This podcast accompanies the note A Modern Poll Tax, by Elizabeth Heckmann, J.D. 2022.

Transcript

Speakers: Taylor Graham, Elizabeth Heckmann

0:01

Although the 24th Amendment has received little attention since its ratification, the amendment may provide a basis for combat and unconstitutional votary enfranchisement schemes that condition the right to vote on money payments to the government.

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Welcome to the California Law Review podcast. Our goal is to provide an accessible and thought provoking overview of the scholarship we publish. Today, we will be discussing a modern poll tax using the 24th Amendment to challenge legal financial obligations as a condition to reenfranchisement, a student note by Elizabeth Heckman, a 2022 graduate of Berkeley Law and current law clerk for the honorable James cell nine in the Central District of California. Elizabeth, thank you so much for taking the time to talk with us today about your article. Thank you so much for having me. To begin with, can you give us a summary of your articles and main argument?

0:54

Yeah, so this article looks at one way that litigators can challenge felon reinvent tries and schemes in court, specifically through the lens of the 24th amendment. So big picture, people convicted of felonies typically lose many rights, including the right to vote in most states. Most of the states also provide a way for people to regain the right to vote.

1:17

And typically that way to regain the right to vote includes a requirement that they pay something called legal financial obligations as a satisfaction of the condition to become reenergized. And so this article explores whether this practice violates the 24th amendment's prohibition on poll taxes by requiring people to pay a sum of money to the government before being able to vote. What motivated you to write this article? So I took a class my second year of law school on election law with Professor in Asia at Berkeley Law, and we had to write a paper for the for the seminar. And I wanted to explore the intersection of criminal law and election law, specifically focusing on those laws in the South. I'm from the south. I'm from Arkansas. And so I started my research there, but didn't find any, anything that would work for as a paper in Arkansas. So I did a quick search in other other,

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you know, new new laws that were being passed or court cases that were happening in other southern states and settled on the string of court cases out of Florida. That became the basis of this note. Um, so I also wanted to sort of take a practical look at these cases. I know a lot of times, I personally find that legal scholarship can be sort of taken from an ivory tower view. And I wanted to take a very practical approach of how people how attorneys on the ground can use the 24th Amendment realistically in court to challenge these rain franchising schemes.

3:02

Could you provide a bit of background and tell us what a poll tax is and how poll taxes have been employed by states and addressed by the Supreme Court throughout our country's history? Sure. So with many of our laws in the United States, poll taxes came over from England. They originated based on the idea of property ownership as a prerequisite to voting. So essentially, a poll tax requires a tax or a payment of money to the government in order to be eligible to cast a ballot and participate in the franchise. So pull taxes, all but disappeared from state laws by the mid 19th century. But they came back up after the end of the Civil civil war and ratification of the 15th Amendment, in what I view as an attempt to use a colorblind method of disenfranchising newly freed black Americans. So it's still comported with the 15th Amendment, because it wasn't explicitly excluding people from the franchise based on race, but in effect, that's what it did.

4:01

And then early Supreme Court cases that dealt with poll taxes originally upheld them, because there was no constitutional amendment or federal law outlined then. And they they upheld them precisely for the reason that they didn't conflict with the 15th amendment. They didn't, you know, discriminate based on race. They didn't exclude people from a franchise based on race on their face, at least. And so because states have broad power to regulate and enforce regulation or elections, excuse me, the court upheld them in early Supreme Court cases. What is the 24th Amendment as interpreted by the Supreme Court's decisions in Harmon and Harper promise. So as a civil rights movement gained traction in specifically the southern United States, a senator from Florida ironically enough, because that's where the the series of cases that I explored came out of

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proposed the 24th Amendment, which on its face purported to

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To eliminate pull taxes in any variety, so the meme was actually passed pretty quickly

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on the text of the Amendment states, and I'm quoting here, that the right to vote, quote 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. So that's pretty wide ranging, right? It's it prohibits states from or the federal government from

5:31

denying or abridging the right to vote by failure to pay any poll tax or other tax. So right away, as you can imagine, some states in the South again started to try to circumvent this again in in a colorblind way, at least on the face of the law.

