Shriver
Center
May–June 2007

SARGENT SHRIVER
NATIONAL CENTER
ON POVERTY LAW
40 YEARS OF FIGHTING POVERTY
AND MORE RESOLUTE THAN EVER!

NONPROFIT ORG.

U.S. POSTAGE PAID
SPRINGFIELD, IL
PERMIT 430

Taking action to end poverty

Volume 41, Numbers 1–2    May–June 2007    1–114

40
National Center on Poverty Law
National Center on Poverty Law
National Center on Poverty Law

Volume 41, Numbers 1–2
Clearinghouse REVIEW

National Clearinghouse for Legal Services
National Clearinghouse for Legal Services
National Clearinghouse for Legal Services

50 East Washington Street Suite 500
Chicago, Illinois 60602

@

MORE:
Access to Health Care
for Children
Modern-Day Poll Tax
Tribal Families, Culture,
and Communities

–
–
–
]
[–––
Eviction for Criminal Activity
Extension of Time to Vacate
Rule 26(f) Conference

Medicare Coverage of
Dental Care

g
n
i
s
o
p
p
O
r
n
o
i
t
a
Worke
n
i
m
i
r
c
s
i
D
Sex
s
u
s
r
r
Ve
e
y
o
l
p
m
E
g
n
i
t
a
i
Retal

THE MODERN-DAY POLL TAX:
How Economic Sanctions
Block Access to the Polls
By Erika L. Wood and Neema Trivedi

Erika L. Wood
Project Director/Counsel
Right to Vote Project
Brennan Center for Justice
161 Ave. of the Americas
New York, NY 10013
212.992.8638
erika.wood@nyu.edu
Neema Trivedi
Former Research Associate,
Brennan Center for Justice
2233 E. Quiet Canyon Drive
Tucson, AZ 85718
203.507.5575
neema.trivedi@aya.yale.edu

[W]ealth or fee paying has
… no relation to voting
qualifications; the right
to vote is too precious, too
fundamental to be so burdened or conditioned.1

O

ver the past two
centuries, several de jure restrictions on the American franchise have been
lifted, expanding suffrage to white men without property, African Americans and other racial minorities, and women. Yet a large segment of the American public is still barred from the
political process because of felony convictions. Forty-eight states and the District of
Columbia have laws limiting the voting rights of people who are convicted of felonies,
resulting in the disenfranchisement of 5.3 million American citizens.2 Nearly four
million of those individuals are not in prison, and two million have fully served their
felony sentences but are still unable to vote.3
The past decade saw movement in the states to restore the vote to people with criminal convictions. Since 1997, sixteen states have reformed their laws to expand the
franchise or ease voting rights restoration procedures.4
Litigation efforts to challenge felony disenfranchisement have focused on its discriminatory history and impact in the United States. Many states originally enacted
felon voting bans alongside literacy tests and poll taxes in the Jim Crow era as a way to
bar African Americans from voting. Today, because of racial disparities in the criminal justice system, these laws continue to affect people of color disproportionately,
diluting the voting strength of their communities.
Harper v. Virginia State Board of Elections, 383 U.S. 663, 670 (1966).

1

For an overview of state laws regarding felon disenfranchisement, see Sentencing Project, Felony Disenfranchisement Laws
United States (2006), available at www.sentencingproject.org/Admin/Documents/publications/fd_bs_fdlawsinus.pdf;
Brennan Center for Justice, Felony Disenfranchisement Laws Across the United States (2006), available at www.brennancenter.
org/dynamic/subpages/download_file_47267.pdf.
2

in the

Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement

3

and

American Democracy 248–50 (2006).

4
Ryan King, Sentencing Project, A Decade of Reform: Felony Disenfranchisement Policy in
www.sentencingproject.org/Admin/Documents/publications/fd_decade_reform.pdf.

