U.S. Supreme Court Harper v. Virginia Bd. of Elections, 383
U.S. 663 (1966) Harper v. Virginia Board of
Elections No. 48 Argued January 25-26,
1966 Decided March 24, 1966 383
U.S. 663 ast|>* 383
U.S. 663 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA Syllabus Appellants, Virginia residents, brought this action to have
Virginia's poll tax declared unconstitutional. The three-judge
District Court dismissed the complaint on the basis of Breedlove v. Suttles, 302 U. S. 277 . Held: A State's conditioning of the right to vote on
the payment of a fee or tax violates the Equal Protection Clause of
the Fourteenth Amendment. Breedlove v. Suttle, supra, pro
tanto overruled. Pp. 383 U. S.
665 -670.

															(a) Once the franchise is granted to the electorate, lines which
determine who may vote may not be drawn so as to cause invidious
discrimination. Pp. 383 U. S.
665 -667.

															(b) Fee payments or wealth, like race, creed, or color, are
unrelated to the citizen's ability to participate intelligently in
the electoral process. Pp. 383 U. S. 666 -668.

															(c) The interest of the State, when it comes to voting
registration, is limited to the fixing of standards related to the
applicant's qualifications as a voter. P. 383 U. S.
668 .

															(d) Lines drawn on the basis of wealth or property, like those
of race, are traditionally disfavored. P. 383 U. S.
668 .

															(e) Classifications which might impinge on fundamental rights
and liberties -- such as the franchise -- must be closely
scrutinized. P. 383 U. S.
670 . 240 F.
Supp. 270 , reversed. Page 383 U. S. 664 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

															These are suits by Virginia residents to have declared
unconstitutional Virginia's poll tax. [ Footnote 1 ] The three-judge Page 383 U. S. 665 District Court, feeling bound by our decision in Breedlove
v. Suttles, 302 U. S. 277 ,
dismissed the complaint. See 240 F.
Supp. 270 . The cases came here on appeal and we noted probable
jurisdiction. 380 U.S. 930, 380 U. S. 382 U.S. 806.

															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 , 313 U. S.
314 -315), 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. Pennsylvania, 319 U. S. 105 , 319 U. S. 113 .
[ Footnote 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 Election Board, 360 U. S.
45 , 360 U. S. 51 . 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 Page 383 U. S. 666 against a class. [ Footnote
3 ] Id. at 360 U. S. 53 .
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 360 U. S.
51 .

															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. [ Footnote 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 ),
we Page 383 U. S. 667 held in Carrington v. Rash, 380 U. S.
89 , 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 380 U. S. 96 . And see Louisiana v. United States, 380 U.
S. 145 . 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 , 372 U. S. 380 .
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 , 118 U. S. 370 ,
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 , 377 U. S.
561 -562, 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 Page 383 U. S. 668 demands no less than substantially equal state legislative
representation for all citizens, of all places as well as of all
races." Id. at 377 U.S.
568 .

															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, [ Footnote 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 , 323 U. S.
216 ), are traditionally disfavored. See Edwards v.
California, 314 U. S. 160 , 314 U. S.
184 -185 (Jackson, J., concurring); Griffin v.
Illinois, 351 U. S. 12 ; Douglas v. California, 372 U. S. 353 . 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.
Oklahoma, 316 U. S. 535 , 316 U. S. 541 )
that runs afoul of the Equal Protection Clause. Levy "by the poll,"
as stated in Page 383 U. S. 669 Breedlove v. Suttles, supra, at 302 U. S. 281 ,
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 302 U. S. 283 .
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 "does not enact Mr.
Herbert Spencer's Social Statics" ( Lochner v. New York, 198 U. S. 45 , 198 U. S. 75 ).
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 , 378 U. S. 5 -6.
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 .
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. [ Footnote 6 ] When, in 1954
-- more than a half-century later -- we repudiated the
"separate-but-equal" doctrine of Plessy Page 383 U. S. 670 as respects public education [ Footnote 7 ] 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 , 347 U. S.
492 .

															In a recent searching reexamination 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. [ Footnote 8 ] Reynolds v. Sims, supra, at 377 U.S. 566 . 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.
Oklahoma, 316 U. S. 535 , 316 U. S. 541 ; Reynolds v. Sims, 377 U. S. 533 , 377 U. S.
561 -562; Carrington v. Rash, supra; Baxstrom v.
Herold, ante p. 383 U. S. 107 ; Cox v. Louisiana, 379 U. S. 536 , 379 U. S.
580 -581 (BLACK, J., concurring).

															Those principles apply here. For, to repeat, wealth or fee
paying has, in our view, no relation to voting qualifications; the
right to vote is too precious, too fundamental to be so burdened or
conditioned. Reversed. * Together with No. 655, Butts v. Harrison, Governor of
Virginia, et al., also on appeal from the same court.

