United States v. State of Alabama

JOHNSON, District Judge

(specially concurring):

The evidence in this case fully justifies and requires a declaration that the Alabama poll tax in its original purpose and effect and in its continued application and effect disfranchised and disfranchises Negroes in the exercise of their right to vote; the tax clearly violates the Fifteenth Amendment. I do, therefore, join with Judge Rives in so holding. However, in my opinion, the fundamental issue in this case and one that should be decided prior to reaching the Fifteenth Amendment issue is whether any tax levied on voting and carrying the sanction of disfranchisement for nonpayment is constitutionally permissible under the due process clause of the Fourteenth Amendment. I am of the firm opinon that it is not. The poll tax is invalid in its very conception; the principle of a tax on the right to vote is constitutionally indefensible.

It is generally recognized, and the parties to this suit do not contend otherwise, that the State may determine qualifications on the right to vote. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 , 79 S.Ct. 985 , 3 L.Ed.2d 1072 (1959). Moreover, there is no disagreement that when a person becomes qualified he has a constitutional right to cast his vote and have it counted. Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964); it must be determined, therefore, what the term “qualification” means; that is, what are the constitutional limitations placed on the State’s power to determine “qualifications” for the exercise of the franchise.

An early decision has suggested, in dictum, that “the state may condition suffrage as it deems appropriate.” Breedlove v. Suttles, 302 U.S. 277, 283 , 58 S.Ct. 205, 208 , 82 L.Ed. 252 (1937). The Court in Breedlove — not resolving the due process issue presented in this case — held only that the Georgia poll tax requirement did not violate the equal protection clause or the privileges and immunities clause of the Fourteenth Amendment. However, since Breedlove was decided^ — -and in particular during the last decade — the right to vote has received greater recognition by the courts and legislatures alike. The reapportionment cases 1 and the recent decision of Carrington v. Rash, 380 U.S. 89 , 85 S.Ct. 775 , 13 L.Ed.2d 675 (1965), require a recognition that today voting is the most important means of participating in our democratic society. Recognition of this is implicit in the declaration of the Supreme Court in Reynolds v. Sims, supra, that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” 377 U.S. at 555 , 84 S.Ct. at 1378 . There is similar language in Wesberry v. Sanders, supra:

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which * * * we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” 376 U.S. at 17, 84 S.Ct. at 535 .

The contention that the reapportionment decisions are wholly inapplicable for our purposes here, since in those cases only qualified voters were before the Court, ignores the clear thrust and intendment of those decisions. Those *106 decisions clearly represent judicial cognizance of the fundamental role the exercise of the franchise plays in our system of representative government. Moreover, in Carrington v. Rash, supra, in which the parties before the Court were not qualified voters under the laws of the State of Texas, the Court stated, "We deal here with matters close to the core of our constitutional system.” 380 U.S. at 96 , 85 S.Ct. at 780 .

I, therefore, am in full agreement with the statement of the Court in the recent Texas decision:

“[I]t cannot be doubted that the right to vote is one of the fundamental personal rights included within the concept of liberty as protected by the due process clause.” 2

It is important to recognize that the Supreme Court has only recently determined that the Fourteenth Amendment limits the power of the states to fix voting requirements for state elections. Carrington v. Rash, supra; Louisiana v. United States, 380 U.S. 145 , 85 S.Ct. 817 , 13 L.Ed.2d 709 (1965); Schnell v. Davis, 336 U.S. 933 , 69 S.Ct. 749 , 93 L.Ed. 1093 (1949). Carrington and Louisiana were certainly qualifications of the dictum of Breedlove which had already been qualified by Schnell and Lassiter v. Northampton County Bd. of Elections, supra. In Lassiter, the Court applied a due process test in examining the reasonableness of the State’s limitations on the exercise of the franchise:

“We come then to the question whether a State may consistently with the Fourteenth and Seventeenth Amendments apply a literacy test to all voters irrespective of race or color.” 360 U.S. at 50 , 79 S.Ct. at 989 . (Emphasis added.)

Having then reviewed the decisions upon which Breedlove relied, the Court, in a significant passage, said:

“We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record * * * are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.” 360 U.S. at 51 , 79 S.Ct. at 990 . (Emphasis added.)

Therefore, it must be concluded that the states have the power to impose only reasonable limitations on the exercise of the franchise, and that any limitation or condition on the exercise of that right which does not bear a reasonable relationship to the intelligent exercise of the ballot is not a “qualification” and, as such, is not authorized by Art. I, § 2, but, on the contrary, is violative of the due process clause of the Fourteenth Amendment. It must always' be kept in mind that the power of a state to determine qualifications to vote must be exercised precisely and circumspectly so as to limit the franchise no more than is clearly necessary to'effectuate the state’s legitimate interest.