30

the

United States (2006), available at

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

While the disturbing racial impact of
felony disenfranchisement has rightfully
been at the center of the legal debate,
there has been less consideration of the
effect of such laws on low-income individuals. Like African Americans and Latinos, poor people are overrepresented
in the criminal justice system and thus
disproportionately affected by felony
disenfranchisement laws.5 Low-income
individuals face felon voting bans when
they are required to pay all the fines, fees,
court costs, restitution, and other legal
financial obligations associated with a
conviction before regaining the right to
vote, resulting in the de facto permanent
disenfranchisement of countless individuals who cannot pay.6 There has been
a notable increase in the variety, use, and
size of economic sanctions imposed on
such individuals in recent years, thus resulting in an even larger number of lowincome people who have felony convictions and are being denied the franchise
under this modern incarnation of the
poll tax.7
I.	 A Brief History of Felony
Disenfranchisement

Felony disenfranchisement laws in the
United States are deeply rooted in the difficult history of race relations in America.
Criminal disenfranchisement dates back
to colonial times; some states wrote the
restrictive provisions into their constitu-

tions as early as the 18th century. These
laws followed European models and were
generally limited to a few specific offenses.8 But by the end of the Civil War,
lawmakers found new uses for felony disenfranchisement. The period following
Reconstruction saw not only a surge in the
number of states enacting such laws but
also an expansion of disqualifying crimes
in already existing laws. These changes
achieved the intended result: removal of
large segments of the African American
population from the democratic process
for sustained periods and in some cases
for life.9
The spread of felony disenfranchisement
laws in the late 1800s was part of a larger
backlash against the adoption of the Reconstruction Amendments.10 Despite
newfound eligibility, many freedmen
remained practically disenfranchised as
a result of organized efforts to prevent
them from voting. Violence and intimidation were rampant, especially early on.
Over time, Democrats from the southern
states sought to solidify their hold on the
region by modifying voting laws to exclude African Americans from the polls
without overtly violating the Fourteenth
and Fifteenth Amendments.11 The legal
barriers employed (including literacy
tests, residency requirements, grandfather clauses, and poll taxes), while facially race-neutral, were designed to prevent
African Americans from voting.12

For instance, the U.S. Department of Justice reported in 1997 that “68 percent of people in prison had not completed
high school, 53 percent earned less than $1,000 in the month prior to their incarceration, and nearly one half were either
unemployed or working only part-time prior to their arrest.” Marc Mauer, Race to Incarcerate 178 (2006).
5

For a complete discussion of state statutes imposing legal financial obligations, see Brief for the Brennan Center for
Justice at New York University School of Law et al. as Amici Curiae Supporting Respondents 4–7, Madison v. Washington,
No. 78598-8 (Wash. Sup. Ct. April 21, 2006), available at www.brennancenter.org/dynamic/subpages/download_file_
36290.pdf.
6

7
See, e.g., Jon Wool & Don Stemen, Vera Institute of Justice, Changing Fortunes or Changing Attitudes? Sentencing and Corrections
Reforms in 2003, at 4 (2004), available at www.vera.org/publication_pdf/226_431.pdf; Fahy G. Mullaney, National Institute
of Corrections, U.S. Department of Justice, Economic Sanctions in Community Corrections 1 (1988), available at www.nicic.
org/pubs/pre/006907.pdf.

See Angela Behrens et al., Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon
Disenfranchisement in the United States, 1850–2002, 109 American Journal of Sociology 559, 563 (2003), available at
www.journals.uchicago.edu/AJS/journal/issues/v109n3/080073/080073.web.pdf.
8

Id. at 560–61; see also Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the
United States, 2002 Wisconsin Law Review 1045, 1087–88 (2002).
9

10

Manza & Uggen, supra note 3, at 56–57; Behrens et al., supra note 8, at 560; Ewald, supra note 9, at 1087.

Alexander Keyssar, The Right
9, at 1087.
11

to

Vote: The Contested History

of

Democracy

in the

United States 111 (2000); Ewald, supra note

See, e.g., Harper, 383 U.S. 663 (poll tax); Guinn v. United States, 238 U.S. 347 (1915) (grandfather clause). See also
Keyssar, supra note 11, at 111–12; Behrens et al., supra note 8, at 563; Ewald, supra note 9, at 1087.

