Slate's Bizbox
jurisprudence: The law, lawyers, and the court.

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

(Continued from page 1)

Justice John Paul Stevens spoke for the three swing justices. In contrast to Harman, he refused to strike down the exclusionary statute on its face. He chose to uphold the cumbersome Indiana procedure, leaving it to later lawsuits to establish that it unjustifiably burdened particular voters. Like all the other justices, Stevens reached his conclusion without recognizing that Harman's interpretation of the 24th Amendment provided a key precedent pointing to a clean-cut vindication of voting rights.

This sort of thing doesn't happen every day in the life of the court—indeed, we can't think of another case in which the justices utterly failed to address the most obviously relevant provision of the constitutional text. If they had squarely confronted the law and language of the 24th Amendment, there is a fair chance that Justices Stevens and Anthony Kennedy would have switched sides, creating a new majority for striking down the Indiana law.

This lapse is remarkable, but it would be a mistake to put the blame entirely on the current court. The erasure of the 24th Amendment is the result of an accident of history. Since the amendment as written applies only to federal elections, the ACLU brought Harper v. Virginia to the court in 1966, seeking to extend the ban on election taxes to state balloting as well. In an unpublished opinion, Justice Arthur Goldberg urged his colleagues to strike down the remaining state poll taxes, relying heavily on the 24th Amendment to reach his conclusion. But by the time the case was ready for final decision, Lyndon Johnson had persuaded Goldberg to leave the court and serve as ambassador to the United Nations in a vain effort to end the Vietnam War.

The job of writing Harper fell to Justice William O. Douglas, who—to put it mildly—was no legal craftsman. He entirely failed to mention the 24th Amendment in his characteristically activist opinion denouncing the poll tax.

Douglas' erasure haunted consideration of the Indiana case from the beginning. Following in his footsteps, the court of appeals failed to mention the 24th Amendment in its opinion upholding the Indiana law. This set the stage for the justices' wrong turn. Their failure is especially curious in light of the Roberts Court's increasing emphasis on the primacy of the written text in constitutional adjudication. If the 24th Amendment had been front and center, even conservative textualists like Antonin Scalia and Clarence Thomas would have been obliged to think again before ruling against voters' rights.

Fortunately, the entire issue will return to the court soon. Stevens' swing opinion opens the door to challenges after every close election, which is messy, but it also is an invitation to would-be voters to come back to court after Tuesday's primary and argue—in very concrete terms—that they have been unjustifiably excluded from the ballot box. This time around, the justices should finally recognize their obligation to confront Harman's declaration that the 24th Amendment does not merely forbid the "poll tax or other tax[es]" but also imposes a ban on "equivalent or milder substitute[s]."

Perhaps the majority will choose to turn its back on Harman and uphold the state's exclusionary law. But at the very least, the justices should provide Indianans, and the rest of us, with an explanation for their decision to trivialize a solemn constitutional amendment enacted only 44 years ago.

VIEW AS SINGLE PAGE
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
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.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES
Washington Post
The Washington Post
OPINIONS
Let the Oil Deals Flow
Raad Alkadiri | Congress should not interfere in the oil industry's contract negotiations with the Iraqi government.