The opinion
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13414
________________________
D.C. Docket No. 1:20-cv-01489-AT
BLACK VOTERS MATTER FUND,
MEGAN GORDON,
PENELOPE REID,
Plaintiffs-Appellants,
ANDY KIM,
Plaintiff,
versus
SECRETARY OF STATE FOR THE STATE OF GEORGIA,
DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS,
ANTHONY LEWIS,
SUSAN MOTTER,
DELE LOWMAN SMITH, et al.,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 27, 2021)
Before BRANCH, GRANT, and ED CARNES, Circuit Judges.
BRANCH, Circuit Judge:
This appeal requires us to consider whether either the Twenty-Fourth
Amendment or the Equal Protection Clause of the Fourteenth Amendment requires
Georgia to pay for postage for voters who choose to return their absentee ballots by
mail. Black Voters Matter Fund, LLC, Penelope Reid, and Megan Gordon
(“Plaintiffs”) ask us to declare Georgia’s statutory framework for absentee voting
by mail—which gives voters an option to return an absentee ballot by mail but
does not provide for the payment of their postage to do so—unconstitutional. The
Plaintiffs argue that by not covering the cost of postage, Georgia is imposing an
unconstitutional “poll tax” or fee on some absentee voters. We hold that the fact
that absentee voters in Georgia who decide to vote by mail must pay their own
postage is not a “tax” or unconstitutional fee on voting. Accordingly, we affirm
the district court’s decision to dismiss the Plaintiffs’ constitutional claims.
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I. Background
A. Georgia Voting Statutes 1
Georgia voters cast their ballots in two main ways—in person or through the
absentee process. In-person voters can vote on election day or during a period of
advance voting. O.C.G.A. § 21-2-385(d)(1). Absentee voters, after applying for
and receiving an absentee ballot, are responsible for returning their ballots to the
county election office. O.C.G.A. §§ 21-2-216(a) (elector’s qualifications); 21-2-
381 (application for absentee ballot); 21-2-385 (voting by absentee electors).
Those voters can choose to return their ballots directly to the county election
office, deposit them into a ballot drop box, or mail them to the county election
office. O.C.G.A. §§ 21-2-385(a); 21-2-382(c)(1).2 The statute requires neither the
state of Georgia nor county governments to cover the cost of postage for absentee
voters who choose the third option—mailing their ballots.3
1
After the parties briefed this case, Georgia passed the “Election Integrity Act of 2021”
to reform several of Georgia’s voting procedures. 2021 Ga. Laws 9 (“SB 202”). The parties
assert, and we agree, that nothing in the Act affects the issues in this appeal.
2
In response to the COVID-19 pandemic, the State Election Board adopted a temporary
emergency rule that allowed absentee voters to return their ballots to absentee ballot drop boxes.
Ga. Comp. R. & Regs. 183-1-14-.08. Georgia’s recently passed Election Integrity Act codifies
the use of absentee ballot drop boxes and further requires all counties to have at least one such
drop box. 2021 Ga. Laws 9; O.C.G.A. § 21-2-382(c)(1).
3
The United States Postal Service (“USPS”) requires voters to affix postage to absentee
ballots (with some exceptions) to mail them, but, as was noted in the district court proceeding,
USPS’s policy is to inform its employees to deliver official election mail—including absentee
ballots—even if it contains insufficient or no postage. United States Postal Service, 2014
Election and Political Mail Update, Postal Bulletin 22391 (June 12, 2014),
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B. Lawsuit
The Plaintiffs filed suit to challenge Georgia’s statutory framework for
absentee voting, alleging that requiring voters who choose to return their absentee
ballots by mail to pay for their own postage is a poll tax in violation of the Twenty-
Fourth Amendment and the Equal Protection Clause of the Fourteenth
Amendment.4 The Plaintiffs sued the Georgia Secretary of State, the DeKalb
County Board of Registration & Elections, and other DeKalb County elections
officials (“Defendants”) seeking a declaratory judgment that Georgia’s statutory
framework for absentee voting by mail is unconstitutional because it amounts to a
poll tax and an impermissible fee on voting and seeking injunctive relief requiring
Defendants to provide postage for absentee ballots.5
https://about.usps.com/postal-bulletin/2014/pb22391/html/kit.htm (explaining that “Postal
Service employees are instructed that unpaid absentee balloting materials must never be returned
to the voter for additional postage. Postage is collected from the election office upon delivery or
at a later date”).