12

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

31

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

Felony disenfranchisement laws were
part of this effort to maintain white control over access to the polls. Between 1865
and 1900 eighteen states adopted laws
restricting the voting rights of criminal
offenders. By 1900 thirty-eight states
had some type of felon voting restriction,
most requiring a pardon before voting
rights could be restored.13
At the same time states expanded the
criminal codes to punish offenses that
they believed freedmen were most likely
to commit, including vagrancy, petty larceny, miscegenation, bigamy, and receiving stolen goods.14 Aggressive arrest and
conviction efforts followed, motivated by
the practice of “convict leasing,” whereby
former slaves were convicted of crimes
and then leased out to work the plantations and factories from which they had
ostensibly been freed.15
This mass incarceration produced not
only reenslavement but also mass disenfranchisement, usually for life. Those
state laws and constitutions that specified disqualifying crimes focused on the
often petty offenses that white lawmakers associated with freedmen—leaving
out more serious crimes, such as murder,
then considered to be “white” crimes.16
Thus felony disenfranchisement, though
ancient in its origins, was pressed into
service to suppress the political power of
African Americans.17

II.	 The Racial Impact of
Felony Disenfranchisement

Not surprisingly, given the historical origins of felony disenfranchisement laws in
the United States, these laws continue to
affect people of color disproportionately.
Regardless of the discriminatory intent
behind a given state’s felony disenfranchisement provision, the continuing
disparate effect on racial minorities cannot be disputed.
Nationwide 13 percent of African American men have lost the right to vote, a rate
that is seven times the national average.18
In fourteen states more than one in ten
African Americans may not vote due to a
felony conviction, and four of those states
disenfranchise more than 20 percent of
the African American voting-age population.19 Similarly, in nine out of ten states
with significant Latino populations, Latinos are overrepresented among the disenfranchised. For instance, in New York,
Latinos make up 34 percent of the disenfranchised population but only 10 percent
of the citizen voting-age population.20
These trends mirror stark racial disparities in the criminal justice system. Nearly half of U.S. prison inmates are African
American and 20 percent are Latino even
though they make up only 13 percent and
12.5 percent of the national population,
respectively.21 And African Americans
are seven times more likely to be incarcerated than whites.22

Manza & Uggen, supra note 3, at 55, 238–39 (a typo in the text indicates twenty-eight states, but the table correctly
lists thirty-eight).
13

14

Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, at 593 (1988); Ewald, supra note 9, at 1088–89.

15

Foner, supra note 14, at 205; Mauer, supra note 5, at 131–32.

16

Manza & Uggen, supra note 3, at 43, 55; Ewald, supra note 9, at 1088–89

17

See Hunter v. Underwood, 471 U.S. 222 (1985).
See Sentencing Project, supra note 2, at 1.

18

Manza & Uggen, supra note 3, at 79–80.

19

Marisa J. Demeo & Steven A. Ochoa, MALDEF [Mexican American Legal Defense and Educational Fund], Diminished Voting Power
Community: The Impact of Felony Disenfranchisement Laws in Ten Targeted States 16 (2003), available at www.maldef.
org/publications/pdf/FEB18-LatinoVotingRightsReport.pdf.
20

in the Latino

See Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, U.S. Department of Justice, Prisoners in 2005 (2006), available at www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf; U.S. Census Bureau, Population by Race Alone, Race in Combination Only, Race
Alone or in Combination, and Hispanic or Latino Origin, for the United States: 2000 (2001), available at www.census.gov/population/cen2000/phc-t1/tab03.pdf.
21

Mauer, supra note 5, at 139.

22

32

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

These disparities are at least partially attributable to the “war on drugs.” Overall
the prioritization of combating illegal
drug use and trade in the United States
has caused prison populations to skyrocket; the number of inmates incarcerated for drug offenses at all levels has
risen by more than 1,000 percent from
40,000 in 1980 to 453,000 by 1999.23 At
the same time the “war on drugs” has disproportionately affected minority communities. Between 1985 and 1995 there
was a 707 percent increase in the number of African Americans imprisoned for
felony drug offenses; this compares to a
306 percent increase for whites.24
Proponents of felony disenfranchisement argue that these disparities are
merely the result of a higher propensity
among members of minority communities to commit crime. Yet the overrepresentation of African Americans and Latinos in the criminal justice system cannot
be explained by differing crime rates
alone. For instance, nationwide 56 percent of those incarcerated on felony drug
charges are African American, while African Americans constitute only 13 percent of monthly drug users. Whites make
up only 19 percent of drug prisoners but
74 percent of monthly users.25
III.	 Equal Protection and Voting
Rights Act Challenges

The disproportionate racial impact of
felony disenfranchisement laws has not
Ryan S. King & Marc Mauer, Distorted Priorities: Drug Offenders
ject.org/pdfs/9038.pdf.
23

24

Mauer, supra note 5, at 168.