5:54

So in Virginia, the State offered voters a choice to either pay the poll tax or file a notarized certificate of residence with the county six months before each election and then present that certificate at the polling place before each election. And in the first and really the only Supreme Court case to explicitly explore poll taxes. Harmon B. Fresenius, the court found that this even though it wasn't explicitly a poll tax, it imposed a material requirement on voters. And the court held that the poll tax through the 24th Amendment is abolished absolutely as a prerequisite to voting and no equivalent or milder substitute may be imposed. So that's sort of if it's if the idea that, you know, the the language of the amendment is to be interpreted very broadly, it's supposed to be interpreted and applied on any sort of money payment to the government as a prerequisite to voting, meaning the courts language that no equivalent or mild or substitute of the poll tax may be imposed, I think is very significant. So shortly after that, the next year, the court took up Harper v. Virginia Board of Elections. And that case didn't explicitly deal with the 24th Amendment, it focused on the first and 14th amendment. But there are some principles that that I think, are really important here. And the court found in that case, the it was about a poll tax, in regard to state elections or requirement to pay money to the government and state elections. And so the court held there that the fundamental right to vote cannot be abridged based on one's inability to pay a fee to the government. So again, a poll tax, that's what we're talking about here. And the court held, I'm quoting to introduce wealth or payment of a fee as a measure of a voters qualifications introduced a capricious or irrelevant factor.

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So the court is really taking this idea seriously, you know, any sort of payment in order to access the franchise sort of, you know, really doing away with that idea of property ownership in England being a prerequisite to voting, really doing away with any sort of semblance of that is important to the court at this time. And the court further held in that case, and Harper, that making the affluence of the voter or payment of any fee and electoral standard is unconstitutional.

8:21

So it seems like pretty explicit language. And I guess before we turn to how the 11th circuit in the in the Jones litigation, which your node discusses, I wanted to step back and I wonder if you could tell us a bit about just what felon just disenfranchisement is and a little bit about that practices history in the United States. Yeah, so felon disenfranchisement is the term that we use to describe the idea of taking away a person's right to vote as a consequence of a criminal or specific felony conviction. So this practice has existed in the United States since its founding, again, carried over from England, and the court has to this day expressly permitted it so that case is Richardson V. Ramirez.

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So on its face, the idea of

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abridging or removing the right to vote because someone has been convicted of a felony is totally okay. According to Supreme Court, which, you know, I take issue with that on its face, but that wasn't the purpose of this note.

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So, you know, the idea of of that is

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because the states have so many broad powers to regulate elections, including the conditions they attach to how elections are handled when they happen who can vote.

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The Supreme Court has upheld those as long as they're the states are complying with other federal laws, including, you know, constitutional amendments, so obviously states can't prohibit people who are younger than 18 from voting because that would

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violates the 26th Amendment. But Richardson V Ramirez says that you can the state can

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temporarily or sometimes even permanently remove or take away the right to vote for people who are convicted of felonies. So, by the Civil War 24 states had felon disenfranchisement laws on the books and that number continues to grow during reconstruction and the Jim Crow eras.

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And today, the number of people who are affected by this is about 5 million, I think it's just over 5 million. And a disproportionate number of those people are black and brown, because of the way that mass incarceration affects those communities. And another thing I want to mention about about felon disenfranchisement here is just sort of the big picture of how this affects people's lives. You know, people coming out of prison, and reentering society often already feel other from their communities already feel sort of on the outside, and the continued prevention of their, you know, ability to participate in voting and choosing who is governing them can really contribute to this this sense of otherness and some studies have found that it can even lead to recidivism, so people recommitting crimes and falling back into the criminal legal system. So it affects more than just the ability to vote. It can affect people in in numerous ways.

11:35

That's really that's really important context. And just because this is, I guess, the main focus of your article, could you distinguish reinjure enfranchisement systems and tell us how legal financial obligations hinder that process? Yeah, so you know, once a person has been or once a state has chosen to disenfranchise people convicted of felonies, the state can then choose to reinforce and tries them after that. They are not required to,

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you know, the Richardson V. Ramirez, again allows states to strip people of the ability to vote if they have been convicted of a felony, if states choose to provide a path to Rhian franchise, and they can do that in whatever the way they want, again, as long as it complies with the Constitution.