															[ Footnote 1 ]

															Section 173 of Virginia's Constitution directs the General
Assembly to levy an annual poll tax not exceeding $1.50 on every
resident of the State 21 years of age and over (with exceptions not
relevant here). One dollar of the tax is to be used by state
officials "exclusively in aid of the public free schools," and the
remainder is to be returned to the counties for general purposes.
Section 18 of the Constitution includes payment of poll taxes as a
precondition for voting. Section 20 provides that a person must
"personally" pay all state poll taxes for the three years preceding
the year in which he applies for registration. By § 21, the poll
tax must be paid at least six months prior to the election in which
the voter seeks to vote. Since the time for election of state
officials varies (Va.Code §§ 2136, 2160 -- 2168; id. at §
222), the six months' deadline will vary, election from election.
The poll tax is often assessed along with the personal property
tax. Those who do not pay a personal property tax are not assessed
for a poll tax, it being their responsibility to take the
initiative and request to be assessed. Va.Code § 58-1163.
Enforcement of poll taxes takes the form of disenfranchisement of
those who do not pay, § 22 of the Virginia Constitution providing
that collection of delinquent poll taxes for a particular year may
not be enforced by legal proceedings until the tax for that year
has become three years delinquent.

															[ Footnote 2 ]

															Judge Thornberry, speaking for the three-judge court which
recently declared the Texas poll tax unconstitutional, said:

															"If the State of Texas placed a tax on the right to speak at the
rate of one dollar and seventy-five cents per year, no court would
hesitate to strike it down as a blatant infringement of the freedom
of speech. Yet the poll tax as enforced in Texas is a tax on the
equally important right to vote." 252 F.
Supp. 234 , 254 (decided February 9, 1966).

															[ Footnote 3 ]

															We recently held in Louisiana v. United States, 380 U. S. 145 ,
that a literacy test which gave voting registrars "a virtually
uncontrolled discretion as to who should vote and who should not"
( id. at 380 U. S. 150 )
had been used to deter Negroes from voting and accordingly we
struck it down. While the "Virginia poll tax was born of a desire
to disenfranchise the Negro" ( Harman v. Forssenius, 380 U. S. 528 , 380 U. S.
543 ), we do not stop to determine whether on this record
the Virginia tax in its modern setting serves the same end.

															[ Footnote 4 ]

															Only a handful of States today condition the franchise on the
payment of a poll tax. Alabama (Ala.Const., §§ 178, 194, and
Amendments 96 and 207; Ala.Code Tit. 17, § 12) and Texas
(Tex.Const., Art. 6, § 2; Vernon's Ann.Stat., Election Code, Arts.
5.02, 5.09) each impose a poll tax of $1.50. Mississippi
(Miss.Const., §§ 241, 243; Miss.Code §§ 3130, 3160, 3235) has a
poll tax of $2. Vermont has recently eliminated the requirement
that poll taxes be paid in order to vote. Act of Feb. 23, 1966,
amending Vt.Stat.Ann. Tit. 24, § 701.

															As already noted, note 2 supra, the Texas poll tax was recently declared
unconstitutional by a three-judge United States District Court. United States v. Texas, 252 F.
Supp. 234 (decided February 9, 1966). Likewise the Alabama tax. United States v. Alabama, 252 F.
Supp. 95 (decided March 3, 1966.)

															[ Footnote 5 ]

															Maine has a poll tax (Maine Rev.Stat.Ann. Tit. 36, § 1381) which
is not made a condition of voting; instead, its payment is a
condition of obtaining a motor vehicle license (Maine Rev.Stat.Ann.
Tit. 29, § 108) or a motor vehicle operator's license. Id. § 584.

															[ Footnote 6 ] E.g., "We consider the underlying fallacy of the plaintiff's argument
to consist in the assumption that the enforced separation of the
two races stamps the colored race with a badge of inferiority. If
this be so, it is not by reason of anything found in the act, but
solely because the colored race chooses to put that construction
upon it."

															163 U.S. at 163 U. S.
551 .

															[ Footnote 7 ]

															Segregated public transportation, approved in Plessy v.
Ferguson, supra, was held unconstitutional in Gayle v.
Browder, 352 U.S. 903 (per curiam).

															[ Footnote 8 ]

															Only MR. JUSTICE HARLAN dissented, while MR. JUSTICE CLARK and
MR. JUSTICE STEWART each concurred on separate grounds.

															MR JUSTICE BLACK, dissenting.

															In Breedlove v. Suttles, 302 U.
S. 277 , decided December 6, 1937, a few weeks after I
took my seat as a member Page 383 U. S. 671 of this Court, we unanimously upheld the right of the State of
Georgia to make payment of its state poll tax a prerequisite to
voting in state elections. We rejected at that time contentions
that the state law violated the Equal Protection Clause of the
Fourteenth Amendment because it put an unequal burden on different
groups of people according to their age, sex, and ability to pay.
In rejecting the contention that the law violated the Equal
Protection Clause the Court noted at p. 302 U. S.
281 :

															"While possible by statutory declaration to levy a poll tax upon
every inhabitant of whatsoever sex, age or condition, collection
from all would be impossible, for always there are many too poor to
pay."