25

King & Mauer, supra note 23, at 11.

gone unchallenged. The laws in Alabama,
California, Florida, New York, and Washington State have all been challenged
over the last thirty years with decidedly
mixed results.
The landmark U.S. Supreme Court decision on felony disenfranchisement is
Richardson v. Ramirez, holding that state
laws that disenfranchise people with
felony convictions do not violate the
equal protection clause of the Fourteenth
Amendment.26 In so holding, the Court
said that Section 2 of the Fourteenth
Amendment, which reduces a state’s
representation in Congress if the state
denies the right to vote for any reason
“except for participation in rebellion,
or other crime,” distinguishes felony
disfranchisement from other forms of
voting restrictions.27 The Court interpreted this phrase to exempt felony disenfranchisement laws effectively from
the heightened scrutiny given to other
voting restrictions.28
Richardson’s sweeping ruling does not
preclude challenges alleging that felony
disenfranchisement statutes intentionally discriminate on the basis of race.
More than a decade later, the Court decided Hunter v. Underwood, holding that
Alabama’s felony disenfranchisement
scheme had been passed with racial animus and was therefore unconstitutional.29 The Court concluded that Section 2
of the Fourteenth Amendment was “not
designed to permit the purposeful racial
in

State Prisons 1 (2002), available at http://sentencingpro-

Richardson v. Ramirez, 418 U.S. 24 (1974) (Clearinghouse No. 8,241). The decision overturned the California Supreme
Court, which had found that the state’s permanent disenfranchisement law violated the equal protection clause. See
Ramirez v. Brown, 507 P.2d 1345 (1973). California’s law has since been amended to disenfranchise only those who are
in prison or on parole. See Cal. Elec. Code § 2212 (2006).
26

27

Richardson, 418 U.S. at 54.

Id. For a discussion of theories on which Richardson might be overruled, see Jason Morgan-Foster, Transnational
Judicial Discourse and Felon Disenfranchisement: Re-Examining Richardson v. Ramirez, 13 Tulsa Journal of Comparative
and International Law 279 (2006); John R. Cosgrove, Four New Theories Against the Constitutionality of Felony
Disenfranchisement, 26 Thomas Jefferson Law Review 157 (2004).
28

Hunter, 471 U.S. at 222. The Alabama statute challenged in Hunter disqualified, from voting, persons convicted of
crimes of “moral turpitude,” a category including minor misdemeanor offenses such as petty larceny and omitting more
serious offense such as second-degree manslaughter. Id. at 226–27. The U.S. Supreme Court affirmed the lower court’s
finding that the Alabama state legislature had deemed crimes of “moral turpitude” as those that warranted disenfranchisement because they were crimes more often committed by African Americans. Id. at 224, 233.
29

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

33

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

discrimination attending the enactment
and operation of [the felony disenfranchisement statute] which otherwise violates Section 1 of the Fourteenth Amendment.”30 The standard set forth in Hunter
is a stringent one, requiring plaintiffs to
prove that a felony disenfranchisement
law was passed with racially discriminatory legislative intent—an extremely difficult showing to make.
Because of the constitutional hurdles
created by Richardson, advocates have
sought to challenge felony disenfranchisement under Section 2 of the Voting Rights Act, which prohibits all state
practices denying or abridging the right
to vote on account of race or color and
does not require a plaintiff to prove discriminatory intent when challenging
a voting qualification or practice with
discriminatory effects.31 Advocates argue that felony disenfranchisement laws
violate Section 2 of the Act because they
deprive a disproportionately minority
population of the right to vote.
Most recently, challenges under the Act
were brought in Washington, New York,
and Florida with varied results. While
the Ninth Circuit held that felony disenfranchisement laws could be challenged
under the Act, the Eleventh and Second
Circuits held that such a claim was not
valid.
In the Washington case Farrakhan v. Gregoire the Ninth Circuit Court of Appeals
reasoned that, to the extent racial bias
in the criminal justice system contributes to the conviction of minorities for
disenfranchising crimes, felon disen30

Id. at 233.