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So that's that's one of the things that my note discusses and that is discussed to some extent in the Jones cases. Is is the idea that Okay, once you have been removed once the right to vote has been stripped from you. What does the state owe you after that? And the answer to that question is essentially, they the scheme to re enfranchise people the plan to read and franchise people has to comply with the Constitution. The attorneys for the state of Florida in JioFi, governor of Florida, which is the on Bonk 11th Circuit decision that I explored in this note, the State's Attorneys there tried to argue that because people convicted of felonies had been stripped to the right to vote, the right to vote as applied to those people had lost its fundamental nature and even the 11th circuit on bond decision which ended up rejecting the 24th Amendment argument

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that that on bonk, court rejected the state's argument on that front and they said no, even though you know, people have lost their ability to vote doesn't mean that the the the right to vote has lost its fundamental nature, somehow it's still a fundamental right to vote, you still have to comply with the Constitution. So you still can't condition the right to vote on payment of a poll tax or someone's race or someone's age or someone's gender.

13:48

Turning to Florida, what was the goal of Florida's amendment for?

13:53

Yeah, so I'm taking a step back for a second.

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You know, when I started researching this note,

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I stumbled upon Florida's amendment four as it pertained to the the series of cases. So Florida, used to have a system in place to read franchise people, and that they had to apply individually to a state board and get approval from from the state board. And depending on who the governor was at that time, at any given time, you know, the the requirements could change. Sometimes it took up to five years for people to get approved or denied for that matter.

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So Florida voters decided that they wanted to change that. And the concept of felon disenfranchisement in Florida I think is particularly cogent because Florida has the highest number of people who are disenfranchised due to a felony conviction in the country.

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Again, a disproportionate number of those are going to be black and Latinx

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And so the voters of Florida decided that they wanted to change and this this Scott started with a, you know, a couple people in a grassroots type movement. They got him at four on the ballot, they they drummed up a lot of support for and it ended up passing with 64% of the vote in 2018. Which, you know, as we know, these days, it's quite a bit.

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And what amendment four did was it automatically re enfranchise people

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after they had completed, quote, all terms of their sentence, including probation and parole. Critically, though, amendment four did not define what all terms of sentence means. And so that became the focus of this this string of litigation. Can you tell us about the Supreme Court of Florida's interpretation of amendment four is language. After amendment four got passed? The Governor Ron DeSantis, decided that the amendment needed an implementation statute. Some Florida legislators didn't think that it was some Florida Florida legislators thought that it was self executing. But nonetheless, Senate Bill 7066 ended up passing which purported to implement metaphor. And so in that Senate bill, it defined all terms of sentence to include payments of legal financial obligations. So Ron DeSantis, ended up asking the Florida Supreme Court for an advisory opinion to determine whether this interpretation was constitutional, whether it was okay and the Florida Supreme Court said that it was so they upheld Senate Bill 7066. And its interpretation of amended amendment for to include payment of legal financial obligations, and amendment four and that interpretation was challenged in Jones V. DeSantis, which your piece discusses at length. Could you tell us what the plaintiffs argued in that challenge to the Rhian franchise system?

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Yeah, so they they argued a lot of things. For the purpose of this note, I only looked at their arguments as they pertain to the 24th amendment. They also of course, raised 14th amendment First Amendment state law claims as well. But as to their 24th amendment arguments, they

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they came up with this this idea that some types of legal financial obligations can realistically be considered taxes, according to modern day tax jurisprudence. And accordingly, the idea of requiring people even though they were convicted felons, requiring these people to pay any sort of money to the government

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can be considered a tax and therefore falls within the purview of the 24th amendment. So making people pay this money to the government before they regain the right to vote is unconstitutional. Can you describe for us the outcomes of the case in the district court and then on appeal in the 11th circuit? Sure. So the district court outcome was, like I said, granting a permanent injunction against the state. And then that decision was appealed to an on Bonk 11 circuit, which is the entire panel. So in the envelope decision, the court ultimately reversed the lower court and dissolved the injunction. And specific to the again, the you know, the case dealt with many, many different things. But specific to the 24th amendment issue. The 11th circuit found that

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legal financial obligations, even ones that do raise revenue for the government or not taxes, they focus mostly on the rebellious factors and just ruled the opposite way of the District Court.