															Believing at that time that the Court had properly respected the
limitation of its power under the Equal Protection Clause and was
right in rejecting the equal protection argument, I joined the
Court's judgment and opinion. Later, May 28, 1951, I joined the
Court's judgment in Butler v. Thompson, 341 U.S. 937,
upholding, over the dissent of MR. JUSTICE DOUGLAS, the Virginia
state poll tax law challenged here against the same equal
protection challenges. Since the Breedlove and Butler cases were decided, the Federal Constitution has
not been amended in the only way it could constitutionally have
been, that is, as provided in Article V [ Footnote 2/1 ] of the Page 383 U. S. 672 Constitution. I would adhere to the holding of those cases. The
Court, however, overrules Breedlove in part, but its
opinion reveals that it does so not by using its limited power to
interpret the original meaning of the Equal Protection Clause, but
by giving that clause a new meaning which it believes represents a
better governmental policy. From this action, I dissent.

															It should be pointed out at once that the Court's decision is to
no extent based on a finding that the Virginia law as written or as
applied is being used as a device or mechanism to deny Negro
citizens of Virginia the right to vote on account of their color.
Apparently the Court agrees with the District Court below and with
my Brothers HARLAN and STEWART that this record would not support
any finding that the Virginia poll tax law the Court invalidates
has any such effect. If the record could support a finding that the
law as written or applied has such an effect, the law would, of
course, be unconstitutional as a violation of the Fourteenth and
Fifteenth Amendments and also 42 U.S.C. § 1971(a). This follows
from our holding in Schnell v. Davis, 336 U.S. 933, affirming 81 F. Supp.
872 (D.C.S.D.Ala.); Gomillion v. Lightfoot, 364 U. S. 339 ; United States v. Mississippi, 380 U.
S. 128 ; Louisiana v. United States, 380 U. S. 145 .
What the Court does hold is that the Equal Protection Clause
necessarily bars all States from making payment of a state tax, any
tax, a prerequisite to voting.

															(1) I think the interpretation that this Court gave the Equal
Protection Clause in Breedlove was correct. The mere fact
that a law results in treating some groups differently from others
does not, of course, automatically amount to a violation of the
Equal Protection Clause. Page 383 U. S. 673 To bar a State from drawing any distinctions in the application
of its laws would practically paralyze the regulatory power of
legislative bodies. Consequently,

															"The constitutional command for a state to afford 'equal
protection of the laws' sets a goal not attainable by the invention
and application of a precise formula." Kotch v. River Port Pilot Comm'rs, 330 U.
S. 552 , 330 U. S. 556 .
Voting laws are no exception to this principle. All voting laws
treat some persons differently from others in some respects. Some
bar a person from voting who is under 21 years of age; others bar
those under 18. Some bar convicted felons or the insane, and some
have attached a freehold or other property qualification for
voting. The Breedlove case upheld a poll tax which was
imposed on men but was not equally imposed on women and minors, and
the Court today does not overrule that part of Breedlove which approved those discriminatory provisions. And in Lassiter
v. Northampton Election Board, 360 U. S.
45 , this Court held that state laws which disqualified
the illiterate from voting did not violate the Equal Protection
Clause. From these cases and all the others decided by this Court
interpreting the Equal Protection Clause, it is clear that some
discriminatory voting qualifications can be imposed without
violating the Equal Protection Clause.

															A study of our cases shows that this Court has refused to use
the general language of the Equal Protection Clause as though it
provided a handy instrument to strike down state laws which the
Court feels are based on bad governmental policy. The equal
protection cases carefully analyzed boil down to the principle that
distinctions drawn and even discriminations imposed by state laws
do not violate the Equal Protection Clause so long as these
distinctions and discriminations are not "irrational,"
"irrelevant," "unreasonable," "arbitrary," or "invidious."
[ Footnote 2/2 ] Page 383 U. S. 674 These vague and indefinite terms do not, of course, provide a
precise formula or an automatic mechanism for deciding cases
arising under the Equal Protection Clause. The restrictive
connotations of these terms, however (which in other contexts have
been used to expand the Court's power inordinately, see,
e.g., cases cited at pp. 372 U. S.
728 -732 in Ferguson v. Skrupa, 372 U.
S. 726 ), are a plain recognition of the fact that, under
a proper interpretation of the Equal Protection Clause, States are
to have the broadest kind of leeway in areas where they have a
general constitutional competence to act. [ Footnote 2/3 ] In view of the purpose of the terms to
restrain the courts from a wholesale invalidation of state laws
under the Equal Protection Clause, it would be difficult to say
that the poll tax requirement is "irrational," or "arbitrary," or
works "invidious discriminations." State poll tax legislation can
"reasonably," "rationally" and without an "invidious" or evil
purpose to injure anyone be found to rest on a number of state
policies, including (1) the State's desire to collect its revenue,
and (2) its belief that voters who pay a poll tax will be
interested in furthering the State's welfare when they vote.
Certainly it is rational to believe that people may be more likely
to pay taxes if payment is a prerequisite to voting. And if history
can be a factor in determining the "rationality" of discrimination
in a state law (which we held it could in Kotch v. River Port
Pilot Comm'rs, supra ), then whatever may be our personal
opinion, history is Page 383 U. S. 675 on the side of "rationality" of the State's poll tax policy.
Property qualifications existed in the Colonies and were continued
by many States after the Constitution was adopted. Although I join
the Court in disliking the policy of the poll tax, this is not, in
my judgment, a justifiable reason for holding this poll tax law
unconstitutional. Such a holding on my part would, in my judgment,
be an exercise of power which the Constitution does not confer upon
me. [ Footnote 2/4 ]