4
The individual plaintiffs, Reid and Gordon, are Georgia registered voters who do not
want to vote in person because of the COVID-19 pandemic and do not want to use their own
stamps to mail in absentee ballots. Black Voters Matter Fund is an organization that works to
increase voter registration, turnout, and advocates for policies to expand voting access.
The Plaintiffs also sought to certify a class action to challenge Georgia’s absentee voting
framework, but the district court reserved ruling on class certification, and the class certification
issue is not before us on appeal.
5
Plaintiffs also sought a preliminary injunction to require the Defendants to cover the
cost of postage in the 2020 general election. The district court denied Plaintiffs’ request, and
Plaintiffs did not appeal that decision.
4
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The Defendants moved to dismiss, arguing, among other things, that
Georgia’s statutory framework for absentee voting is not a state poll tax or
unconstitutional fee on voting. They also argued that USPS’s policy of delivering
absentee ballots even if they have insufficient postage further defeated Plaintiffs’
claims.
The district court granted the Defendants’ motions to dismiss because it
determined that the postage requirement is not a poll tax under the Twenty-Fourth
Amendment or an unconstitutional fee on voting prohibited by the Equal
Protection Clause. The court found that “[t]he fact that any registered voter may
vote in Georgia on election day without purchasing a stamp, and without
undertaking any ‘extra steps’ besides showing up at the voting precinct and
complying with generally applicable election regulations” necessitated its
conclusion. The court acknowledged that “voting in person is materially
burdensome for a sizable segment of the population, both due to the COVID-19
pandemic and for the elderly, disabled, or those out of town,” however, the court
concluded that these concerns are not “the specific evils the Twenty-Fourth
Amendment was meant to address.” 6 Plaintiffs appealed.
6
The district court heard argument on USPS’s policy of informing its employees to
deliver election mail with insufficient or no postage, but it did not dismiss the case on this
ground because it:
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II. Standard of Review
“We review de novo the [d]istrict [c]ourt’s order dismissing [Plaintiffs’]
complaint for failure to state a claim.” Estrada v. Becker, 917 F.3d 1298, 1302
(11th Cir. 2019). “We assume the factual allegations of the complaint are true, and
we construe them in the light most favorable to appellants. We do not assume that
any legal conclusions are true.” Id. (internal citation omitted). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
was not presented with a certified copy of the policy, . . . did not receive any
evidence about the statewide compliance rate with this policy, and . . . heard
credible testimony that Plaintiff Black Voters Matter Fund was concerned that
presenting this option to voters would run the risk of confusion or otherwise harm
its credibility.
The Defendants urge us on appeal to affirm the district court’s dismissal of this case based on
USPS’s policy, but we decline to do so because the USPS policy does not resolve the issues in
this appeal. The USPS policy is not, as the Defendants frame it, a policy that requires delivery of
absentee ballots without postage. Rather, the policy simply says that “Postal Service employees
are instructed” that absentee ballots containing insufficient or no postage should not be “returned
to the voter for additional postage.” United States Postal Service, 2014 Election and Political
Mail Update, Postal Bulletin 22391 (June 12, 2014), https://about.usps.com/postal-
bulletin/2014/pb22391/html/kit.htm. Because, as the district court noted, there is no evidence
that USPS employees routinely abide by this instruction, the policy does not conclusively resolve
the issues in this case.
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III. Discussion
The Plaintiffs argue on appeal that the district court erred in dismissing their
claims because they stated a valid claim under both the Twenty-Fourth
Amendment and the Fourteenth Amendment’s Equal Protection Clause.
A. Twenty-Fourth Amendment Claim
The Twenty-Fourth Amendment to the United States Constitution, ratified in
1964, provides:
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.
U.S. Const. amend. XXIV, § 1.