31

Voting Rights Act of 1965, 42 U.S.C. § 1973 (2000).

franchisement would “clearly hinder the
ability of racial minorities to participate
effectively in the political process.”32
Upon remand, the district court stated that it had “no doubt that members
of racial minorities have experienced
discrimination in Washington’s criminal justice system” but concluded that
“Washington’s history, or lack thereof, of
racial bias in its electoral process and in
its decision to enact the felony disenfranchisement provisions, counterbalance[s]
the contemporary discriminatory effects
that result from the day-to-day functioning of Washington’s criminal justice system.”33 The district court decision is now
back on appeal to the Ninth Circuit.
Johnson v. Bush challenged Florida’s constitutional provision that bars persons
with felony convictions from voting for
life unless the governor grants an individual clemency application.34 In sharp
contrast to the Ninth Circuit’s ruling,
the Eleventh Circuit ruled en banc that
Florida’s felony disenfranchisement law
could not be challenged under the Voting Rights Act.35 Following Richardson,
the Eleventh Circuit read Section 2 of the
Fourteenth Amendment to sanction felony disenfranchisement explicitly. Based
on this, the court concluded that if it applied the Act to Florida’s felony disenfranchisement law, it would be allowing
a congressional statute to contradict the
Fourteenth Amendment as interpreted
by Richardson. If Congress had intended
the Act to cover felony disenfranchisement, Congress should have done so explicitly, and the court found no evidence
in the congressional record that the Act

Farrakhan v. Gregoire, 338 F.3d 1009 (9th Cir. 2003) (Clearinghouse No. 55,376), rehearing and rehearing en banc
denied, 359 F.3d 1116 (9th Cir. 2004).
32

33

Id., No. CV-96-076-RHW, 2006 WL 1889273, at *9 (E.D. Wash. July 7, 2006).

Johnson v. Bush, 405 F.3d 1214 (11th Cir. 2005) (Clearinghouse No. 53,644) (en banc). Florida’s law provides “[n]o person convicted of a felony … shall be qualified to vote or hold office until restoration of civil rights or removal of disability.”
Fla. Const. art. VI, § 4. A person with a felony conviction may apply for clemency to have his civil rights restored. Fla. Stat.
§ 940.03 (2006). The Clemency Board is made up of the governor of Florida and members of the cabinet. See [Florida]
Rules of Executive Clemency (2004), available at https://fpc.state.fl.us/Policies/ExecClemency/ROEC12092004.pdf.
34

Johnson, 405 F.3d at 1234. Plaintiffs also argued that racial animus motivated the adoption of Florida’s felony disenfranchisement provision in violation of the equal protection clause. Id. at 1217. Although the court acknowledged evidence of
racial animus behind certain constitutional provisions, it determined that a 1968 reenactment of the Florida Constitution
“eliminated any taint from the allegedly discriminatory [earlier] provision ….” Id. at 1224 (citing Cotton v. Fordice, 157
F.3d 388, 391 (5th Cir. 1988)).
35

34

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

was meant to apply to felony disenfranchisement laws.36
Hayden v. Pataki and Muntaqim v. Coombe
are consolidated cases challenging New
York’s felony disenfranchisement law
barring people with felony convictions
from voting while they are in prison or
on parole.37 Plaintiffs argued, among
other claims, that discrimination in the
criminal justice system resulted in minority groups being disenfranchised at
much higher rates than whites and that
the law therefore denied—in violation of
the Voting Rights Act—the right to vote on
account of race.38 The court rejected this
claim, siding with the Eleventh Circuit
in Johnson by concluding that “Congress
did not intend or understand the Voting
Rights Act to encompass” felony disenfranchisement statutes.39
The Eleventh and Second Circuits seem
to have strayed far from the Voting Rights
Act’s plain meaning and legislative history to find a basis upon which to dismiss
plaintiffs’ claims under the Act. There
is substantial evidence that Congress
intended for the Act to apply to all practices resulting in the denial or limitation
of the right to vote on account of race or
color, which could include felony disenfranchisement. Even in the absence of
intentional race discrimination underlying enactment of the disenfranchisement
provision, the facially neutral practice of
felon disenfranchisement can interact
with social and historical conditions to
result in the denial of the right to vote “on
account of race.” Moreover, the history of
36