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Interestingly, neither the district court nor the 11th circuit in any of this the decisions focused on the overall text of the 24th Amendment they didn't address to any extent early Supreme Court decisions. Both the district court and the 11th circuit focused primarily on what is a tax or any of these legal financial obligations, taxes, and if so do those fall under the 24th amendment? Your note explores some of the main arguments litigators using the 24th amendment to challenge felon ranch franchise mint schemes could rely on post Jones at a high level, could you give us an overview of what these arguments are? Sure. So big picture. I in my view, there are four things that litigators need to do or to convince courts to to make this argument work. So the first thing we've already touched on briefly is that while states aren't required to provide a path to rien franchise meant, once they do that path has to comply with the Constitution. So the Constitution still applies to these felon range, written franchises and schemes, even though the people to whom they are applying

20:00

Hearing it are people who are convicted of felonies and so don't at that moment have the right to vote, but they have a path to regain the right to vote. So that path has to be constitutional. The second step is, again, like we've already discussed is that fees, and court costs can be considered taxes and they shouldn't be considered taxes for purposes of this analysis. The third step is especially when litigating in more courts where judges tend to take an originalist interpretation of the Constitution, I think it's really important to focus on the text and supporting the text of the 24th amendment be amendments history, the framers intent of the amendment, all of which support a very broad reading of the amendment. And the final step is just looking at those early Supreme Court cases, which as we've already briefly discussed, have a very broad view a very far ranging interpretation of what the 24th Amendment

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can and was intended to prohibit. Your note proceeds to argue that once a litigant shows that a state has reinforced Iseman scheme that must comply with the Constitution, the next step is that they must argue that the fees or court costs that they are required to pay as an LFO are taxes under the Constitution. How might litigants make this argument? Yeah, so this is, I think, the most crucial step in this analysis. This is where the both the lower court and the circuit court spent the majority of their discussion and I think it is the trickiest honestly.

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So there are a few ways to get there. And I'd recommend for anyone using this in court to try all of these throw them all at the court and hopefully, one sticks. So the first one is just the idea that even though amendment four, and SB 7066, doesn't call Legal financial obligations, taxes, that doesn't end the inquiry. There are many examples that were lower courts and the Supreme Court have

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held that certain exactions from the government, even though they aren't labeled taxes are taxes, or the opposite, where certain things that are labeled taxes are actually penalties for whatever reason. So for example, Sebelius, as we've already discussed, found that a, something that was labeled a penalty in the legislation was actually functionally a tax. And it functioned as a tax. And so the, the ACA ended up being a constitutional under Congress's taxing and spending power. There were also earlier cases that found things in a similar manner, where the court found that exactions that are labeled as taxes in the legislation, were actually penalties, and vice versa. So that's the first the first way. And the second is the functional approach. So that's just the idea that the essential feature of a tax is that it produces at least some revenue for the government. So in Florida specifically, fees do much more than raise some revenue for the government fees that are assessed along with criminal prosecutions and criminal convictions are the backbone of the funding for Florida's criminal legal system. The system itself is funded almost entirely through these fees. Obviously, there's some taxpayer money along with that, but, um, you know, the that requirement in Florida at least was easily met, but that that requirement,

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I think, would apply to many other states too, because court costs and fees assessed, along with alongside criminal convictions, do raise revenue for the government.

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The third we've already discussed is disability, it's factors. And just briefly, those factors are the size of the exaction. So if it's a bigger exaction, that it will be more likely a penalty instead of a tax because taxes aren't at least intended to be.

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You know, there, they aren't intended to be the majority of your income or anything like that. The second factor is scienter, which is just the idea of

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the intentionality or knowledge of an infraction.

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And then the third factor is which government agency enforces the exaction. And so all of those, you can argue, are met with

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court costs and fees. And then the final thing that I explore in my note is just a comparison between LFOs to other types of textures prudence and analysis. So for example, there's a test in the Ninth Circuit and 10th circuit that has four factors that the courts use to decide whether an exact

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Whether an exaction is a penalty or a tax. So just very briefly, because I don't want to bore you with tax jurisprudence is the first factor is whether the exaction is an involuntary pecuniary burden, regardless of name laid on individuals or property. The second is that the exaction is imposed by or under the authority of the legislature. The third is that the exemption is for public purposes, including the purposes of defray expenses of government or undertakings authorized by it. And finally, the exaction exemption is collected and imposed under the police or taxing power of the state. So as we've already discussed, court costs and fees easily meet all of those and can be considered taxes under that analysis as well.

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In recent years, we've seen the Supreme Court and other courts embrace an originalist approach to interpreting the Constitution. What does an analysis of the original meaning of the 24th Amendment yield for litigants seeking to challenge voter Rhian franchised schemes? So I think this is one of the more interesting aspects to this whole question.

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I personally don't subscribe to an originalist interpretation of the Constitution. I think that,

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you know, taking the framers meaning and intent is certainly one factor and an important factor in deciding how the Constitution applies to laws today, but it does not end there.