															(2) Another reason for my dissent from the Court's judgment and
opinion is that it seems to be using the old "natural law due
process formula" [ Footnote 2/5 ] to
justify striking down state laws as violations of the Equal
Protection Clause. I have heretofore had many occasions to express
my strong belief that there is no constitutional support whatever
for this Court to use the Due Process Clause as though it provided
a blank check to alter the meaning of the Constitution as written,
so as to add to it substantive constitutional changes which a
majority of Page 383 U. S. 676 the Court at any given time believes are needed to meet
present-day problems. [ Footnote
2/6 ] Nor is there, in my opinion, any more constitutional
support for this Court to use the Equal Protection Clause, as it
has today, to write into the Constitution its notions of what it
thinks is good governmental policy. If basic changes as to the
respective powers of the state and national governments are needed,
I prefer to let those changes be made by amendment a Article V of
the Constitution provides. For a majority of this Court to
undertake that task, whether purporting to do so under the Due
Process or the Equal Protection Clause amounts, in my judgment, to
an exercise of power the Constitution makers with foresight and
wisdom refused to give the Judicial Branch of the Government. I
have in no way departed from the view I expressed in Adamson v.
California, 332 U. S. 46 , 332 U. S. 90 ,
decided June 23, 1947, that the "natural law due process formula"
under which courts make the Constitution mean what they think it
should at a given time

															"has been used in the past, and can be used in the future, to
license this Court, in considering regulatory legislation, to roam
at large in the broad expanses of policy and morals and to trespass
all too freely on the legislative domain of the States, as well as
the Federal Government."

															The Court denies that it is using the "natural law due process
formula." It says that its invalidation of the Virginia law "is
founded not on what we think governmental policy should be, but on
what the Equal Protection Clause requires." I find no statement in
the Court's opinion, however, which advances even a plausible
argument as to why the alleged discriminations which might possibly
be effected by Virginia's poll tax law are "irrational,"
"unreasonable," "arbitrary," or "invidious," Page 383 U. S. 677 or have no relevance to a legitimate policy which the State
wishes to adopt. The Court gives no reason at all to discredit the
longstanding beliefs that asking the payment of a tax a
prerequisite to voting is an effective way of collecting revenue,
and that people who pay their taxes are likely to have a far
greater interest in their government. The Court's failure to give
any reasons to show that these purposes of the poll tax are
"irrational," "unreasonable," "arbitrary," or "invidious" is a
pretty clear indication to me that none exist. I can only conclude
that the primary, controlling, predominant, if not the exclusive,
reason for declaring the Virginia law unconstitutional is the
Court's deep-seated hostility and antagonism, which I share, to
making payment of a tax a prerequisite to voting.

															The Court's justification for consulting its own notions, rather
than following the original meaning of the Constitution, as I
would, apparently is based on the belief of the majority of the
Court that for this Court to be bound by the original meaning of
the Constitution is an intolerable and debilitating evil; that our
Constitution should not be "shackled to the political theory of a
particular era," and that, to save the country from the original
Constitution, the Court must have constant power to renew it and
keep it abreast of this Court's more enlightened theories of what
is best for our society. [ Footnote
2/7 ] Page 383 U. S. 678 It seems to me that this is an attack not only on the great
value of our Constitution itself, but also on the concept of a
written constitution which is to survive through the years as
originally written unless changed through the amendment process
which the Framers wisely provided. Moreover, when a "political
theory" embodied in our Constitution becomes outdated, it seems to
me that a majority of the nine members of this Court are not only
without constitutional power, but are far less qualified, to choose
a new constitutional political theory than the people of this
country proceeding in the manner provided by Article V.

