Harper v. Virginia State Board of Elections Butts v. Harrison, s. 48

• Decision Date: 24 March 1966
• Docket Number: 655,Nos. 48,s. 48
• Citation: 1965 WL 130114,86 S.Ct. 1079,383 U.S. 663,16 L.Ed.2d 169
• Parties: Annie E. HARPER et al., Appellants, v. VIRGINIA STATE BOARD OF ELECTIONS et al. Evelyn BUTTS, Appellant, v. Albertis HARRISON, Governor, et al
• Court: U.S. Supreme Court

383 U.S. 663

86 S.Ct. 1079

16 L.Ed.2d 169

Annie E. HARPER et al., Appellants,

v VIRGINIA STATE BOARD OF ELECTIONS et al.

Evelyn BUTTS, Appellant,

v. Albertis HARRISON, Governor, et al.

Nos. 48, 655.

Argued Jan. 25 and 26, 1966.

Decided March 24, 1966.

Allison W. Brown, Jr., Washington, D.C., Robert L. Segar, Flint, Mich., and J. A. Jordan, Jr., Norfolk, Va., for appellants.

George D. Gibson, Richmond, Va., for appellees.

Sol. Gen. Thurgood Marshall, for the United States, as amicus curiae, by special leave of Court.

Mr. Justice DOUGLAS delivered the opinion of the Court.

These are suits by Virginia residents to have declared unconstitutional Virginia's poll tax.¹ The three-judge District Court, feeling bound by our decision in Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252, dismissed the complaint. See 240 F.Supp. 270. The cases came here on appeal and we noted probable jurisdiction. 380 U.S. 930, 85 S.Ct. 942, 13 L.Ed.2d 819, 382 U.S. 806, 86 S.Ct. 94, 15 L.Ed.2d 57.

While the right to vote in federal elections is conferred by Art. I, § 2, of the Constitution (United States v. Classic, 313 U.S. 299, 314—315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368), the right to vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment and that it may not constitutionally be conditioned upon the payment of a tax or fee. Cf. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 113, 63 S.Ct. 870, 875, 87 L.Ed. 1292.² We do not stop to canvass the relation between voting and political expression. For it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage 'is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.' Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 990, 3 L.Ed.2d 1072. We were speaking there of a state literacy test which we sustained, warning that the result would be different if a literacy test, fair on its face, were used to discriminate against a class.³ Id., at 53, 79 S.Ct. at 990. But the Lassiter case does not govern the result here, because, unlike a poll tax, the 'ability to read and write * * * has some relation to standards designed to promote intelligent use of the ballot.' Id., at 51, 79 S.Ct. at 990.

We conclude 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 nor to paying or not paying this or any other tax.⁴ Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. Thus without questioning the power of a State to impose reasonable residence restrictions on the availability of the ballot (see Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817), we held in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, that a State may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services. 'By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.' Id., at 96, 85 S.Ct. at 780. And see Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817. Previously we had said that neither homesite nor occupation 'affords a permissible basis for distinguishing between qualified voters within the State.' Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 808, 9 L.Ed.2d 821. We think the same must be true of requirements of wealth or affluence or payment of a fee.

Long ago in Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 the Court referred to 'the political franchise of voting' as a 'fundamental political right, because preservative of all rights.' Recently in Reynolds v. Sims, 377 U.S. 533, 561—562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, we said, 'Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.' There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded:

'A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, (and) for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.' Id., at 568, 84 S.Ct. at 1385.

We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen's vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.

It is argued that a State may exact fees from citizens for many different kinds of licenses; that if it can demand from all an equal fee for a driver's license,⁵ it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race (Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194), are traditionally disfavored. See Edwards v. People of State of California, 314 U.S. 160, 184 185, 62 S.Ct. 164, 171, 86 L.Ed. 119 (Jackson, J., concurring); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context—that is, as a condition of obtaining a ballot—the requirement of fee paying causes an 'invidious' discrimination (Skinner v. State of Oklahoma, 316 U.S. 535, 514, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655) that runs afoul of the Equal Protection Clause. Levy 'by the poll,' as stated in Breedlove v. Suttles, supra, 302 U.S. at 281, 58 S.Ct. at 207, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as 'a prerequisite of voting.' Id., at 283, 58 S.Ct. at 207. To that extent the Breedlove case is overruled.

We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment 'dose not enact Mr. Herbert Spencer's Social Statics' (Lochner v. People of State of New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. See Malloy v. Hogan, 378 U.S. 1, 5—6, 84 S.Ct. 1489, 12 L.Ed.2d 653. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court in 1896 held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Seven of the eight Justices then sitting subscribed to the Court's opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to a contemporary ear.⁶ When, in 1954—more than a half-century later—we repudiated the 'separate-but-equal' doctrine of Plessy as respects public education⁷ we stated: 'In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.' Brown v. Board of Education, 347 U.S. 483, 492, 74 S.Ct. 686, 691, 98 L.Ed. 873.

In a recent searching re-examination of the Equal Protection Clause, we held, as already noted, that 'the opportunity for equal participation by all voters in the election of state legislators' is required.⁸ Reynolds v. Sims, supra, 377 U.S. at 566, 84 S.Ct. at 1383. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like that in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.

We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. See, e.g., Skinner v. State of Oklahoma, ...