A poll tax limitation on the exercise of the franchise is not such a reasonable limitation, since such a tax bears no reasonable relationship to the intelligent exercise of the vote. As previously stated, it is generally recognized that the states have a wide “jurisdiction” to determine voter qualifications. Lassiter v. Northampton County Bd. of Elections, supra. For instance, a state may deny the franchise to minors, convicted criminals, nonresidents and to those who fail or refuse to register. In all such cases there must be at least a reasonable relation between the measure limiting the franchise and the goal of representative government— government by officials elected by the state’s responsible citizens. There is no such relation in the case of the poll tax; it is nothing more than a license on the right of citizens who are otherwise qualified to participate in our democratic system.

*107 The only argument advanced in justification of the poll tax as a method for the regulation of the exercise of the franchise in a manner consistent with the goal of representative government worthy of extensive comment 3 is that it “limit[s] the right of suffrage to those who * * * [take] sufficient interest in the affairs of the State to qualify themselves to vote.” Campbell v. Goode, 172 Va. 463, 467 , 2 S.E.2d 456, 457 . A similar notion has been expressed by the Supreme Court of Alabama. See Davis v. Teague, 220 Ala. 309 , 125 So. 51 , appeal dismissed, 281 U.S. 695 , 50 S.Ct. 248 , 74 L.Ed. 1123 (1929). But the contention that the poll tax disfrancises the shiftless and conduces to voting by the civic-minded does not withstand analysis. There is no procedure for the assessment of the poll tax in Alabama. The burden is on the individual citizen to come forward and pay the tax by February 1 — ■ more than nine months in advance of the general election. Moreover, the tax is collected only during the four months prior to February 1 — a period in which political activity is relatively quiescent. Both the Court, 4 as well as Congress, 5 have recognized that these requirements place on a person who desires to vote the burden of taking the initiative and paying his poll tax. Moreover, the majority of the electorate is exempt from payment of poll taxes because of age, military service or other reasons granted by statute. If voter interest is its rationale or it is a test of good citizenship, there is clearly no rational basis for exempting persons over the age of forty-five. Furthermore, the fact that anyone — not just the potential voter — may pay indicates that the State does not use the tax as a standard to measure the intelligent and interested exercise of the franchise. 6

*108 Nor can the poll tax be defended on the ground that it provides a legitimate method of raising money for public education or other lawful purposes. The State itself does not regard the poll tax in this light. The tax is not zealously enforced like other tax measures — the State has no legal authority to collect the tax if a person chooses not to vote. Moreover, even if the State — in this area — had a legitimate interest in raising revenue by taxation, this does not mean that it is justified in this method of collection.

The imposition of a poll tax impedes and deters the exercise of the franchise rather than promotes any legitimate state interest by making its exercise costly. Harman v. Forssenius, 380 U.S. 528 , 85 S.Ct. 1177 (1965). Just as the imposition of a tax to attend church, or a tax on the right to stand up and voice one’s views on the events of the day would be unconstitutional regulations, so too is a similar imposition on the right to vote. 7 In short, financial ability has no place in a test of voting eligibility and is irrelevant to a determination of who is qualified to vote.

For these reasons, the poll tax as a license tax on voting is violative of the due process clause of the Fourteenth Amendment and is therefore constitutionally invalid.

. Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633 , 84 S.Ct. 1418 , 12 L.Ed.2d 568 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 , 84 S.Ct. 1429 , 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678 , 84 S.Ct. 1441 , 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695 , 84 S.Ct. 1449 , 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 , 84 S.Ct. 1459 , 12 L.Ed.2d 632 (1964). See also Gray v. Sanders, 372 U.S. 368 , 83 S.Ct. 801 , 9 L.Ed.2d 821 (1963) ; Wesberry v. Sanders, 376 U.S. 1 , 84 S.Ct. 526 , 11 L.Ed. 2d 481 (1964).

. United States v. Texas et al., D.C., 252 F.Supp. 234 (February 9,1966),

. The six factors which the state asserts justify the imposition of its poll tax are: “(1) Its payment is a test of good citizenship * * * (2) It keeps out those unworthy voters who have no interest in public affairs. (3) Those who are too inert to pay the small fee required are kept out. (4) The voter’s interest in protecting the ballot * * *. (5) One’s concern for public education for which the poll tax is levied. (6) It tests the citizens’ interest in the conduct of elections.” Brief of State of Alabama, pp. 3-4. Each of these does not need to be specifically dealt with since the principles developed infra have general applicability.

