Harper v. Virginia Board of Elections


No. 48 Argued: January 25-26, 1966 --- Decided: March 24, 1966 [*]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.

These are suits by Virginia residents to have declared unconstitutional Virginia's poll tax. [n1] The three-judge [p665] District Court, feeling bound by our decision in Breedlove v. Suttles, 302 U.S. 277, dismissed the complaint. See 240 F.Supp. 270. The cases came here on appeal and we noted probable jurisdiction. 380 U.S. 930, 382 U.S. 806.

While the right to vote in federal elections is conferred by Art. I, § 2, of the Constitution (United States v. Classic, 313 U.S. 299, 314-315), the right to vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment, and that it may not constitutionally be conditioned upon the payment of a tax or fee. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 113. [n2] We do not stop to canvass the relation between voting and political expression. For it is enough to say that, once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage

is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.

Lassiter v. Northampton Election Board, 360 U.S. 45, 51. We were speaking there of a state literacy test which we sustained, warning that the result would be different if a literacy test, fair on its face, were used to discriminate [p666] against a class. [n3] Id. at 53. But the Lassiter case does not govern the result here, because, unlike a poll tax, the "ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot." Id. at 51.

We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. [n4] Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. Thus, without questioning the power of a State to impose reasonable residence restrictions on the availability of the ballot (see Pope v. Williams, 193 U.S. 621), we [p667] held in Carrington v. Rash, 380 U.S. 89, that a State may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services.

By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.

Id. at 96. And see Louisiana v. United States, 380 U.S. 145. Previously we had said that neither homesite nor occupation "affords a permissible basis for distinguishing between qualified voters within the State." Gray v. Sanders, 372 U.S. 368, 380. We think the same must be true of requirements of wealth or affluence or payment of a fee.

Long ago, in Yick Wo v. Hopkins, 118 U.S. 356, 370, the Court referred to "the political franchise of voting" as a "fundamental political right, because preservative of all rights." Recently, in 118 U.S. 356, 370, the Court referred to "the political franchise of voting" as a "fundamental political right, because preservative of all rights." Recently, in Reynolds v. Sims, 377 U.S. 533, 561-562, we said,

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.

There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded:

A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws, and not men. This is at the heart of Lincoln's vision of "government of the people, by the people, [and] for the people." The Equal Protection Clause [p668] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.

Id. at 568.

We say the same whether 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.

It is argued that a State may exact fees from citizens for many different kinds of licenses; that, if it can demand from all an equal fee for a driver's license, [n5] it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race (Korematsu v. United States, 323 U.S. 214, 216), are traditionally disfavored. See Edwards v. California, 314 U.S. 160, 184-185 (Jackson, J., concurring); Griffin v. Illinois, 351 U.S. 12; Douglas v. California, 372 U.S. 353. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context -- that is, as a condition of obtaining a ballot -- the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U.S. 535, 541) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in [p669] Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation, and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." Id. at 283. To that extent the Breedlove case is overruled.

We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment "does not enact Mr. Herbert Spencer's Social Statics" (Lochner v. New York, 198 U.S. 45, 75). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. See Malloy v. Hogan, 378 U.S. 1, 5-6. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court, in 1896, held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson, 163 U.S. 537. Seven of the eight Justices then sitting subscribed to the Court's opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to a contemporary ear. [n6] When, in 1954 -- more than a half-century later -- we repudiated the "separate-but-equal" doctrine of Plessy [p670] as respects public education [n7] we stated:

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.

Brown v. Board of Education, 347 U.S. 483, 492.

In a recent searching reexamination of the Equal Protection Clause, we held, as already noted, that "the opportunity for equal participation by all voters in the election of state legislators" is required. [n8] Reynolds v. Sims, supra, at 566. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like that, in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.

We have long been mindful that, where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541; Reynolds v. Sims, 377 U.S. 533, 561-562; Carrington v. Rash, supra; Baxstrom v. Herold, ante p. 107; Cox v. Louisiana, 379 U.S. 536, 580-581 (BLACK, J., concurring).

