The Poll Taxes Amendment

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 poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

—Derek T. Muller

Introduction

The Twenty-Fourth Amendment, adopted in 1964, prohibits poll taxes in federal elections, which only a few states still required at that time. The amendment sought to stamp out a qualification that targeted black voters after the end of Reconstruction. Two years after ratification of the amendment, the Supreme Court construed the Fourteenth Amendment’s Equal Protection Clause to prohibit poll taxes in state elections as well. Litigation occasionally arises over whether some financial costs that attend voting qualify as a “poll tax.”

Historical Background

In the early days of the Republic, property ownership was commonly a prerequisite to voting,¹ but many states replaced property ownership with a requirement that voters had to pay taxes. This change significantly broadened the franchise because far more citizens paid taxes than owned property.²

The form of these tax requirements varied. New Hampshire’s 1784 constitution, for instance, required that an adult man who desired to vote in the state Senate election could do so only after “paying for himself a poll tax.”³ Massachusetts amended its constitution in 1821 to permit adult men who paid “any state or county tax” in the six months preceding an election to vote unless that voter was “exempted from taxation.”⁴ States later loosened taxpaying requirements, and by 1855, almost all states had abolished their property and taxpaying qualifications.⁵

During Reconstruction, many southern state constitutions were amended to guarantee race-neutral voting rights. These provisions were often required as a condition for readmission to the Union. However, shortly after Reconstruction ended, the poll tax resurfaced in the South to dilute the effect of these provisions.

In 1889, Florida adopted the first among this new generation of poll taxes, and other southern states quickly followed. Under these laws, citizens who were otherwise eligible to vote (for example, the state’s adult male inhabitants) were required to pay a tax, typically between $1 and $2, when registering to vote and then annually thereafter.⁶ Some states phased out the poll tax for older voters. Mississippi required voters to pay the tax by several months ahead of an election.⁷ The poll tax was cumulative in some states. Until 1953, Alabama had a $1.50 poll tax that could accumulate for up to 24 years. A person who was eligible to vote but did not register for two decades would have to pay a tax of $36 to vote.⁸

These poll taxes were often designed to disenfranchise black voters. During the 1902 Virginia constitutional convention, for instance, one delegate declared that the tax was introduced “with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”⁹

Poll taxes also had the effect of disenfranchising the poor in general, including white voters.¹⁰ Some states created “grandfather clauses” that exempted voters who had performed military service during the Civil War or whose ancestors had been eligible to vote before the Civil War. These exemptions were designed to benefit poor white voters.¹¹

The U.S. Supreme Court upheld the constitutionality of the poll tax in Breedlove v. Suttles (1937).¹² A white twenty-eight-year-old man in Georgia challenged the $1 poll tax, which was assessed each year on men between the ages of twenty-one and sixty but exempted the elderly, the blind, and women. The Court found that poll taxes did not deny any privilege or immunity under the Fourteenth Amendment and that Georgia could make a reasonable exemption for women without violating the Nineteenth Amendment. Instead, the Court held, “the state may condition suffrage as it deems appropriate.”

The Congressional Debates

Starting in 1939, legislation to eliminate poll taxes in federal elections was introduced in every Congress. However, these bills were never passed.¹³ Members of Congress debated whether the poll tax could be abolished by ordinary legislation or whether ending them required a constitutional amendment.¹⁴

Over that time, some states repealed their poll taxes. By 1962, only five states—Alabama, Arkansas, Mississippi, Texas, and Virginia—had a poll tax.¹⁵ The taxes were relatively small; in Virginia, for instance, it was $1.50 annually, and a voter must have paid all taxes due in the preceding three years.¹⁶

In 1962, what would become the Twenty-Fourth Amendment was introduced in Congress. Some members argued that poll taxes were racially discriminatory and that Congress should outlaw them pursuant to the enforcement powers of the Fourteenth and Fifteenth Amendments, which barred racial discrimination.¹⁷ But these powers did not directly reach the disenfranchisement of the poor, and poll taxes also swept in both white and black voters. Congress decided against using its Fifteenth Amendment enforcement power. Rather, an amendment targeting the poll tax was considered the safer constitutional approach.

