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A Right to Preserve All Others: Reflections on the Poll Tax

By: 
General Counsel/Director of Government Affairs

The term “poll tax” rightly carries moral and political baggage for people in Texas. Not historically tied to voting, poll taxes provided a foundation for census taking and taxation in an agrarian economy for thousands of years, but in the 20th century they became closely identified with the systematic disenfranchisement of people of color in the American electoral system.

Although the abolition of the poll tax as a condition for voting coincided with the civil rights movement in the US, the legal foundations for overturning those state laws were based in economic justice with wealth as a suspect classification.  Courts found that the right to vote was so fundamental to our democracy that it could not be abridged based on an individual's ability to pay.

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The Twenty-fourth Amendment to the United States Constitution prohibiting the denial or an individuals right to vote in any election due to failure to pay a tax was ratified by the required 38 states in 1964. The Supreme Court then extended its applicability to the states in ​Harper v. Virginia Board of Elections, 383 U.S. 663 in 1966.  Texas post-ratified the 24th Amendment to the United States Constitution in 2009.

The fact that Texas lawmakers were still debating the issue more than 40 years later illustrates the ongoing tension surrounding voting rights, and encourages all Texans to reflect on the simple act of voting as the fundamental building block of democracy on which the entire American system of government depends.

Background

The word “poll” derives from the Old English use of the word which simply means “head.”  Thus, a “poll tax” is simply a “head tax” or a flat tax the state levies merely for being alive.  Poll taxes are a vestige of an old agrarian economy.  It was an easy way to conduct a census and raise revenue in a time before most people earned a modern income.  One well-known example of this form of taxation was the Roman tax that Christians remember as the reason Mary and Joseph traveled to Bethlehem and Jews remember as one of the reasons for the Zealot Revolt against Rome. 



Texas had a poll tax since the days of the Republic.   The right to vote, however, was not contingent upon paying the tax.  In fact, it was the Radical Republicans (supported at the time largely by the military and recently freed African Americans) that enumerated the poll tax in the Constitution of 1869 and used the revenue to pay for education.  

Many assume that making voting contingent upon payment of the poll tax was the product of post-Reconstruction era legislatures.  However, the history in Texas is more complicated.  Texas did not pass such a law until the 27th Legislature in 1901.  In fact, attempts to make the right to vote contingent on paying a poll tax were rejected on multiple occasions by the post-Reconstruction legislatures long after the Democrats had gained control.  Interesting attempts of note include the failed Constitution of 1874 and in the current Constitution of 1876.  Both times the legislation was introduced during the corresponding Legislative Sessions of 1873 (13th Legislature) and 1875 (14th Legislature), and both times the legislation was killed in committee.  

Following the insurgence of the Populists at the close of the 19th century, however, the 27th Texas Legislature in 1901 made the right to vote contingent upon having paid the poll tax.  This move simultaneously prevented a resurrection of the Populist party, rendered irrelevant the wing of the Democratic party with populist leanings, and undercut the African American base of support for Republicans. In 1890, voter turnout in Texas was close to 80 percent.  After the poll tax was instituted as a requirement for voting, turnout by whites dropped to 50 percent and turnout by blacks plummeted to 15 percent.  The Republican party’s influence declined from 100,000 voters representing 25 percent of the electorate to nominal representation in only a handful of districts.   The Democratic establishment of plantation owners, bankers, merchants, and railroads had regained control and turned their back on a Jeffersonian/Jacksonian democracy at the expense of small farmers, blacks, Hispanics, labor groups, and former Populists.

The right to vote in Texas remained contingent upon payment of the poll tax until the Supreme Court declared it unconstitutional in 1966.  It survived a constitutional challenge at the Supreme Court in 1937 in Breedlove v. Suttles, 302 U.S. 277, (1937).  In 1964, 38 of the 50 states ratified the 24th Amendment eliminating poll taxes as a requirement for voting in Federal Elections. In February of 1966, Federal District Judge Homer Thornberry struck down the Texas poll tax.  One month later in March, the Supreme Court ruled in Harper v. Virginia Board of Elections, that the 24th Amendment also applied to state and local elections through the Equal Protection Clause of the 14th Amendment.  Justice Thornberry's ruling was upheld in a per curium by the Supreme Court.  

What is interesting about the poll tax cases from a legal perspective is that while Harper and the other poll tax cases were contemporaneous with many of the civil rights cases such as Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), they are conceptually more closely related to economic rights such as FDR’s New Deal and LBJ’s War on Poverty. Many of the famous civil rights were decided either on commerce clause grounds or used the standard 14th Amendment equal protection clause reasoning which said that race is a suspect classification to which the court applies strict scrutiny. In Harper, however, both Justice Thornberry and then the Supreme Court went a different direction.

In Harper, the Court reaffirmed a long-standing principle in Supreme Court jurisprudence that voting is a fundamental right.  Voting is a right so fundamental to our democracy that is cannot be related to one's possession of material resources. The majority opinion states, "A State violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth."

As Justice Thornberry put it, “if the state charged someone $1.75 before that person had the right to speak, there would be no debate that that law was clearly unconstitutional” under the First Amendment. Therefore, a person’s wealth is an irrelevant factor in determining whether a person is qualified to exercise the right to vote. Voting is a right so fundamental to our system of government, that it is the right that is preservative of all other rights.

According to the Dallas Morning News, in an article from April 2, 1966, after the poll tax was abolished, 400,000 new voters were eligible to vote in Texas. In 1966, this meant a nearly 24 percent increase in the size of the electorate that has been effectively prohibited from voting because of the poll tax.  

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Bibliography of Sources

1. Mauer, John Walker.  The Poll Tax, Suffrage, and the Making of the Texas Constitution of 1876.

2. Roscoe Martin.  The People’s Party In Texas:  A Study in 3rd Party Politics.  Feb. 22, 1933. 

3. Legislative Records, 13th Leg., H.J.R. 230

4. Legislative Records, 14th Leg., S.J.R. 406

5. Senate Journal, 14th Leg., Reg. Sess., 1874, 614.

6. http://texaspolitics.laits.utexas.edu/6_5_3.html

7. Handbook of Texas Online. 

8. Donna A Barnes, Farmers in Rebellion:  The Rise and Fall of the Southern Farmers’ Alliance and People’s Party in Texas (Austin:  University of Texas Press, 1984). 

9. http://www.tshaonline.org/handbook/online/articles/npl01

10. Nell Irwin Painter.  Standing at Armageddon:  A Grassroots History of the Progressive Era.  New York:  W.W. Norton Publishing Company, 2008.

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