The Plaintiffs argue that Georgia’s statutory framework for absentee voting
by mail violates the Twenty-Fourth Amendment because postal fees are a “tax,”
and by not paying for postage, Georgia “abridges” the electorate’s right to vote “by
reason of” their “failure to pay” that tax.
We must first determine whether the requirement that an absentee voter pay
for postage is, in fact, a “poll tax or other tax” that abridges Georgia voters’ right
to vote in federal elections. Harman v. Forssenius, 380 U.S. 528, 540 (1965)
(“[N]o State [can] condition the federal franchise upon payment of a poll tax.”).
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Because paying for postage on a mail-in ballot is not a tax, Plaintiffs did not state a
claim for a violation of the Twenty-Fourth Amendment.
While determining the outer parameters of what constitutes a “tax” is
difficult in some cases, the term indisputably includes a “monetary exaction[]
imposed by the government.” Jones v. Governor of Fla., 975 F.3d 1016, 1037
(11th Cir. 2020) (en banc); see id. at 1038–39 (analyzing the distinction between a
penalty and a tax); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 561–74
(2012) (determining whether the Patient Protection and Affordable Care Act of
2010’s individual mandate fell under Congress’s taxing power); United States v.
La Franca, 282 U.S. 568, 572 (1931) (defining a “tax” as “an enforced
contribution to provide for the support of government”); Black’s Law Dictionary
1628 (4th ed. 1951) (defining “tax” as “to enact or declare that a pecuniary
contribution shall be made by the persons liable, for the support of the
government”). The novel theory that Plaintiffs ask us to adopt—that Georgia
imposes a “tax” by not paying for a service (postage) to assist voters who choose to
vote through the absentee process and then choose to return their ballot by mail—
simply does not hold water.
Georgia voters, without paying any money, have the option to vote in
person, bring their absentee ballot to the county election office, or drop their ballot
in a county drop box. O.C.G.A § 21-2-385. Further, even those voters who choose
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to mail in their absentee ballots buy postage from the United States Postal Service
and the proceeds from postage sales are paid to USPS—not the state of Georgia—
to account for the costs associated with delivering the mail. 39 U.S.C. § 3622(c);
see also 39 U.S.C. § 101(d) (“Postal rates shall be established to apportion the
costs of all postal operations to all users of the mail on a fair and equitable basis.”).
These voters are buying a service (the delivery of their mail) from USPS, and
Georgia does not receive any money from those sales. Nat’l Fed’n of Indep. Bus.,
567 U.S. at 564 (“[T]he essential feature of any tax” is that “[i]t produces at least
some revenue for the Government.”).7
The Plaintiffs, citing our en banc decision in Jones, repeatedly assert—in
briefing and at oral argument—that postal fees must be a “tax” because they are
not a “penalty.” The Plaintiffs’ argument plainly misrepresents our language in
Jones. In Jones, we said “if a government exaction is a penalty, it is not a tax.”
975 F.3d at 1038 (emphasis added). The Plaintiffs say we said, however, that “if a
government exaction is not a penalty, it is a tax.” The Plaintiffs’ misquote of Jones
7
Plaintiffs argue that it makes no difference that Georgia is not receiving any revenue
from the postage sales because USPS—a federal government entity—is. They suggest Georgia’s
framework is a poll tax “regardless of whether Defendants condition the right to vote on the
payment of a tax to Defendants, the United States, or some other governmental entity.” Even if
Plaintiffs’ novel theory that a state could violate the Twenty-Fourth Amendment by requiring the
payment of a tax to a different governmental entity held true, Georgia’s statute allowing absentee
voting by mail still is not a “tax” because (1) Georgia is not compelling any voter to buy postage,
and (2) those voters who choose to buy postage are paying for a service—the delivery of their
mail—rather than being compelled to contribute “to provide for the support of government.” La
Franca, 282 U.S. at 572.
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implies (and Plaintiffs repeatedly assert) that every payment a citizen makes to the
government falls into one of two buckets: penalty or tax. We did not say this in
Jones, and it is clearly not the case. While the cost of postage “is not a ‘penalty’ to
punish unlawful behavior,” that by no means automatically renders it a tax. The
Plaintiffs’ misquote of Jones is not only incorrect and disingenuous—it is
completely illogical.
