Breedlove, Harper, and the Poll Tax

poll tax

Justice Douglas published An Almanac of Liberty in 1954. And on December 6, he recalled the 1937 Breedlove v. Suttles decision that upheld a state poll tax. Twelve years later, he wrote the majority decision that held all poll taxes as unconstitutional. Currently, people work harder to create roadblocks to voting than to register them. Imagine the long lines if you needed to pay a fee – or the lack of lines since no one would pay.

Breedlove v. Suttles

Georgia required all non-blind men (and women who want to vote) between the ages of 21 and 60 years to pay $1 to register to vote. Women had a strange denotation in this case. “The tax being upon persons, women may be exempted on the basis of special considerations to which they are naturally entitled.” Based on inflation adjustments, what cost $1 in 1933 would cost $19.26 in 2017.

On March 16, 1936, a 28 year old white man applied to register to vote. He informed the clerk that he did not pay any poll taxes and demanded the clerk to allow him to register.

The Court upheld the poll tax as a prerequisite to vote. “Privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate.”

Of course the Court had a lot to say in regards to why women had the “special considerations.” 

  • The state could exempt women because the wife is the subject to her husband under Georgia law. If she had to pay the tax, it would add to his burden.
  • The poll taxes raise money for education. The father has the duty to provide of his children’s education.
  • The state may exempt people from poll taxes for “the preservation of the race.”

Strange to read these old cases and ever think that the Supreme Court should hold the prominence that we give it.

The 24th Amendment

Congress proposed the Twenty-Fourth Amendment on August 27, 1962.

The text of the amendment read:

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.

By 1962, most states had abandoned poll taxes. However, five states continued the practice: Alabama, Arkansas, Mississippi, Texas, and Virginia. However, the rules became very flexible. Even there, the states had eased the rules somewhat, such as limiting the cumulative effect of poll taxes.

At the same time, in his State of the Union address, President John F. Kennedy endorsed elimination poll taxes and literacy tests. As part of his Civil Rights agenda, Kennedy said, “As we approach the 100th anniversary, next January, of the Emancipation Proclamation, let the acts of every branch of the Government—and every citizen—portray that “righteousness does exalt a nation.”

Ratification was completed on January 23, 1964.

Harper v Virginia Bd. of Elections

Even with the new amendment, states, like Virginia, continued their poll tax practices because the amendment did not specifically speak to state elections.

In a 6-3 decision, Justice Douglas writing for the majority concluded the state poll tax violated the Equal Protection Clause. “Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate.”

Douglas called back to Yick Wo v. Hopkins where the Court referred to voting as a “fundamental political right, because preservative of all rights.” Additionally, the recent case Reynolds v. Sims, which dealt with district lines, became a focal argument. In that case, the Court held suffrage as a fundamental right. “Any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” The poll tax did not hold up to this standard.

[W]hether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.

As we watch election laws continuously chip away at that fundamental right, the legacy of Reynolds and Harper today seems small. In fact, the dissents read like the blueprints for our current jurisprudence.

Dissent by Justice Black

As a new justice on the Court, Justice Black voted with the unanimous decision in Breedlove. And Justice Black loved stare decisis. he argued the law applied to everyone equally. No race or specific class had to pay the poll tax. All who wanted to vote needed to pay.

He also argued that the legislature could abolish poll taxes if it wanted. But since Congress did not act, the states still had this power. Black said this was an act of legislating from the bench.

Dissent by Justice Harlan

Similarly, Justices Harlan and Stewart believed the Court should not make this final decision. The legislatures had the last voice in this tactic by the states. However, he decided to spend most of his time reiterating that he was correct in Reynolds

But they noted that property and poll tax qualifications fight against the current egalitarian notions of democracy. He argued that the Court should not adopt the political doctrines popularly accepted. He noted  that the Court previously enacted their laissez-faire theory of society in Lochner, which the majority opinion called out as the problem with not overturning this law. 

Instead, the Equal Protect Clause did not impose egalitarianism. They stated that, “the Equal Protection Clause prevents States from arbitrarily

Of course, when you read the recent cases about the Voting Rights Act and state redistricting, these dissent opinions have overtaken our Courts. Remember that when people discuss precedent.

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