the Act cannot be ignored. It was passed
in response to rampant violations of the
Fifteenth Amendment. African Americans were often robbed of opportunities
to participate in the political process
because of widespread exclusionary
policies, including felony disenfranchisement. History demonstrated that
discrimination in voting was too resilient for the Fifteenth Amendment alone
to rectify, so Congress adopted the Act as
a comprehensive means of enforcing the
Fifteenth Amendment’s promise.40
IV.	 The Modern-Day Poll Tax

The effects of felony disenfranchisement
laws continue to expose the laws’ deep
roots in the troubled history of American
race relations. But many felon disenfranchisement laws also expose a more
subtle form of discrimination: a distinction based on wealth and class. A number
of states, either explicitly or implicitly,
require individuals to pay all fees, fines,
and restitution before allowing them to
register to vote, a burden that falls disproportionately on the poor, thereby establishing a modern-day poll tax.
In the United States legal financial obligations generally accompany probation or incarceration sentences.41 Most
criminal defendants face multiple legal
financial obligations at the same time,
making it difficult for them ever to pay
their debts in full.42 Legal financial obligations are most commonly imposed on
people serving probation, and full payment can be a condition of discharge.

Id., 405 F.3d at 1234.

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc). Muntaqim v. Coombe was subsequently dismissed for lack of
standing. See 449 F.3d 371, 376–77 (2d Cir. 2006) (Clearinghouse No. 55,722) (per curiam). New York Election Law provides that no person convicted of a felony “shall have the right to register for or vote at any election” unless he has been
pardoned, his maximum sentence of imprisonment has expired, or he has been discharged from parole.” N.Y. Elec. Law
§ 5-106 (2006). Hayden and Muntaqim were not the first cases to challenge New York’s felony disenfranchisement law. In
1996 the Second Circuit, sitting en banc, decided Baker v. Pataki, 85 F.3d 919 (1996). The ten appellate judges who heard
the appeal were deadlocked, issuing three opinions and ultimately affirming the district court’s dismissal of the plaintiff’s
claim. Baker, 85 F.3d at 921. Because the court was evenly divided, the opinions have no precedential effect.
37

Hayden, 449 F.3d at 311. New York’s law disenfranchises over 4 percent of the state’s African American population. See
Manza & Uggen, supra note 3, at 252.

38

39

Hayden, 449 F.3d at 310.

40

See South Carolina v. Katzenbach, 383 U.S. 301, 315, 328 (1966); see also Keyssar, supra note 11, at 264.

R. Barry Ruback & Mark H. Bergstrom, Economic Sanctions in Criminal Justice: Purposes, Effects, and Implications, 33
Criminal Justice and Behavior 243 (2006).

41

42

For a further discussion of these obligations, see generally Mullaney, supra note 7.

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

35

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

Requiring payment of these obligations
before discharge can prolong the amount
of time one is under supervision. Because
failure to pay in most states results in an
extension of the supervision period, individuals may fulfill all other obligations
of their probation, except for the legal financial obligations, and still be forced to
remain under supervision.43
A.	 Types of Economic Sanctions

Economic sanctions can be viewed on a
continuum from those that serve to punish the offender to those that serve to restore the victim.44 Restitution orders are
geared almost entirely toward the victim’s
needs, while fines are imposed primarily
to punish the offender. In the middle of
that spectrum are fees and costs, which
can be seen as reparations for society—
shifting the financial burden of criminal
justice operations from the public to the
defendants themselves.45 Increasingly,
however, economic sanctions are no longer aimed solely at benefiting victims
and punishing offenders. Instead policymakers are using legal financial obligations “simply to keep the system in the
black.”46 All in all, researchers estimate
that economic sanctions provide up to $2
billion in revenue a year nationwide.47
1.	 Restitution

A “court-ordered payment to compensate the victim for loss or damage,” restitution can include payments for medical
43

Id. at 15.