															The people have not found it impossible to amend their
Constitution to meet new conditions. The Equal Protection Clause
itself is the product of the people's desire to use their
constitutional power to amend the Constitution to meet new
problems. Moreover, the people, in § 5 of the Fourteenth Amendment,
designated the Page 383 U. S. 679 governmental tribunal they wanted to provide additional rules to
enforce the guarantees of that Amendment. The branch of Government
they chose was not the Judicial Branch, but the Legislative. I have
no doubt at all that Congress has the power under § 5 to pass
legislation to abolish the poll tax in order to protect the
citizens of this country if it believes that the poll tax is being
used as a device to deny voters equal protection of the laws. See my concurring and dissenting opinion in South
Carolina v. Katzenbach, ante, p. 383 U. S. 355 .
But this legislative power which was granted to Congress by § 5 of
the Fourteenth Amendment is limited to Congress. [ Footnote 2/8 ] This Court had occasion to discuss
this very subject in Ex parte Virginia, 100 U.
S. 339 , 100 U. S.
345 -346. There, this Court said, referring to the fifth
section of the Amendment:

															"All of the amendments derive much of their force from this
latter provision. It is not said the judicial power of the
general government shall extend to enforcing the prohibitions and
to protecting the rights and immunities guaranteed. It is not said
that branch of the government shall be authorized to declare void
any action of a State in violation of the prohibitions. It is
the power of Congress which has been enlarged. Congress is
authorized to enforce the prohibitions by appropriate legislation.
Some legislation is contemplated to make the amendments fully
effective. Whatever legislation is appropriate, Page 383 U. S. 680 that is, adapted to carry out the objects the amendments have in
view, whatever tends to enforce submission to the prohibitions they
contain, and to secure to all persons the enjoyment of perfect
equality of civil rights and the equal protection of the laws
against State denial or invasion, if not prohibited, is brought
within the domain of congressional power."

															(Emphasis partially supplied.) Thus, § 5 of the Fourteenth
Amendment, in accordance with our constitutional structure of
government, authorizes the Congress to pass definitive legislation
to protect Fourteenth Amendment rights, which it has done many
times, e.g., 42 U.S.C. § 1971(a). For Congress to do this
fits in precisely with the division of powers originally entrusted
to the three branches of government -- Executive, Legislative, and
Judicial. But for us to undertake in the guise of constitutional
interpretation to decide the constitutional policy question of this
case amount, in my judgment, to a plain exercise of power which the
Constitution has denied us, but has specifically granted to
Congress. I cannot join in holding that the Virginia state poll tax
law violates the Equal Protection Clause.

															[ Footnote 2/1 ]

															Article V of the Constitution provides:

															"The Congress, whenever two-thirds of both Houses shall deem it
necessary, shall propose amendments to this Constitution, or, on
the application of the Legislatures of two-thirds of the several
States, shall call a convention for proposing amendments, which, in
either case, shall be valid to all intents and purposes, as part of
this Constitution, when ratified by the Legislatures of
three-fourths of the several States, or by conventions in
three-fourths thereof, as the one or the other mode of ratification
may be proposed by the Congress; provided that no amendment which
may be made prior to the year one thousand eight hundred and eight
shall in any manner affect the first and fourth clauses in the
Ninth Section of the First Article, and that no State, without its
consent, shall be deprived of its equal suffrage in the
Senate."

															[ Footnote 2/2 ] See, e.g., Allied Stores of Ohio v. Bowers, 358 U. S. 522 ; Goesaert v. Cleary, 335 U. S. 464 ; Skinner v. Oklahoma, 316 U. S. 535 ; Minnesota v. Probate Court, 309 U.
S. 270 ; Smith v. Cahoon, 283 U.
S. 553 ; Watson v. Maryland, 218 U.
S. 173 .

															[ Footnote 2/3 ]

															"A statutory discrimination will not be set aside as the denial
of equal protection of the laws if any state of facts reasonably
may be conceived to justify it." Metropolitan Co. v. Brownell, 294 U.
S. 580 , 294 U. S. 584 (Stone, J.).

															[ Footnote 2/4 ]

															The opinion of the Court, in footnote two, quotes language from
a federal district court's opinion which implies that, since a tax
on speech would not be constitutionally allowed, a tax which is a
prerequisite to voting likewise cannot be allowed. But a tax or any
other regulation which burdens and actually abridges the right to
speak would, in my judgment, be a flagrant violation of the First
Amendment's prohibition against abridgments of the freedom of
speech, which prohibition is made applicable to the States by the
Fourteenth Amendment. Cf. Murdock v. Pennsylvania, 319 U. S. 105 .
There is no comparable specific constitutional provision absolutely
barring the States from abridging the right to vote. Consequently
States have from the beginning, and do now, qualify the right to
vote because of age, prior felony convictions, illiteracy, and
various other reasons. Of course, the First and Fourteenth
Amendments forbid any State from abridging a person's right to
speak because he is under 21 years of age, has been convicted of a
felony, or is illiterate.

															[ Footnote 2/5 ] See my dissenting opinion in Adamson v.
California, 332 U. S. 46 , 332 U. S.
90 .

															[ Footnote 2/6 ] See, for illustration, my dissenting opinion in Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 507 ,
and cases cited therein.