. Harman v. Forssenius, 380 U.S. 528 , 85 S.Ct. 1177 , 14 L.Ed.2d 50 (1965).

. “ * * * Nothing in the payment of a poll tax evidences one’s ‘qualification’ to vote. A man with a million dollars in the bank cannot vote if he fails to pay the tax; a man who steals a couple of dollars to pay the tax has met this condition. A poll tax has nothing in common with true ‘qualifications’: Age (reflecting maturity of judgment) ; residency (reflecting knowledge of local conditions), etc. Once it is demonstrated that the poll tax cannot be justified as a qualification for voting fixed by the States under article I of the Constitution, good cause for this restriction on the right to vote is hard to find. No one seriously contends that it is a revenue measure. Forty-six States deem it unwise. * * * In their administration, no less than by their arbitrary restriction, these exactions lend themselves to notorious abuse. Some poll taxes must be paid in advance, by a specified date — or the right to vote lapses; cumulative charges have to be satisfied, perhaps pricing the vote out of market for the indigent applicant. Surely, in the light of its recent expressions (see, e. g., Harman v. Forssenius, 85 S.Ct. 1177 , 380 U.S. 528 , October term, 1964 (decided Apr. 27, 1965)), the Supreme Court can be expected to recognize and strike down these arbitrary restrictions on the right to vote, particularly so when Congress has determined that their elimination is appropriate to the safeguard of the rights of citizens under the 14th and 15th amendments.” H.Rep.No.439, 89th Congr., 1st Sess., p. 22, U.S.Code Cong. & Admin.News 1965, p. 2453.

These congressional findings are “entitled at least to great respect.” Block v. Hirsh, 256 U.S. 135 , 41 S.Ct. 458 , 65 L.Ed. 865 (1921).

. In the oral arguments before this Court, one of the attorneys for the State of Alabama likened the poll tax to a “rough intelligence test”:

“JUDGE JOHNSON: In what respect is the poll tax or the payment of poll tax a qualification to vote * * *?

*108 “MR. GARRETT: Well, it shows an interest in the electoral system, it shows that they have got enough interest to mail it to the Tax Collector or go down to his office and pay it, it shows — it is a — sort of rough intelligence test, it is sort of a rough one, it is real rough.

I do not think so. I am in agreement with the Court in United States v. Texas, supra:

“ * * * The ignorant and incompetent spouse, parent or child may vote if some member of his family remembers to purchase a poll tax for him. Anyone who becomes 21 years old after the beginning of the tax year but before the election or who is over 60 years old may vote without paying a poll tax fee or without showing the intelligence or competence necessary to accumulate $1.75 in one year. Thus, it is obvious that the poll tax in Texas is not a ‘test’ of the intelligence or the competence of potential voters.” (Footnotes omitted.)

. In Jones v. City of Opelika, 316 U.S. 584 , 62 S.Ct. 1231 , 86 L.Ed. 1691 (1942), the Court sustained a municipal ordinance which exacted a fee for the privilege of distributing tracts or other printed materials on public streets. A year later the judgment was vacated, 319 U.S. 103 , 63 S.Ct. 890 , 87 L.Ed. 1290 (1943), and the ordinance held invalid on the strength of Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870 , 87 L.Ed. 1292 (1943), which upset a similar Pennsylvania requirement. Follet v. Town of McCormick, 321 U.S. 573 , 64 S.Ct. 717 , 88 L.Ed. 938 (1944), annulled a South Carolina ordinance similar to that in the Murdock case. The lesson to be gleaned from these cases is clear: “The exaction of a tax as a condition to the exercise of the great liberties guaranteed by the First Amendment is as obnoxious [citing Grosjean v. American Press Co., 297 U.S. 233 , 516 S.Ct. 444 , 80 L.Ed. 660 (1936) and Murdock, supra] as the imposition of a censorship or a previous restraint. Near v. [State of] Minnesota [ex rel. Olson], 283 U.S. 697 , [ 51 S.Ct. 625 , 75 L.Ed. 1357 ]. For, to repeat, ‘the power to tax the exercise of a privilege is the power to control or suppress its enjoyment.’ Murdock v. [Commonwealth of] Pennsylvania, supra, [319 U.S.] p. 112 [63 S.Ct. page 874].” Follet v. Town of McCormick, supra, 321 U.S. at 577 , 64 S.Ct. at 719 .