close the commission down completely.
Dunlap was one of just a handful of Democrats that were widely seen as token figures on a commission over which Kobach maintained tight control from the start. Voting rights activists pieced together what they guessed to be his agenda from a variety of sources – including court filings, a document photographed in Kobach’s hand following a meeting with the then president-elect Trump in December 2016, and Kobach’s occasional column for Breitbart News.
Much of it was familiar from Kobach’s efforts in Kansas, which in many cases have been challenged in court and some struck down.
Such efforts include introducing a “citizenship requirement” for voter registration despite a dearth of evidence that non-citizen voting is a problem; nationalizing a multi-state registration crosscheck that Kobach has championed, despite evidence that it flags legitimate voters hundreds of times more often than it does fraudulent double voters; watering down the 1993 National Voter Registration Act to make it easier to knock inactive voters off the rolls; and lobbying the DHS to use its immigrant benefits database to seek out non-citizen voters.
Of that wishlist, only the last item appears to have survived the disbanding of the commission.
Meanwhile, the fight is continuing over the commission’s documentation, since Dunlap is pursuing his lawsuit despite strong opposition from the Trump administration.
“The value of obtaining the documents is that we will finally have clarity as to what the premise of this commission was,” Dunlap told the Guardian. “It will give the American people something to look out for.”
On Friday, however, the justice department told Dunlap it saw no obligation to hand over anything now the commission has been dissolved. In response, Dunlap accused the justice department of “arrogance and contempt for the rule of law”.
Since the commission’s documentation was now being forwarded to the DHS, public scrutiny was more important than ever, he argued.
“The actions taken by the administration going forward will have an immense impact on every American voter,” he said. “The government cannot cloak major undertakings in changes to public policy in total secrecy without any public scrutiny or accountability.”
Martin Luther King’s Revolutionary Dream Deferred
US Army Maj. Danny Sjursen
We kill the most beautiful among us—anyone, it seems, who reveals the nastier, brutish elements of American society and has the audacity to imagine, demand even, a better path: peace, unity and tolerance. Abraham Lincoln, Bobby Kennedy, Martin Luther King and so many others.
This year marks the 50th anniversary of King’s tragic assassination, and though countless publications will brim with commemorations and retrospectives of this misunderstood icon, most will miss the mark. Long ago co-opted and sanitized by mainstream political figures, the King of memory bears little resemblance to the radical, complex man himself.
He’s remembered by Democrats and Republicans alike as the “good,” “peaceful” civil rights leader—a useful foil for the “bad” activists of the black power movement, the Stokely Carmichaels, Malcolm Xs and Huey Newtons of the world. In reality, the categories were never so neat, the commonalities staggering.
In a sense, we all—white and black, liberal and conservative—have our own King. My King is the provocative King, the critic of bigotry but also of capitalism and the Vietnam War. The King, in truth, who has been willfully concealed from view.
When I arrived at the American history department at West Point in 2014, I—a white, heterosexual, military man—was handed the portfolio and teaching load on civil rights. Everyone else, it seemed, studied the American Revolution or the Civil War, and, well, I came across as vaguely progressive and willing, at least compared with my peers. A former student of counterinsurgency operations in Northern Ireland, I decided to ditch the old scholarship and embrace my new role. I’ve never looked back. I taught classes and led an annual summer excursion for cadets to visit with movement veterans across the South. I, along with two academy law professors, faced an immediate challenge: the cadets’—and most Americans’—utter misunderstanding of the civil rights movement and Martin Luther King himself.
After 50 years, with the United States again locked in racial conflict, culture wars, gaping inequality and perpetual global war, now seems as good a time as any to take stock of the state of King’s “three evils”: racism, materialism and militarism.
America’s Original Sin: Race and Privilege
The cry of “Black Power” is, at bottom, a reaction to the reluctance of white power to make the kind of changes necessary to make justice a reality for the Negro. I think that we’ve got to see that a riot is the language of the unheard. And what is it that America has failed to hear? It has failed to hear … the economic plight of the Negro poor.