															[ Footnote 2/7 ]

															In Brown v. Board of Education, 347 U.
S. 483 , the Court today purports to find precedent for
using the Equal Protection Clause to keep the Constitution up to
date. I did not vote to hold segregation in public schools
unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct
in 1896 when he dissented from Plessy v. Ferguson, 163 U. S. 537 ,
which held that it was not a discrimination prohibited by the Equal
Protection Clause for state law to segregate white and colored
people in public facilities, there, railroad cars. I did not join
the opinion of the Court in Brown on any theory that
segregation, where practiced in the public schools, denied equal
protection in 1954, but did not similarly deny it in 1868, when the
Fourteenth Amendment was adopted. In my judgment, the holding in Brown against racial discrimination was compelled by the
purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth
Amendments completely to outlaw discrimination against people
because of their race or color. See the Slaughter-House
Cases , 16 Wall. 36, 83 U. S. 71 -72; Nixon v. Herndon, 273 U. S. 536 , 273 U. S. 541 .

															Nor does Malloy v. Hogan, 378 U. S.
1 , stand as precedent for the amendatory power which the
Court exercises today. The Court in Malloy did not read
into the Constitution its own notions of wise criminal procedure,
but instead followed the doctrine of Palko v. Connecticut, 302 U. S. 319 , and
made the Fifth Amendment's unequivocal protection against
self-incrimination applicable to the States. I joined the opinion
of the Court in Malloy on the basis of my dissent in Adamson v. California, supra, in which I stated, at p. 332 U. S.
89 :

															"If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the
States, or the Twining rule applying none of them, I would
choose the Palko selective process."

															[ Footnote 2/8 ]

															But § 1 of the Fourteenth Amendment itself outlaws any state law
which either as written or as applied discriminates against voters
on account of race. Such a law can never be rational.

															"States may do a good deal of classifying that it is difficult
to believe rational, but there are limits, and it is too clear for
extended argument that color cannot be made the basis of a
statutory classification affecting the right [to vote] set up in
this case." Nixon v. Herndon, 273 U. S. 536 , 273 U. S. 541 (Holmes, J.).

															MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.

															The final demise of state poll taxes, already totally proscribed
by the Twenty-Fourth Amendment with respect to federal elections
and abolished by the States themselves in all but four States with
respect to state elections, [ Footnote
3/1 ] is perhaps, in itself, not of great moment. But the fact
that the coup de grace has been administered by this
Court, instead of being left to the affected States or to the
federal political process, [ Footnote
3/2 ] should be a matter Page 383 U. S. 681 of continuing concern to all interested in maintaining the
proper role of this tribunal under our scheme of government.

															I do not propose to retread ground covered in my dissents in Reynolds v. Sims, 377 U. S. 533 , 377 U.S. 589 , and Carrington v. Rash, 380 U. S. 89 , 380 U. S. 97 ,
and will proceed on the premise that the Equal Protection Clause of
the Fourteenth Amendment now reaches both state apportionment
( Reynolds) and voter qualification ( Carrington )
cases. My disagreement with the present decision is that, in
holding the Virginia poll tax violative of the Equal Protection
Clause, the Court has departed from long-established standards
governing the application of that clause.

															The Equal Protection Clause prevents States from arbitrarily
treating people differently under their laws. Whether any such
differing treatment is to be deemed arbitrary depends on whether or
not it reflects an appropriate differentiating classification among
those affected; the clause has never been thought to require equal
treatment of all persons despite differing circumstances. The test
evolved by this Court for determining whether an asserted
justifying classification exists is whether such a classification
can be deemed to be founded on some rational and otherwise
constitutionally permissible state policy. See, e.g., Powell v.
Pennsylvania, 127 U. S. 678 ; Barrett v. Indiana, 229 U. S. 26 ; Walters v. City of St. Louis, 347 U.
S. 231 ; Baxstrom v. Herold, ante p. 383 U. S. 107 .
This standard reduces to a minimum the likelihood that the federal
judiciary will judge state policies in terms of the individual
notions and predilections of its Page 383 U. S. 682 own members, and, until recently, it has been followed in all
kinds of "equal protection" cases. [ Footnote 3/3 ] Reynolds v. Sims, supra, among its other breaks with
the past, also marked a departure from these traditional and wise
principles. Unless its "one man, one vote" thesis of state
legislative apportionment is to be attributed to the unsupportable
proposition that "Equal Protection" simply means indiscriminate
equality, it seems inescapable that what Reynolds really
reflected was but this Court's own views of how modern American
representative government should be run. For it can hardly be
thought that no other method of apportionment may be considered
rational. See the dissenting opinion of Page 383 U. S. 683 STEWART, J., in Lucas v. Forty-Fourth General Assembly of
Colorado, 377 U. S. 713 , 377 U. S. 744 ,
and my own dissenting opinion in Reynolds v. Sims, supra, at pp. 377 U.S.
615 -624.

