Why did the 24th Amendment Only Ban Poll Taxes In Federal, and not State Elections?

October 25th, 2012

The 24th Amendment, ratified in 1964, provides:

Section 1. 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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Why does it only apply to presidential or congressional elections? Why not state elections?

In Harman v. Forssenius (1965), the Supreme Court addressed a Virginia law that, in anticipation of the 24th Amendment, changed the voting requirements for state elections and federal elections:

Reaching the merits, it is important to emphasize that the question presented is not whether it would be within a State’s power to abolish entirely the poll tax and require all voters — state and federal — to file annually a certificate of residence. Rather, the issue here is whether the State of Virginia may constitutionally confront the federal voter with a requirement that he either pay the customary poll taxes as required for state elections or file a certificate of residence. We conclude that this requirement constitutes an abridgment of the right to vote in federal elections in contravention of the Twenty-fourth Amendment.

The court’s opinion here only discusses federal election, but has to look the other way with respect to state elections.

Today, this is largely a moot issue. First, the Voting Rights Act of 1965 made all poll taxes in pre-cleared jurisdictions spelled an end to poll taxes. Second, the Supreme Court in Harper v. Virginia State Board of Elections (1966) held that all poll taxes were unconstitutional under the Equal Protection Clause–not the 24th Amendment. Today, any potential poll tax would thus be viewed under the 14th Amendment, rather than the more-obvious 24th Amendment. Justice Douglas’s opinion doesn’t even mention the 24th Amendment ratified two years earlier. I gather the living constitution doesn’t much care for the actual Constitution even when it is directly on point.

But,  why was it only limited to federal elections?

Bruce Ackerman and Jennifer Nou have a wonderful argument in the Northwestern Law Review, CANONIZING THE CIVIL RIGHTS REVOLUTION: THE PEOPLE AND THE POLL TAX, that explores the history of the 24th Amendment.

I could not find a direct answer to my question, though one debate subsequent to the ratification of the 24th amendment is relevant–could Congress ban poll taxes in state elections via Section 5 powers, or must it pass an Amendment. In this cooloquy, Attorney General Katzebach in 1965 suggests that a statute could not accomplish the abolition of poll taxes in state elections.


The Chairman: As you know, we have a constitutional amendment which abolishes payment of poll taxes as a condition precedent in Federal elections? Do you believe that poll taxes should be abolished even in State elections . . .?
Mr. Katzenbach: Yes; I would like to get rid of poll taxes.
The Chairman: Can we do this by statute without a constitutional amendment?
Mr. Katzenbach: I think it is very difficult, Mr. Chairman, to do it by statute. There is presently pending in the Supreme Court a case [Harper] which the Supreme Court will hear at its next session and may do that job. A constitutional argument can be made that the poll tax, as a condition precedent to voting, is a restriction against voting which is unwarranted by the Constitution, whether applied discriminatorily or not. That argument is being made to the *99 Court. Of course, if the Court should come to the conclusion, as I think it might, then poll taxes would be eliminated at State elections.
According to Katzenbach, Congress was just looking for trouble if it tried to abolish the poll tax. It should simply stand on the sidelines and leave it to the Court to decide whether to overrule Breedlove in Harper.

This dialogue suggests that incrementalism was the desired route, and the supporters sought to start with federal elections, and then move onto state elections. Ackerman and Nou wrote:

There could be no denying that the abolition of poll taxes in state elections represented a larger, not smaller, change in traditional constitutional understandings than that contemplated by the Twenty-Fourth Amendment. But Lyndon Johnson could not credibly proclaim that “the time for waiting is gone” if the fate of state poll taxes had been consigned to the tender mercies of Article Five. If the Voting Rights Act was to express the rising American commitment to bring a decisive end to Jim Crow, the landmark statute would have to announce the end of all of the traditional exclusionary practices of the South.

I’ll dig deeper on this.

One fascinating element of the history is that the NAACP opposed the 24th Amendment! Why? The NAACP did not want to set the precedent of requiring a constitutional amendment as the path to promote civil rights. Rather, they wanted to rely on Section 5 powers to pass civil rights statues–much easier to ratify.

Another interesting tidbit. Texas ratified in the 24th Amendment in 2009. Better late than never I suppose, in light of the fact that Mississippi specifically rejected it, and Arizona, Arkansas, Georgia, Louisiana, Oklahoma, South Carolina, and Wyoming (?) have never ratified it.

H/T Rabbi Chaim Lazaroff for posing this question.