Fifty years ago today, the United States Supreme Court struck down the poll tax, a barrier that, for decades, had blocked millions of poor African-American voters, as well as poor white voters, from exercising their right to vote. In that case, Harper v. Virginia Board of Elections, the Court ruled that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth…” For the first time, the Supreme Court had recognized that wealth discrimination in the political process is prohibited under the US Constitution.
Fifty years later, we face a new wealth barrier in our elections: the exclusionary campaign finance system which allows big money interests to dominate our politics and drown out the voices of ordinary citizens. Like the poll tax of the past, this barrier – the wealth primary – blocks millions of voters from participating in the political process on an equal basis. And, as with the poll tax history, the abolition of this wealth barrier to our democracy will require a reversal of prior Supreme Court rulings.
"As with the poll tax history, the abolition of this wealth barrier to our democracy will require a reversal of prior Supreme Court rulings."
The Harper case was not, in fact, the first such case to reach the Supreme Court challenging the poll tax. In 1937 (Breedlove v. Suttles) and again in 1951 (Butler v. Thompson), poor voters had brought similar equal protection challenges to that barrier. In both cases, the voters lost. The Court found constitutional justification for requiring citizens to pay a fee in order to vote.
Then, in 1964, in the heat of the Civil Rights Movement, the nation enacted the 24th Amendment to the US Constitution, forever banning poll taxes in federal elections. But there remained four Southern states holding onto poll taxes in their state elections and Virginia was one of them.
Yet, even in the Supreme Court’s ruling in Harper, overturning its prior two decisions upholding the poll tax, there were still justices who refused to recognize that the Court had been wrong. In his dissent from the majority ruling in Harper, Justice John Marshall Harlan II, joined by Justice Potter Stewart, repeated an entrenched claim for justifying the poll tax:
[I]t is certainly a rational argument that payment of some minimal poll tax promotes civic responsibility, weeding out those who do not care enough about public affairs to pay $1.50 or thereabouts a year for the exercise of the franchise. It is also arguable, indeed it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens.
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Justice Hugo Black, who had been among the majority of the justices in the 1937 and 1951 rulings upholding the poll tax, separately dissented, citing “the original meaning of the Constitution” as requiring the Court to continue to uphold the barrier.
Writing for the majority, Justice William Douglas answered the dissenters, stating that “the Equal Protection Clause is not shackled to the political theory of a particular era.” He continued for the Court: “Notions of what constitutes equal treatment for the purposes of the Equal Protection Clause do change.”
So, too, is the case with our current pay-to-play political system dominated by big money interests. For four decades, the Supreme Court has refused to recognize that this system violates the basic promise of political equality for all. Since the time of its 1976 ruling in Buckley v. Valeo, the Court has sanctioned today’s regime of unlimited campaign spending in our elections on the claim that money equals speech and that those with large sums of money have a First Amendment right to spend it in our political process. And, in Citizens United v FEC, the Court went even further, finding that corporations are people with the political speech rights to spend their general treasury funds in our elections. With Citizens United, artificial creatures of government have joined the wealthiest few of our nation in controlling an exclusionary process which determines who shall govern in America.
But, as happened with the poll tax, the tide is turning on the wealth primary barrier. Since the Citizens United ruling, a growing movement has emerged across the country calling for a 28th Amendment to the Constitution to get big money out of our politics and to reclaim our democracy. And, now with the current vacancy on the Supreme Court, we face the potential for a dramatic shift in the Court’s jurisprudence on campaign finance, where political equality principles may now be able to prevail.
The poll tax story reminds us that a sustained people’s movement combined with continued pressure in the courts can eradicate an entrenched and anti-democratic system. The wealth primary barrier may stand today. But, it will not stand forever.