															Following Reynolds the Court in Carrington v.
Rash, 380 U. S. 89 ,
applied the traditional equal protection standard in striking down
a Texas statute disqualifying as voters in state elections certain
members of the Armed Forces of the United States. [ Footnote 3/4 ] But today, in holding
unconstitutional state poll taxes and property qualifications for
voting and pro tanto overruling Breedlove v.
Suttles, 302 U. S. 277 , and Butler v. Thompson, 341 U.S. 937, the Court reverts to the
highly subjective judicial approach manifested by Reynolds. In substance the Court's analysis of the equal
protection issue goes no further than to say that the electoral
franchise is "precious" and "fundamental," ante p. 383 U. S. 670 ,
and to conclude that "[t]o introduce wealth or payment of a fee as
a measure of a voter's qualifications is to introduce a capricious
or irrelevant factor," ante p. 383 U. S. 668 .
These are, of course, captivating phrases, but they are wholly
inadequate to satisfy the standard governing adjudication of the
equal protection issue: is there a rational basis for Virginia's
poll tax as a voting qualification? I think the answer to that
question is undoubtedly "yes." [ Footnote 3/5 ] Page 383 U. S. 684 Property qualifications and poll taxes have been a traditional
part of our political structure. In the Colonies the franchise was
generally a restricted one. [ Footnote
3/6 ] Over the years, these and other restrictions were
gradually lifted, primarily because popular theories of political
representation had changed. [ Footnote
3/7 ] Often restrictions were lifted only after wide public
debate. The issue of woman suffrage, for example, raised questions
of family relationships, of participation in public affairs, of the
very nature of the type of society in which Americans wished to
live; eventually a consensus was reached, which culminated in the
Nineteenth Amendment no more than 45 years ago.

															Similarly with property qualifications, it is only by fiat that
it can be said, especially in the context of American history, that
there can be no rational debate as to their advisability. Most of
the early Colonies had them; many of the States have had them
during much of their histories; [ Footnote 3/8 ] and, whether one agrees or not, arguments
have been and still can be made in favor of them. For example, it
is certainly a rational argument that payment Page 383 U. S. 685 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 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. [ Footnote 3/9 ] Nondiscriminatory and fairly applied
literacy tests, upheld by this Court in Lassiter v. Northampton
Election Board, 360 U. S. 45 , find
justification on very similar grounds.

															These viewpoints, to be sure, ring hollow on most contemporary
ears. Their lack of acceptance today is evidenced by the fact that
nearly all of the States, left to their own devices, have
eliminated property or poll tax qualifications; by the cognate fact
that Congress and three-quarters of the States quickly ratified the
Twenty-Fourth Amendment, and by the fact that rules such as Page 383 U. S. 686 the "pauper exclusion" in Virginia law, Va.Const. § 23, Va.Code
§ 24-18, have never been enforced. [ Footnote 3/10 ]

															Property and poll-tax qualifications, very simply, are not in
accord with current egalitarian notions of how a modern democracy
should be organized. It is, of course, entirely fitting that
legislatures should modify the law to reflect such changes in
popular attitudes. However, it is all wrong, in my view, for the
Court to adopt the political doctrines popularly accepted at a
particular moment of our history and to declare all others to be
irrational and invidious, barring them from the range of choice by
reasonably minded people acting through the political process. It
was not too long ago that Mr. Justice Holmes felt impelled to
remind the Court that the Due Process Clause of the Fourteenth
Amendment does not enact the laissez-faire theory of
society, Lochner v. New York, 198 U. S.
45 , 198 U. S. 75 -76.
The times have changed, and perhaps it is appropriate to observe
that neither does the Equal Protection Clause of that Amendment
rigidly impose upon America an ideology of unrestrained
egalitarianism . [ Footnote
3/11 ]

															I would affirm the decision of the District Court.

															[ Footnote 3/1 ]

															Alabama, Mississippi, Texas, and Virginia.

															[ Footnote 3/2 ]

															In the Senate hearings leading to the passage of the Voting
Rights Act of 1965, some doubt was expressed whether state poll
taxes could be validly abolished through the exercise of Congress'
legislative power under § 5 of the Fourteenth Amendment. See Hearings on S. 1564 before the Senate Committee on the
Judiciary, 89th Cong., 1st Sess., 194-197 (1965). I intimate no
view on that question.

															[ Footnote 3/3 ]

															I think the somewhat different application of the Equal
Protection Clause to racial discrimination cases finds
justification in the fact that, insofar as that clause may embody a
particular value in addition to rationality, the historical origins
of the Civil War Amendments might attribute to racial equality this
special status. See, e.g., Yick Wo v. Hopkins, 118 U. S. 356 ; Shelley v. Kraemer, 334 U. S. 1 ; Takahashi v. Fish & Game Comm'n, 334 U.
S. 410 ; Brown v. Board of Education, 347 U. S. 483 ; Evans v. Newton, 382 U. S. 296 ; cf. Korematsu v. United States, 323 U.
S. 214 , 323 U. S. 216 . See Tussman & tenBroek, The Equal Protection of the
Laws, 37 Calif.L.Rev. 341 (1949); Wechsler, Toward Neutral
Principles of Constitutional Law, 73 Harv.L.Rev. 1, 33 (1959).