44

Ruback & Bergstrom, supra note 41, at 249.

45

Id.

expenses or stolen property.48 Nationally
restitution is ordered in 14 percent of all
felony convictions, most commonly for
property-related offenses.49 According to one study conducted in thirty-two
counties, the average order imposed per
felony probationer is $3,368.50 Since
1990, all states have implemented restitution statutes.51 At the federal level the
Victim Witness and Protection Act allows
federal courts to order restitution at their
own discretion as a condition of probation; this is in addition to prison terms
and other fines.52 The Mandatory Victim
Restitution Act goes even further and now
requires that federal judges impose restitution “without consideration of the economic circumstances of the defendant.”53
2.	 Fines

Monetary penalties, fines are imposed
usually at a fixed rate based on the severity of the crime. Most states establish
maximum and minimum fines for each
degree of crime, ranging from serious
felonies to misdemeanors—the amounts
of the fines decreasing with the seriousness of the offense. Fines provide general
revenue for a number of state programs.
For example, in the federal system most
fines are deposited in the Crime Victims’
Fund to support state victim compensation programs.54 “Forfeiture,” or the
government seizure of property obtained
through or connected in some way to illegal activity, is also usually considered

Kirsten D. Levingston, Making the “Bad Guy” Pay: Growing Use of Cost Shifting as an Economic Sanction 4, in Prison
Profiteers (Tara Herivel & Paul Wright eds., forthcoming Nov. 2007) (in Erika L. Wood’s files).
46

Mullaney, supra note 7, at 13.

47

Id. at 2.

48

Ruback & Bergstrom, supra note 41, at 251.

49

Id.

50

Id. at 249.

51

Victim Witness and Protection Act of 1982, 18 U.S.C. § 3663 (2000); see also Brian Kleinhaus, Serving Two Masters:
Evaluating the Criminal or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the
Abatement Doctrine, and the Sixth Amendment, 73 Fordham Law Review 2711, 2712 (2005).
52

36

53

18 U.S.C. § 3664(f)(1)(A); see also Kleinhaus, supra note 52, at 2712.

54

Ruback & Bergstrom, supra note 41, at 258.

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

in this category, although forfeiture is not
usually part of the criminal sentence.55
Fines are most commonly imposed for
traffic offenses. In other contexts, setting a standardized fine amount large
enough to serve a punitive value without
being unfair to indigent criminal defendants is difficult.56 Fines are imposed for
approximately 25 percent of all felony
convictions, including 20 percent of
violent offenses, 24 percent of property
offenses, 27 percent of drug offenses, 19
percent of weapons offenses, and 27 percent of other offenses.57
3.	 Costs and Fees

Both costs and fees are charged to “reimburse the state for the administrative
cost of operating the criminal justice
system.”58 Costs are blanket charges, imposed by the courts on all convicted persons. Fees, by contrast, are charged in
exchange for individual services.
A sampling of costs and fees includes the
following:59
n	 Supervision

fee—most people on parole and probation have to pay either a
flat fee or a monthly fee to help cover
the cost of their supervision.

n	 Presentence

report fee—defendants
typically pay a flat fee that goes toward
gathering data that will affect the sentencing outcome.60

55

n	 Restitution collection fee—many juris-

dictions typically charge an additional
percentage of the total restitution
amount to cover collection costs.61

n	 Public

defender fee—usually set by the
judge, this fee reimburses court-appointed attorneys for their work on an
individual’s criminal defense.62

n	 Alcohol

or drug counseling fee—typically people convicted of drug and alcohol-related offenses pay a weekly fee
for counseling services, imposed as a
condition of their probation.63

n	 Drug-testing

fee—this can be assessed
as a flat fee or on a weekly basis to cover
the costs of periodic drug testing for
people undergoing substance abuse
treatment.64

n	 DNA

fee—defendants are sometimes
charged for the cost of DNA analyses
used in their case.65

n	 Electronic

monitoring fee—individuals may be charged for the costs of being monitored electronically.66

The National Institute of Corrections
aptly notes that most defendants are
charged several of these fees and costs,
creating an especially burdensome financial debt. The institute identifies
other assessments as well, such as late
payment interest fees, charged when legal financial obligations are not paid by

Id. at 257.