The amendment’s supporters attacked the poll tax as a vehicle for fraud. The tax facilitated political corruption through vote buying. Political machines would make block payments of the tax for their voters. For instance, labor unions would pay poll taxes on behalf of their members to ensure high voter turnout among their membership.¹⁸

Members of Congress debated whether to abolish the poll tax in all elections or only federal elections. In the end, there was consensus to abolish it in only federal elections, a concession to advocates of states’ rights. Senator Spessard Holland of Florida, for instance, argued that “many” Senators “strongly feel that the election of State and local officials and the making of decisions on strictly local matters, such as bond issues, tax millage questions, referendums, recall procedures, and the like, are properly and more effectively handled on the State and local level, and we would strenuously oppose any effort to control such matters by Federal law.”¹⁹ The final version of the amendment applied only to “any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress.” Congress carefully excluded elections for state, local, and municipal positions.

The text prohibited a “poll tax” or “other tax.” During the congressional debates, little time was devoted to defining the terms in the amendment, such as what constituted a “poll tax” or “other tax.” Instead, the principal subject of debate was whether it was appropriate for Congress to direct states how to run their elections.²⁰ Southern members also stressed that few states still had poll taxes and that states should retain the authority to decide for themselves what to do. Senator Allen Ellender of Louisiana argued that “[o]nly five States” had poll taxes and that “[e]very State must pass upon this question and decide whether it wants a poll tax or not.”²¹ Senator J. Lister Hill of Alabama expressed his “unalterable opposition to having the Federal Government interfere with or in any way meddle with the affairs of the States in connection with the matter of the poll tax or any other matter of domestic concern to the people of the States.”²²

The amendment was approved by the Senate on March 27, 1962, after surviving a ten-day filibuster, by a vote of 77 to 16 with seven not voting.²³ On August 27, 1962, the House approved the amendment by a vote of 294 to 86 with 54 not voting and one voting present.²⁴

Thirty-eight states ratified the amendment by January 1964. After ratification, President Lyndon Johnson remarked that “[t]here can now be no one too poor to vote. There is no longer a tax on his rights. The only enemy to voting that we face today is indifference.”²⁵

Judicial Precedent

The Supreme Court construed the Twenty-Fourth Amendment for the first time in Harman v. Forssenius (1965). Ahead of the amendment’s ratification, Virginia modified its law to permit voting in federal elections only if, at least six months before each election, a voter had either paid a poll tax or filed a certificate of residence. The Court declared the Virginia law to be unconstitutional. The broad language of the Twenty-Fourth Amendment, the Court stressed, prohibited not only the denial, but also the abridgement of the right to vote. The Court construed the Twenty-Fourth Amendment in parallel with its precedents on the Fifteenth Amendment, which prohibited both denial and abridgment of the right to vote on the basis of race, color, or previous condition of servitude. The Court explained that the Twenty-Fourth Amendment “‘nullifies sophisticated as well as simple-minded modes’ of impairing the right guaranteed”²⁶ and applies to “‘onerous procedural requirements which effectively handicap exercise of the franchise.’”²⁷

The drafters of the amendment had limited its scope to federal elections. Two years after its ratification, however, the Supreme Court rejected that distinction. Harper v. Virginia State Board of Elections (1966) announced that the use of poll taxes as a requirement for voting in state elections violated the Equal Protection Clause of the Fourteenth Amendment.²⁸ Harper concerned a Virginia statute that required the payment of a poll tax not to exceed $1.50 as a precondition for voting in local elections. Virginia argued that this amount was minimal and thus not a significant burden on the right to vote.

The Court admitted that “the right to vote in state elections is nowhere expressly mentioned” in the Constitution but nevertheless declared the statute unconstitutional because “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”²⁹ The Court explained that a “State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” The majority stressed that “[v]oter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”³⁰

Justice Hugo Black lamented in dissent that the majority “consult[ed] its own notions rather than following the original meaning of the Constitution.” This decision, Black wrote, was “apparently . . . based on the belief” that “be[ing] bound by the original meaning of the Constitution is an intolerable and debilitating evil” and “that our Constitution should not be ‘shackled to the political theory of a particular era.’” Rather, “the Court must have constant power to renew [the Constitution] and keep it abreast of this Court’s more enlightening theories of what is best for our society.”³¹ The Court, Black wrote, was on a mission to “save the country from the original Constitution.” Justice John M. Harlan II also dissented. He pointed out that the political process was the appropriate channel for resolution of the dispute. Most States had already abolished poll taxes in state elections, and the Twenty-Fourth Amendment was recently and quickly ratified.³²

The judiciary has largely rejected efforts to extend the Twenty-Fourth Amendment to other financial costs associated with voting. For example, the amendment does not forbid making re-enfranchisement of felons contingent on payment of child support³³ or payment of past-due fines.³⁴ Additionally, the indirect costs associated with obtaining voter identification—such as the cost of obtaining paperwork that is required to obtain an identification card—do not constitute a poll tax.³⁵

Nevertheless, there are some outlier cases. In 2005, a federal district court held that Georgia’s voter identification law violated the Twenty-Fourth Amendment. Voters were required to provide photo identification to vote, and voters without appropriate identification needed to pay $20 for an identification card that would be good for five years. A court found that this “fee” functioned as a tax, and the Georgia legislature subsequently amended the law to eliminate the fee.³⁶ In general, however, voting rights claims have received a better hearing from federal courts under other constitutional or statutory bases.