They are all linked, by the way. To treat each challenge as discrete is to rob them of their intertwined, inescapable power. Racism is a no-brainer. We’ve not come as far as we like to believe. Sure, there’s been the Brown v. Board ruling, Civil and Voting Rights Acts, even a black president. Nevertheless, each of these historic victories is being rolled back before our eyes. Schools are again as segregated as they’ve been in two generations. Conservative courts have dismantled key provisions of the Voting Rights Act. Heck, Jefferson Beauregard Sessions—a man too racist to serve as a federal district judge in the 1980s—heads the Justice Department.
Race and empire are intimately connected. Look only to the unprecedented militarization of the nation’s police—decked out in camo fatigues and sporting the same armored vehicles we drove in Baghdad—and the never-ending catalog of racially charged brutality cases nationwide for evidence. America resembles two armed camps, physically and intellectually isolated from each other. Five decades into an unwinnable and racially biased war on drugs, black men still fill the prisons in this nation—which has by far the highest rate of incarceration worldwide. In 2018 in the U.S., a black male is nine times as likely to serve time as a citizen of the next worst country: Cuba. We’ve got a long way to go.
The Unspoken King: Anti-Capitalism and Counter-Materialism
The problems of racial injustice and economic injustice cannot be solved without a radical redistribution of political and economic power.
The evils of capitalism are as real as the evils of militarism and evils of racism.
We inhabit a peculiar moment, when most Americans hardly look up from their smartphones long enough to realize they’re missing “Real Housewives.” The vacuous world of celebrity worship and material preoccupation does not lend itself to the impassioned activism King demanded. Unfettered, free-market capitalism—enabled by neoliberal Democrats like the Clintons—has gutted the American dream and rendered it an unattainable nightmare for many. The empirical evidence is staggering.
Income inequality in the (ostensibly) egalitarian United States has reached its worst levels since the Gilded Age. Wages for the working class have been stagnant for 40 years, while the superrich bask in an embarrassment of riches. The federal minimum wage is worth less in real dollars than it was 50 years ago.
Yet it’s all so much worse than that. Obsessive materialism and big money (think pharma, oil, fracking) in politics have set American culture in the express lane to existential disaster. Most of us live a delusion, wishing away the gathering storm of global warming while chasing immediate gratification from social media clicks. Soon after President Trump pulled the U.S. out of the Paris climate accord, Syria finally joined up, making America the true, lone international pariah. Really doubling down, Trump’s recently released National Security Strategy completely removed climate change from the Pentagon’s list of threats. I’m sure King would approve.
The Greatest Purveyor of Violence: U.S. Militarism, 50 Years On
A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.
I knew that I could never again raise my voice against the violence of the oppressed in the ghettos without having first spoken clearly to the greatest purveyor of violence in the world today: my own government.
One could plausibly argue that the United States remains a prominent purveyor of death, or at least chaos, across much of the planet today. It is this—the third of King’s evils—with which I am myself most familiar. Alas, in 2018, American militarism is alive and well, ranging from the symbolic martial pageantry pervading the National Football League to an ongoing, expanding and genuinely global war. Thanks to painstaking research at Brown University, we now know the U.S. military is conducting counterterror operations—all undeclared wars—in 76 countries. The bill so far? Some 7,000 dead American soldiers (eight of my own), 1.3 million war-related Arab/Muslim deaths, 10 million refugees and $5.6 trillion dollars. For this, we’ve gotten 30 times more worldwide terror attacks than occurred in 2001. What a steal.
Taking further stock of the state of U.S. militarism requires a macabre tour of direct and sponsored operations across the greater Middle East. In Yemen, the United States is complicit in Saudi terror bombing—providing munitions and in-flight refueling—that is causing famine and a world-record cholera epidemic in the Arab world’s poorest nation. In Syria and Iraq, the (perhaps justifiable) campaign against Islamic State resulted in far more civilian deathsthan originally reported. Ceaseless backing of the far-right Israeli government has helped facilitate an incessant state of siege of Palestinians in the Gaza Strip. The U.S. also backs dictators, kings or strongmen with abhorrent human rights records far and wide across the region, from Egypt to Saudi Arabia. Sure, they’re crooks, sure, they gun down protesters, sure they behead women for “sorcery,” but hey, at least they’re our crooks.