The premise underlying Plaintiffs’ argument—that any payment a citizen
makes to the government must be either a penalty or a tax—is demonstrably false
because some payments that citizens make to the government are certainly neither
penalties nor taxes. For instance, a citizen who receives electricity from the
Tennessee Valley Authority is not being penalized or taxed when she pays her
monthly electricity bill. Similarly, a citizen who hands over money to ride Amtrak
is not paying a penalty or a tax, but a fare. See Empress Casino Joliet Corp. v.
Balmoral Racing Club, Inc., 651 F.3d 722, 730 (7th Cir. 2011) (en banc) (“Fees for
products (people buy electricity from public utilities) and bona fide user fees (a toll
for crossing a bridge, for example) are not ‘taxes’ in either lay or legal lingo.”).
And a citizen who pays the government a fee to enter a state park or who buys a
souvenir at the gift shop on his way out is not paying a penalty or a tax, but an
entry fee or a purchase price. See Hill v. Kemp, 478 F.3d 1236, 1246 (10th Cir.
2007) (Gorsuch, J.) (contrasting a “classic tax” with a “classic fee” which “might
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be an entry charge imposed by a state park authority to regulate park usage and
support only the upkeep of the park”); ACLU of Tenn. v. Bredesen, 441 F.3d 370,
374 (6th Cir. 2006) (noting that “the purchase of government bonds, or the
purchase of a souvenir at a state park gift store” are “purchase payments [that] can
hardly be termed ‘taxes’ as opposed to ordinary payments on voluntary contracts”).
In each of these instances, and many more, the citizen pays the government for a
good or service, just as those who buy stamps are paying the government for its
service in delivering the envelopes to which they attach those stamps. See Thomas
Cooley, Treatise on the Law of Taxation 5 (3d ed. 1903) (“Charges for services
rendered, or for conveniences furnished, are in no sense taxes.”). 8
The Plaintiffs’ Twenty-Fourth Amendment argument fails because the cost
of a postage stamp in this context is neither a penalty nor a tax but is the cost of a
8
This understanding of the distinction between a tax and other forms of payment to the
government remains true in the Twenty-Fourth Amendment context. At the time of the
Amendment’s ratification, in 1964, it was widely known, established, and understood that
payments to the government for goods and services were not a “tax.” That recognition was
engrained in federal law. See, e.g., Packet Co. v. Keokuk, 95 U.S. 80, 84 (1877) (“But a charge
for services rendered or for conveniences provided is in no sense a tax or a duty.”). It was also
established in the law of many states. See, e.g., Leggett v. Mo. State Life Ins. Co., 342 S.W.2d
833, 875 (Mo. 1960) (en banc) (“Fees or charges prescribed by law to be paid by certain
individuals to public officers for services rendered in connection with a specific purpose
ordinarily are not taxes . . . .”); Gunby v. Yates, 102 S.E.2d 548, 550–51 (Ga. 1958) (“As a
general rule, fees prescribed for public officers are not taxes but compensation for particular
services, unless the object and purpose of the charge is to provide general revenue rather than
compensation for services rendered.”); Holman v. City of Dierks, 233 S.W.2d 392, 393 (Ark.
1950) (“While the ordinance refers to this levy as a tax, it is actually not a tax but a charge for
services to be rendered. The city proposes to spray the property of its citizens and to charge the
cost of this operation against those who receive its benefits. Such a fee for the performance of a
service is not taxation.”).
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service—voters can pay money to have a postal carrier transport their ballot to the
county election office instead of dropping it off themselves. While the term “tax”
may be “broad,” it, at a minimum, requires a “monetary exaction[] imposed by the
government.” Jones, 975 F.3d at 1037. Plaintiffs have failed to allege such an
exaction in this case, and thus the district court properly dismissed their Twenty-
Fourth Amendment claim. 9
B. Equal Protection Clause Claim
The Equal Protection Clause provides that no “State” shall “deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. Because the Twenty-Fourth Amendment only applies to federal
elections, the Supreme Court, in Harper v. Virginia State Board of Elections,
analyzed the constitutionality of a poll tax in a state election under the Equal
Protection Clause. 383 U.S. 663, 666 (1966). There, the Supreme Court held that
a state violates the Equal Protection Clause “whenever it makes the affluence of
the voter or payment of any fee an electoral standard.” Id.; Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181, 189 (2008) (plurality opinion) (“[U]nder the
standard applied in Harper, even rational restrictions on the right to vote are
invidious if they are unrelated to voter qualifications.”); Jones, 975 F.3d at 1030–
9
Because we conclude that Georgia has not imposed a “tax,” we need not reach the
Plaintiffs’ arguments concerning whether Georgia’s absentee voting framework “abridges” the
right to vote “by reason of” a voter’s failure to pay a tax.