Those principles apply here. For, to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.


* Together with No. 655, Butts v. Harrison, Governor of Virginia, et al., also on appeal from the same court.

1. Section 173 of Virginia's Constitution directs the General Assembly to levy an annual poll tax not exceeding $1.50 on every resident of the State 21 years of age and over (with exceptions not relevant here). One dollar of the tax is to be used by state officials "exclusively in aid of the public free schools," and the remainder is to be returned to the counties for general purposes. Section 18 of the Constitution includes payment of poll taxes as a precondition for voting. Section 20 provides that a person must "personally" pay all state poll taxes for the three years preceding the year in which he applies for registration. By § 21, the poll tax must be paid at least six months prior to the election in which the voter seeks to vote. Since the time for election of state officials varies (Va.Code §§ 2136, 2160 -- 2168; id. at § 222), the six months' deadline will vary, election from election. The poll tax is often assessed along with the personal property tax. Those who do not pay a personal property tax are not assessed for a poll tax, it being their responsibility to take the initiative and request to be assessed. Va.Code § 58-1163. Enforcement of poll taxes takes the form of disenfranchisement of those who do not pay, § 22 of the Virginia Constitution providing that collection of delinquent poll taxes for a particular year may not be enforced by legal proceedings until the tax for that year has become three years delinquent.

2. Judge Thornberry, speaking for the three-judge court which recently declared the Texas poll tax unconstitutional, said:

If the State of Texas placed a tax on the right to speak at the rate of one dollar and seventy-five cents per year, no court would hesitate to strike it down as a blatant infringement of the freedom of speech. Yet the poll tax as enforced in Texas is a tax on the equally important right to vote.

252 F.Supp. 234, 254 (decided February 9, 1966).

3. We recently held in Louisiana v. United States, 380 U.S. 145, that a literacy test which gave voting registrars "a virtually uncontrolled discretion as to who should vote and who should not" (id. at 150) had been used to deter Negroes from voting and accordingly we struck it down. While the "Virginia poll tax was born of a desire to disenfranchise the Negro" (Harman v. Forssenius, 380 U.S. 528, 543), we do not stop to determine whether on this record the Virginia tax in its modern setting serves the same end.

4. Only a handful of States today condition the franchise on the payment of a poll tax. Alabama (Ala.Const., §§ 178, 194, and Amendments 96 and 207; Ala.Code Tit. 17, § 12) and Texas (Tex.Const., Art. 6, § 2; Vernon's Ann.Stat., Election Code, Arts. 5.02, 5.09) each impose a poll tax of $1.50. Mississippi (Miss.Const., §§ 241, 243; Miss.Code §§ 3130, 3160, 3235) has a poll tax of $2. Vermont has recently eliminated the requirement that poll taxes be paid in order to vote. Act of Feb. 23, 1966, amending Vt.Stat.Ann. Tit. 24, § 701.

As already noted, note 2, supra, the Texas poll tax was recently declared unconstitutional by a three-judge United States District Court. United States v. Texas, 252 F.Supp. 234 (decided February 9, 1966). Likewise the Alabama tax. United States v. Alabama, 252 F. Supp. 95 (decided March 3, 1966.)

5. Maine has a poll tax (Maine Rev.Stat.Ann. Tit. 36, § 1381) which is not made a condition of voting; instead, its payment is a condition of obtaining a motor vehicle license (Maine Rev.Stat.Ann. Tit. 29, § 108) or a motor vehicle operator's license. Id. § 584.

6. E.g.,

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

163 U.S. at 551.

7. Segregated public transportation, approved in Plessy v. Ferguson, supra, was held unconstitutional in Gayle v. Browder, 352 U.S. 903 (per curiam).

8. Only MR. JUSTICE HARLAN dissented, while MR. JUSTICE CLARK and MR. JUSTICE STEWART each concurred on separate grounds.