The point is as simple as it is disturbing: While there are many “purveyors of violence” in the world today, the United States is far from innocent. Militarism is alive, well and growing in our increasingly martial culture. In King’s time, young Vietnamese girls burned in napalm strikes signified this mindset. Today, perhaps the consummate image is a starving Yemeni child.
Appropriating the Dead: Willfully Misremembering King
In America, in the fifties and sixties, one of the important crises we faced was racial discrimination. The man whose words and deeds in that crisis stirred our nation to the very depths of its soul was Dr. Martin Luther King, Jr.
—President Ronald Reagan, 1983
When a Hollywood performer [Reagan], lacking distinction even as an actor can become a leading war hawk candidate for the presidency, only the irrationalities induced by a war psychosis can explain such a melancholy turn of events.
That neoliberal and neoconservative voices—along with mainstream figures in both parties—annually pay dutiful homage to King, without uttering a word about materialism or militarism, is a national disgrace. That former President Reagan, hero of the contemporary right, would publicly praise him, borders on the absurd. Lest we forget, Reagan, after all, made the first stop on his general election campaign in Neshoba County, Miss.—praising “states’ rights” in the city where three civil rights workers were famously murdered in 1964. He also initially opposed the bill officially designating Martin Luther King Day. Refusing to deny that King was a “communist,” Reagan would only say, “We’ll only know in about 35 years, won’t we?” And by the way, there are still four sitting (Republican) senators who voted against the MLK holiday: Richard Shelby of Alabama (no surprise there), Chuck Grassley of Iowa, Orrin (There’s No Blacks in Utah) Hatch and (disturbingly) John McCain of Arizona.
Every year, we’re treated to the same hypocrisy. Mainstream figures in both parties—some who vote for massive tax breaks for the rich, nearly all who support America’s endless wars—publicly laud and then invoke the ghost of King. None lays out a 21st century plan to implement MLK’s still incomplete vision. They have no such plan. They were bought and sold by corporate elites and the military-industrial complex long ago. On the right, some even engage in the fantasy that King was actually a Republican. He wasn’t. Truth be told, King would fit into neither of the two parties today. His platform and favored issues hardly receive public airing anywhere but the fringe left. Nonetheless, both Democrats and Republicans invoke King’s ghost every January for petty political gain. It’s heinous.
Republicans especially, but also centrist liberals, want us to believe King was one thing only: a narrow, nonviolent civil rights activist. That he gave only one speech: about a dream of his black daughters attending school with young white girls. They’ve sanitized him, castrated his message, omitted (through strikingly Orwellian “new speak”) his uncomfortable quotes. They’ve done so with nefarious intentions and political agenda: convince the masses that King’s revolution is over, completed, final. Stop complaining, stay out of the streets, there’s no reason to protest. Be thankful for what you have.
Don’t fall for it. Read, study, unearth the real King, the radical King, and take up the torch of his fight—a dream deferred—against the three evils still alive and well in the United States: racism, materialism and militarism. The owners of this country are counting on your apathy. Prove them wrong.
Maj. Danny Sjursen, a Truthdig regular contributor, is a U.S. Army officer and former history instructor at West Point. He served tours with reconnaissance units in Iraq and Afghanistan. He has written a memoir and critical analysis of the Iraq War, "Ghost Riders of Baghdad: Soldiers, Civilians, and the Myth of the Surge." He lives with his wife and four sons in Lawrence, Kan. Follow him on Twitter at @SkepticalVet and check out his new podcast "Fortress on a Hill," co-hosted with fellow vet Chris "Henri" Henrikson.
The views expressed in this article are those of the author, expressed in an unofficial capacity, and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. government.
Deborah N. Archer and Derek T. Muller
The Twenty-Fourth Amendment
By Deborah N. Archer and Derek T. Muller
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.
Matters of Debate
The Role of The Twenty-Fourth Amendment in Challenging Financial Burdens on the Right to Vote By Deborah N. Archer
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.
Matters of Debate
Federal Power Over Elections and The Twenty-Fourth Amendment By Derek T. Muller
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 Amendmentprohibited 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.