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But a lot of states were

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unconstitutional felon Rhian franchise mint schemes are going to be employed will likely have judges who subscribe to this theory. And so I wanted to address it.

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And interestingly enough, because there haven't there hasn't been a ton of

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case law on this issue. The you know, all we really have to go off of is what the text says and then what the recordings of debates in Congress were as to intent of the framers of this amendment. So starting with textualism,

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just the idea of textualism to begin with is that the interpretation of a statute or a provision of a constitution starts and ends with a text. So in this context, that helps immensely. Again, like I've said the the Amendment prohibits the denial or abridgement of the right to vote. So denial, obviously is you can't vote at all the abridgement of the right to vote I think is much broader. In that it's it's going to encompass a lot more regulations and laws that chip away at the right to vote as opposed to taking it outright.

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The amendment also

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extends the definition of a tax from a poll tax to other tax so it's intending to not just

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prohibit states and the federal government from a bridging and denying the right to vote on something labeled as a poll tax but any other type of tax or payment to the government. And as I've already said, in Harmon, the court found that a

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giving people a choice between paying the poll tax or going through this cumbersome process to

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get a certificate of residency, get it notarized and take it with you. Every time you vote was a

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violation of the 24th amendment because it was sort of his alternative that the state employed to get around the idea of a poll tax and Harman says that the 24th Amendment nullifies sophisticated as well as simple minded modes of impairing the right to vote. So not just modes of impairing the right to vote that are labeled as poll taxes, but ones that are masquerading as poll taxes as well.

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So with originalism, that's the idea of looking at the drafters intent of the framers intent, what did the people writing this amendment, you know, implementing this amendment? What did they want for this to do? So here we actually have a decent amount of information from what Congress people and senators sat on the floor during the time that this memo was being passed. And from those statements, it's pretty clear that Congress is aim was to eliminate all wealth based restrictions on voting regardless of their form. So that included preventing the government from setting up any substitute tax in lieu of a poll tax.

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Congress's intent was also far ranging in that they wanted to increase voter participation across the board. They felt that requiring people to pay money to the government in order to vote would decrease parties.

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patient's very logical and true.

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Finally, Congress also intended the other tax language to to encompass any payment to the government, including those not explicitly labeled as tax or technically falling within the definition of tax. So that's where we, you know, again, go back to the analysis of what constitutes a tax for purposes of the 24th amendment that wouldn't otherwise be considered a tax. And that's very well it fits very well within what the drafters of this amendment what the Congress who passed this amendment intended for it to do.

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Why is it so crucial to ensure recently incarcerated people are provided an opportunity to vote?

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I start off this note with a quote from the Declaration of Independence, which says that the right of representation in the legislature is inestimable. And it is an estimate to inestimable to the people and formidable to tyrants only. So that's the idea. Even from the very early days of, of our country, that voting is a bedrock principle of democracy, it is how people engage in democracy, it is how people elect their public officials, it's how they make their voice heard.

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So as people are coming out of prison and

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attempting to reintegrate into society become part of their families, again, part of their communities, again, the idea that they're still cut off from that part of the bedrock of society is very distancing. For them, it's very othering. For them, it often leads to recidivism, it

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makes people feel as if they are not good enough, not a part of their community.

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You know, and today is the day after we're recording this day after the election in 2022. And I was thinking about it today and yesterday.

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Just the idea of my own home state of Arkansas, where the Democratic candidate for governor lost to Sarah Huckabee Sanders, and I can't help but wonder what would have happened if people who had felony convictions

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had the right to vote and were able to participate in in the election if the result would have been different? Obviously, we can only speculate.

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But, you know, I think that really what it comes down to is the sense that if we really believe that this is a bedrock principle of our democracy and our society, then why are we cutting it off from people even if, you know, we've decided that they have done things that are antisocial?

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In my view, it is far too important to an individual and to that individuals participation in democracy in their community, in society to completely remove that and to attach these unconstitutional conditions to the right to vote.

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Elizabeth, thank you so much for joining us and discussing your note.

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Thank you so much for having me since lovely discussion.

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We hope you've enjoyed this episode of The California Law Review podcast. If you'd like to read Elizabeth's note, you can find it in Volume 110 Issue 4 of the California Law Review, californialawreview.org. For updates on new episodes and articles, please follow us on Twitter. You can find a list of the editors who worked on this volume of the podcast in the show notes. We'll see you in the next episode.