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Hey, What About the 24th?—A Commentary by Bruce Ackerman ’67 and Jennifer Nou ’08

The following commentary was posted on Slate.com on May 2, 2008.

Hey, What About the 24th?
By Bruce Ackerman ’67 and Jennifer Nou ’08

Americans have long fought hard to protect the right to vote and a generation ago emphatically rejected the idea of paying for the ballot. As the civil rights revolution reached its peak, Congress and the states in 1964 enacted the 24th Amendment, forbidding any "poll-tax or other tax" in federal elections. Yet, remarkably enough, this basic text went unmentioned by the Supreme Court when it upheld Indiana's photo-ID law this week.

Indiana's law insists on a photo ID to vote, which in turn requires documents, like a birth certificate or passport, that verify identity. Getting these papers costs voters money as well as time and effort. This leads to the question the court failed to ask: Does the extra expense violate the absolute ban on all "taxes" imposed by the 24th Amendment?

The leading Supreme Court decision about this amendment provides a starting point. In Harman v. Forssenius, Virginia responded to the new constitutional prohibition by allowing citizens to escape its poll tax if they filed a formal certificate establishing their place of residence. Otherwise, they would be obliged to continue paying a state tax of $1.50 if they wanted to cast a ballot. Lars Forssenius refused to pay the tax or file the residency certificate and brought a class action suit attacking the statute as unconstitutional.

The Supreme Court agreed with Forssenius in 1965, only a year after the amendment came into force. Chief Justice Earl Warren emphasized that Virginia's escape clause for avoiding the $1.50 was unconstitutionally burdensome: "For federal elections," he explained, "the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed." Although the Roberts Court divided sharply this week over Indiana's voter ID law, Warren's opinion gained the support of all the sitting justices except the conservative Justice John Marshall Harlan–and even he concurred in the result.

Harman casts a shadow over Indiana's photo-ID law. On the face of things, Indiana provides identification free of charge, but so did Virginia when it required proof of residence. Like Virginians trying to avoid the tax, Indianans must file paperwork to get their IDs. And their burden is often heavier. It was enough for a Virginian to swear that he or she was a resident in front of witnesses or a notary public. Indianans must also travel to the Bureau of Motor Vehicles to get a photo ID as well as pay for supporting documents like a birth certificate or passport. They can escape the requisite fees only by casting a provisional ballot and then taking another trip to a local official to swear that they are too poor to comply. And they must repeat this humiliating procedure every time they cast a ballot.

Like Indiana, Virginia told the court that a certificate of residency was necessary to preserve the integrity of its elections. But in 1965, the justices would have none of it. According to Harman, the 24th Amendment could not be satisfied by a showing of "remote administrative benefits"–especially when other less burdensome devices were available for proving residency. In particular, the court pointed out that Virginia could ask voters to take an oath and rely on the threat of punishment to deter lying. The same is true today in Indiana.

We don't suggest that the Roberts Court isn't clever enough to find a way around Harman. Our point is that the justices didn't even try. They ignored the 24th Amendment and restricted themselves to the equal-protection clause of the 14th in deciding the Indiana case. Narrowing their vision didn't help them reach a consensus. The nine justices produced four very different opinions, none of which gained more than three votes.

Justice John Paul Stevens spoke for the three swing justices. In contrast to Harman, he refused to strike down the exclusionary statute on its face. He chose to uphold the cumbersome Indiana procedure, leaving it to later lawsuits to establish that it unjustifiably burdened particular voters. Like all the other justices, Stevens reached his conclusion without recognizing that Harman's interpretation of the 24th Amendment provided a key precedent pointing to a clean-cut vindication of voting rights.

This sort of thing doesn't happen every day in the life of the court–indeed, we can't think of another case in which the justices utterly failed to address the most obviously relevant provision of the constitutional text. If they had squarely confronted the law and language of the 24th Amendment, there is a fair chance that Justices Stevens and Anthony Kennedy would have switched sides, creating a new majority for striking down the Indiana law.

This lapse is remarkable, but it would be a mistake to put the blame entirely on the current court. The erasure of the 24th Amendment is the result of an accident of history. Since the amendment as written applies only to federal elections, the ACLU brought Harper v. Virginia to the court in 1966, seeking to extend the ban on election taxes to state balloting as well. In an unpublished opinion, Justice Arthur Goldberg urged his colleagues to strike down the remaining state poll taxes, relying heavily on the 24th Amendment to reach his conclusion. But by the time the case was ready for final decision, Lyndon Johnson had persuaded Goldberg to leave the court and serve as ambassador to the United Nations in a vain effort to end the Vietnam War.

The job of writing Harper fell to Justice William O. Douglas, who–to put it mildly–was no legal craftsman. He entirely failed to mention the 24th Amendment in his characteristically activist opinion denouncing the poll tax.

Douglas' erasure haunted consideration of the Indiana case from the beginning. Following in his footsteps, the court of appeals failed to mention the 24th Amendment in its opinion upholding the Indiana law. This set the stage for the justices' wrong turn. Their failure is especially curious in light of the Roberts Court's increasing emphasis on the primacy of the written text in constitutional adjudication. If the 24th Amendment had been front and center, even conservative textualists like Antonin Scalia and Clarence Thomas would have been obliged to think again before ruling against voters' rights.

Fortunately, the entire issue will return to the court soon. Stevens' swing opinion opens the door to challenges after every close election, which is messy, but it also is an invitation to would-be voters to come back to court after Tuesday's primary and argue–in very concrete terms–that they have been unjustifiably excluded from the ballot box. This time around, the justices should finally recognize their obligation to confront Harman's declaration that the 24th Amendment does not merely forbid the "poll tax or other tax[es]" but also imposes a ban on "equivalent or milder substitute[s]."

Perhaps the majority will choose to turn its back on Harman and uphold the state's exclusionary law. But at the very least, the justices should provide Indianans, and the rest of us, with an explanation for their decision to trivialize a solemn constitutional amendment enacted only 44 years ago.

Bruce Ackerman is a professor and Jennifer Nou a third-year student at Yale Law School. Their article on the 24th Amendment is forthcoming in the Northwestern University Law Review.