Harper v. Virginia Board of Elections/Dissent Harlan

by John Marshall Harlan II

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, ^[1] is perhaps in itself not of great moment. But that 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 ^[2] should be a matter 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, 589, 84 S.Ct. 1362, 1395, and Carrington v. Rash, 380 U.S. 89, 97, 85 S.Ct. 775, 780, 13 L.Ed.2d 675, 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. Commonwealth of Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; Barrett v. State of Indiana, 229 U.S. 26, 33 S.Ct. 692, 57 L.Ed. 1050; Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660; Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760. 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 own members, and until recently it has been followed in all kinds of 'equal protection' cases. ^[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 Stewart, J., in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632, and my own dissenting opinion in Reynolds v. Sims, supra, 377 U.S. at pp. 615-624, 84 S.Ct. at p. 1409.

Following Reynolds the Court in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, 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. ^[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, 58 S.Ct. 205, and Butler v. Thompson, 341 U.S. 937, 71 S.Ct. 1002, 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. 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. 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.' ^[5]

Property qualifications and poll taxes have been a traditional part of our political structure. In the Colonies the franchise was generally a restricted one. ^[6] Over the years these and other restrictions were gradually lifted, primarily because popular theories of political representation had changed. ^[7] Often restrictions were lifted only after wide public debate. The issue of woman suffrage, for example, raised question 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; ^[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 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. ^[9] Nondiscriminatory and fairly applied literacy tests, upheld by this Court in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, 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 the 'pauper exclusion' in Virginia law, Va.Const. § 23, va.Code § 24-18, have never been enforced. ^[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. People of State of New York, 198 U.S. 45, 75-76, 25 S.Ct. 539, 546, 49 L.Ed. 937. 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. ^[11]

I would affirm the decision of the District Court.

Notes

1  Alabama, Mississippi, Texas, and Virginia.

2  In the Senate hearing 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.

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, 6 S.Ct. 1064, 30 L.Ed. 220; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; cf. Korematsu v. United States, 323 U.S. 214, 216, 64 S.Ct. 193, 194, 89 L.Ed. 194. See Tussman & Ten-Broek, 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. 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, requiring free trial transcripts for indigent appellants, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, 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. Commonwealth of Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (alienage); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (sex); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 564, 67 S.Ct. 910, 911, 91 L.Ed. 1093 (Rutledge, J., dissenting) (consanguinity).

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 99-101, 85 S.Ct., at 781.

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.

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. 1-4 (1960).

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.

8  See generally Ogden, op. cit. supra; Porter, op. cit supra.

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).

10  See Harper v. Virginia State Board of Elections, 240 F.Supp. 270, 271.

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 75-76, 25 S.Ct., at 546-547.