Open Questions

• The Twenty-Fourth Amendment prohibits a poll tax or “other tax” as a requirement for voting. What is the meaning of “other tax”?³⁷ Are the financial penalties associated with the disenfranchisement of felons considered taxes?³⁸
• The Twenty-Fourth Amendment uses the phrase “by reason of.” What is the relationship between a cost associated with voting and the predicate phrase “by reason of”? A plurality of the Eleventh Circuit en banc concluded that “the Twenty-Fourth Amendment prohibits denials of the right to vote for which the failure to pay a tax is not only the but-for cause, but also the reason for the State’s action.”³⁹ In other words, the plurality concluded that “the Twenty-Fourth Amendment prohibits denials of the right to vote motivated by a person’s failure to pay a tax.”⁴⁰

1. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 28–29 (2000). ↩︎
2. Frederic D. Ogden, The Poll Tax in the South 2 (1958); Keyssar, supra at 29–30. ↩︎
3. N.H. Const. of 1784, art. 28. ↩︎
4. Mass. Const. of 1780, amend. III. ↩︎
5. Keyssar, supra at 29. ↩︎
6. Ogden, supra at 32–33. ↩︎
7. Id. at 34. ↩︎
8. Id. at 33. ↩︎
9. Keyssar, supra at 112. ↩︎
10. Ogden, supra at 20–29. ↩︎
11. Keyssar, supra at 112. ↩︎
12. 302 U.S. 277 (1937). ↩︎
13. H. Rep. No. 1821, at 2 (1962). ↩︎
14. Anti-Poll-Tax Legislation: Hearings Before the Subcomm. on Elections of the H. Comm. on Admin., 80th Cong. (1947). ↩︎
15. H. Rep. 1821, supra at 3. ↩︎
16. Harper v. Va. Bd. of Elections, 383 U.S. 663, 664 n.1 (1966). ↩︎
17. H. Rep. No. 1821, supra at 5; Bruce Ackerman & Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. Rev. 63, 79–87 (2009). ↩︎
18. Ogden, supra at 90–91, 100–03. ↩︎
19. Abolition of Poll Tax in Federal Elections: Hearings Before Subcomm. No. 5 of the H. Comm. on the Judiciary, 87th Cong. 25 (1962). ↩︎
20. 108 Cong. Rec. 17654–70 (1962). ↩︎
21. Id. at 5034. ↩︎
22. Id. at 4364. ↩︎
23. S. Rep. 99-87, at 80–81 (1985). ↩︎
24. 108 Cong. Rec., supra at 17670. ↩︎
25. Nan Robertson, 24th Amendment Becomes Official: Johnson Hails Anti-Poll Tax Document at Ceremonies, N.Y. Times (Feb. 4, 1964), https://perma.cc/ZE6S-YCZ2. ↩︎
26. 380 U.S. 528, 540–41 (1965) (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939)). ↩︎
27. Id. at 541 (quoting Lane, 307 U.S. at 275). ↩︎
28. 383 U.S. 663 (1966). ↩︎
29. Id. at 665. ↩︎
30. Id. at 666. ↩︎
31. Harper, 383 U.S. at 677 (Black, J., dissenting). ↩︎
32. Id. at 685–86 (Harlan, J., dissenting). ↩︎
33. Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010). ↩︎
34. Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010) (O’Connor, J., sitting by designation). ↩︎
35. Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012), aff’d on other grounds, Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). ↩︎
36. Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 1366–71 (N.D. Ga. 2005). ↩︎
37. Allison R. Hayward, What Is an Unconstitutional “Other Tax” on Voting? Construing the Twenty-Fourth Amendment, 8 Election L.J. 103 (2009). ↩︎
38. Jones v. Governor of Fla., 975 F.3d 1016, 1037–40 (11th Cir. 2020) (en banc) (W. Pryor, C.J.). ↩︎
39. Id. at 1045 (plurality opinion). ↩︎
40. Id. ↩︎