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Thursday, August 20, 2015

Pildes on Dione on poll taxes:
http://electionlawblog.org/?p=75481
Dionne's article is here
https://www.washingtonpost.com/opinions/no-retreat-on-voting-rights/2015/08/19/f0339280-46a0-11e5-846d-02792f854297_story.html
Pildes' point is Dionne said the appeals court upheld the poll tax argument when in fact it overturned it, and only upheld the court below on a different ground.

The district court in the Texas voter ID case had found the statute was a poll tax.
The circuit court reversed on this point.
However, that was because in the meantime the legislature had gone back and removed fees
so the facts had changed. The circuit court did not say the district court had been wrong as a matter of law. At least that's my impression of what happened.
Nope, I was wrong here. See below.
I among those who continues to think that the poll tax argument (or more accurately the 24th Amendment argument; the Amendment is not limited to poll taxes) is a strong one in voter ID cases.

None of the cases that hold that voter ID is not a poll tax are well argued, and three lower courts (in GA, WI, TX) have found voter ID to be a poll tax, leading to changes.

The 5th circuit opinion is here:
https://www.brennancenter.org/sites/default/files/legal-work/Fifth_Circuit_Opinion.pdf

The poll tax discussion begins on p. 40 and ends on p. 46.

The Brennan Center's page collecting case documents is here:
https://www.brennancenter.org/legal-work/naacp-v-steen

AP: http://www.dallasnews.com/news/state/headlines/20150805-texas-voter-id-law-discriminates-against-minorities-5th-circuit-panel-rules.ece

OK, I was mistaken. SB 983 removed birth certificate fees, but voters born out of state still incur fees, so the court addressed the arguments.
 The court interpreted Harmon v Forssenius, the Supreme Court's only 24th A case, extremely narrowly, pretty much holding Texas would have to exactly mirror the Harman fact pattern for it to apply. I think this is wrong. But I'm just some blogger, while the 5th circuit is a substantial authority.
I hope the plaintiffs will preserve their appeal on this point. I am not hopeful that they will.

There is not quite a split on this point of the sort that leads to Supreme Court review The Wisconsin Supreme Court found a poll tax, but resolved the issue by construing the statute, as is their prerogative. So that's different than, for example, if the 7th circuit had ruled Wisconsin's statute was a poll tax.  (After the Wisconsin court narrowed the statute, the 7th circuit upheld it, in a 5-5 split, and the US Supreme Court denied further review.)

The Texas case could still head to the Supreme Court, but the poll tax issue could easily get lost in the shuffle. I do not find the 5th circuit's logic on this point persuasive or compelling, but they at least took it seriously and addressed the issues. It is ripe for cert. This case is already on the court's radar, so it is a likely candidate for cert, and would make a good bookend to Crawford v Marion County. But I am not confident plaintiffs will preserve the 24th Amendment claim, or that the court will choose to address it. If the court does take up the issue, I cannot predict how it will turn out. Roberts and Kennedy are the swing votes. But it is an independent claim from the voting rights act claim and the 14th A. claim, and offers a third bite at the apple, and plaintiffs would be foolish to waive the issue, if it offers a way to pick up a 5th vote.

Justice Thomas was highly critical of the Crawford plaintiffs, but it would be interesting to offer him a chance to write the second opinion on the 24th Amendment. What was the original intent of the founders in 1965 when they passed the 24th A? It was probably to keep places like Texas from creating partisan barriers to voting by the masses, as they have done here.

Anyway Pildes is right and Dionne and the Washington Post are wrong. Let's see if a correction follows.

This would be a good place to wind up this blog entry, but one more point. It's interesting how the court finds that voter ID is allowable as a voter qualification as a matter of federal law, but the ame voter ID is not a qualification under state law in LWV v Rokita, because if it were a qualification under state law it would violate the state constitution. Nice paradox. It reminds me of how you need an ID to get a birth certificate, but you need a birth certificate to get an ID.


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