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31. In Harper, the Court considered the constitutionality of Virginia’s $1.50 poll
tax imposed on voters in a state election. The Court explained that the Equal
Protection Clause “restrains the States from fixing voter qualifications which
invidiously discriminate.” 383 U.S. at 666. Because poll taxes bear “no relation”
to voter qualifications, the Court concluded that Virginia had “introduce[d] a
capricious or irrelevant factor” by requiring voters to pay a $1.50 poll tax and
invalidated the tax. Id. at 666, 668.
The Plaintiffs argue that they stated a valid Equal Protection Clause claim
under Harper because Georgia’s decision not to pay for postage amounts to a poll
tax or fee that is not related to a voter’s qualifications and discriminates against
persons who do not vote in person. This argument fails because Georgia has not
made the “affluence of the voter or payment of any fee an electoral standard.” Id.
at 666. Georgia does not require voters to pay a poll tax or fee as part of their
qualifications to be eligible to vote, so it has not made the payment of any fee or
poll tax an “electoral standard.” Id. at 666–70.
Similarly, to the extent the Plaintiffs ask us to analyze their Equal Protection
Clause claim as discriminating against different types of absentee voters, that
argument likewise fails. The Plaintiffs argue that they have a statutory “right” to
vote absentee by mail and Georgia’s absentee voting framework is
unconstitutionally discriminating against absentee-by-mail voters for their failure
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to pay postage fees. The Plaintiffs rely on the Supreme Court’s decision in
American Party of Texas v. White, 415 U.S. 767 (1974), to support their argument.
In White, the Supreme Court—relying on its decision in O’Brien v. Skinner—
recited the proposition that “permitting absentee voting by some classes of voters
and denying the privilege to other classes of otherwise qualified voters in similar
circumstances, without affording a comparable alternative means to vote, is an
arbitrary discrimination violative of the Equal Protection Clause.” 415 U.S. at 795
(citing O’Brien v. Skinner, 414 U.S. 524, 529 (1974)).
But White is inapplicable here. Georgia’s absentee voting framework is not
the type of “arbitrary discrimination violative of the Equal Protection Clause” at
issue in White and O’Brien because Georgia is not denying the right to vote to any
voters. Accordingly, we reject the Plaintiffs’ argument that because Georgia has
given voters the option to mail in absentee ballots, O.C.G.A. § 21-2-385, it is
discriminating against various groups of absentee voters. See Brnovich v.
Democratic Nat’l Comm., 141 S. Ct. 2321, 2338 (2021) (“After all, every voting
rule imposes a burden of some sort. Voting takes time and, for almost everyone,
some travel, even if only to a nearby mailbox.”); see also Greater Birmingham
Ministries v. Sec’y of State for State of Ala., 992 F.3d 1299, 1335 (11th Cir. 2021)
(explaining, in a different context, that giving a voter an additional option to
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accomplish a prerequisite to voting “actually increases the opportunities” for voters
to cast ballots rather than constituting an impermissible voting test or device).
* * *
While voting often involves incidental costs like transportation, parking,
child care, taking time off work, and—for those who choose to vote absentee by
mail—the cost of a postage stamp, those incidental costs do not mean that Georgia
has imposed an unconstitutional poll tax or fee on its voters.10 Accordingly, we
affirm the district court’s dismissal of Plaintiffs’ claims.
AFFIRMED.
10
We note that the Plaintiffs’ claims border on the frivolous. At this time, however, we
are not imposing sanctions.
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