															A similar characterization of indigency as a "neutral fact,"
irrelevant or suspect for purposes of legislative classification,
has never been accepted by this Court. See Edwards v.
California, 314 U. S. 160 , 314 U. S.
184 -185 (Jackson, J., concurring). Griffin v.
Illinois, 351 U. S. 12 ,
requiring free trial transcripts for indigent appellants, and Douglas v. California, 372 U. S. 353 ,
requiring the appointment of counsel for such appellants, cannot
fairly be so interpreted, for, although reference was made
indiscriminately to both equal protection and due process, the
analysis was cast primarily in terms of the latter.

															More explicit attempts to infuse "Equal Protection" with
specific values have been unavailing. See, e.g., Patsone v.
Pennsylvania, 232 U. S. 138 (alienage); West Coast Hotel Co. v. Parrish, 300 U.
S. 379 (sex); Kotch v. Board of River Port Pilot
Comm'rs, 330 U. S. 552 , 330 U. S. 564 (Rutledge, J., dissenting) (consanguinity).

															[ Footnote 3/4 ]

															So far as presently relevant, my dissent in that case rested not
on disagreement with the equal protection standards employed by the
Court but only on disagreement with their application in that
instance. 380 U.S. at 380 U. S.
99 -101.

															[ Footnote 3/5 ]

															I have no doubt that poll taxes that deny the right to vote on
the basis of race or color violate the Fifteenth Amendment and can
be struck down by this Court. That question is presented to us in Butts v. Harrison, No. 655, the companion case decided
today. The Virginia poll tax is on its face applicable to all
citizens, and there was no allegation that it was discriminatorily
enforced. The District Court explicitly found "no racial
discrimination . . . in its application as a condition to voting." 240 F.
Supp. 270 , 271. Appellant in Butts, supra, argued
first, that the Virginia Constitutional Convention of 1902, which
framed the poll-tax provision, was guided by a desire to reduce
Negro suffrage, and second, that, because of the generally lower
economic standard of Negroes as contrasted with whites in Virginia
the tax does, in fact, operate as a significant obstacle to voting
by Negroes. The Court does not deal with this Fifteenth Amendment
argument, and it suffices for me to say that, on the record here, I
do not believe that the factors alluded to are sufficient to
invalidate this $1.50 tax whether under the Fourteenth or Fifteenth
Amendment.

															[ Footnote 3/6 ] See generally Ogden, The Poll Tax in the South 2
(1958); 1 Thorpe, A Constitutional History of the American People,
1776-1850, at 92-98 (1898); Williamson, American Suffrage From
Property to Democracy, 1760-1860, cc. l-4 (1960).

															[ Footnote 3/7 ] See Porter, A History of Suffrage in the United States
77-111 (1918); Thorpe, op. cit. supra at 97, 401;
Williamson, op. cit. supra at 138-181.

															[ Footnote 3/8 ] See generally Ogden, op. cit. supra; Porter, op. cit. supra. [ Footnote 3/9 ]

															At the Constitutional Convention, for example, there was some
sentiment to prescribe a freehold qualification for federal
elections under Art. IV, § 1. The proposed amendment was defeated,
in part because it was thought suffrage qualifications were best
left to the States. See II Records of the Federal
Convention 201-210 (Farrand ed.1911). Madison's views were
expressed as follows:

															"Whether the Constitutional qualification ought to be a
freehold, would with him depend much on the probable reception such
a change would meet with in States where the right was now
exercised by every description of people. In several of the States
a freehold was now the qualification. Viewing the subject in its
merits alone, the freeholders of the Country would be the safest
depositories of Republican liberty." Id. at 203. See also Aristotle, Politics, Bks.
III, IV; I Tocqueville, Democracy in America, c. xiii, at 199-202
(Knopf ed.1948).

															[ Footnote 3/10 ] See Harper v. Virginia State Board of
Elections, 240 F.
Supp. 270 , 271.

															[ Footnote 3/11 ]

															Justice Holmes' admonition is particularly appropriate:

															"Some of these laws embody convictions or prejudices which
judges are likely to share. Some may not. But a constitution is not
intended to embody a particular economic theory, whether of
paternalism and the organic relation of the citizen to the State or
of laissez faire. It is made for people of fundamentally
differing views, and the accident of our finding certain opinions
natural and familiar or novel and even shocking ought not to
conclude our judgment upon the question whether statutes embodying
them conflict with the Constitution of the United States."

															198 U.S. at 198 U. S.
75 -76.

Summary: In *Harper v. Virginia Board of Elections* (1966), the Supreme Court ruled that conditioning the right to vote on the payment of a fee or tax violates the Equal Protection Clause of the Fourteenth Amendment. The Court held that once the right to vote is granted, lines determining who can vote cannot be drawn in a way that causes discrimination. Wealth, like race or creed, is unrelated to a person's ability to participate in elections. The Court's interest in voting registration is limited to setting standards related to voter qualifications, and classifications that impact fundamental rights like voting must be closely scrutinized. This case overruled the previous decision in *Breedlove v. Suttles* and affirmed that voting rights in state elections are protected by the Constitution.