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Hey, What About the 24th?The constitutional amendment about voting rights that the Supreme Court forgot.

By Bruce Ackerman and Jennifer Nou
Posted Friday, May 2, 2008, at 12:34 PM ET
Earl Warren. Click image to expand.

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.

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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.
Portrait of Earl Warren courtesy of Harvard Law School Library.
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