Id. at 259–260. Judges generally impose fines at a fixed “going rate,” depending on the crime type, with no individualized evaluation of a person’s ability to pay. See, e.g., Susan Turner & Judith Greene, The Fare Probation Experiment:
Implementation and Outcomes of Day Fines for Felony Offenders in Maricopa County, 21 Justice System Journal 1, 3
(1999).
56

57

Ruback & Bergstrom, supra note 41, at 260.

58

Id. at 253.

Recent data on the “typical” amounts of fees and costs are little. In this section, unless otherwise noted, the “typical”
amounts listed are from 1988, as reported by the National Institute of Corrections. See Mullaney, supra note 7, at 1.
59

60

Id. at 3, 7.

61

Id.

62

Typically these costs are calculated as the number of hours worked multiplied by an hourly rate. Id. at 3.

63

Id. at 3, 7.

64

Id. at 3.

65

See, e.g., Ruback & Bergstrom, supra note 41, at 254.

66

Id.

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

37

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

the deadline, and victim advocate fees
used to support a victim’s advocate office
in the jurisdiction.67
B.	 Growth in the Use of
Economic Sanctions

Although economic sanctions are not
new in the criminal context, their use in
the United States has been growing in the
past few decades. Scholars cite three reasons for this increase. First, as the costs
of the criminal justice system continue
to rise, individuals are increasingly expected to share the financial burden of
their own incarceration or supervision.68
Economic sanctions are viewed as an alternative source of revenue for corrections operations in lieu of raising taxes.
As costs shift to defendants, the public is
relieved of bearing the financial responsibility of the criminal justice system.69
Second, because of the successful victims’ rights movement, courts are more
likely to order restitution out of concern
for the needs and rights of crime victims.70 Third, economic sanctions are
increasingly seen as an alternative to incarceration. To defray the rising costs of
building and maintaining prisons, and to
deal with the limited space availability in
current facilities, jurisdictions are considering monetary sanctions as a standalone punitive measure.71
These trends have persisted in recent
years, particularly because states are
dealing with heightened budget pressure. In the 2004 fiscal year states faced
67

an aggregate budget deficit of $78 billion,
and several jurisdictions responded by
cutting corrections expenditures.72 To
compensate, costs have been shifted to
the criminal defendants subject to the
correctional system. In 2003 twenty
states introduced bills shifting corrections costs to defendants either by introducing new economic sanctions or by increasing the amounts of costs and fees.73
For instance, Florida introduced a $40
fee to apply for appointed counsel; Illinois enacted an interstate parole transfer fee of up to $125 and doubled monthly
probation fees to $50; Oklahoma quadrupled monthly electronic monitoring
fees to $300; and Tennessee increased
its monthly probation fee by $10.74
The growth of economic sanctions has a
particularly devastating effect on African
Americans and Latinos—groups disproportionately represented in the criminal
justice system and the lowest economic
brackets. Latest estimates show that 60
percent of state and federal prisoners
were African American or Latino.75 In
2005 the poverty rate for African Americans was 24.9 percent, with 9.2 million
living in poverty; for Latinos, 21.8 percent, with 9.4 million living in poverty.76
By contrast, the poverty rate for nonLatino whites was 8.3 percent, with 16.2
million people living in poverty.77
C.	 Economic Sanctions and the
Right to Vote

By themselves economic sanctions create a substantial hurdle for people com-

Mullaney, supra note 7, at 4.

R. Barry Ruback, The Imposition of Economic Sanctions in Philadelphia: Costs, Fines, and Restitution, 68 Federal Probation
21, 21 (2004); see also Levingston, supra note 46, at 8–9.
68

69

70

71

Mullaney, supra note 7, at 2; see also Levingston, supra note 46, at 11–12.
For a discussion of the victims’ rights movement, see Ruback & Bergstrom, supra note 41, at 21.
Id.

In the 2003 fiscal year 2003 at least nine states decreased their actual expenditures for corrections. Wool & Stemen,
supra note 7, at 2.
72

73

Id. at 4.

74

Id.

75

Harrison & Beck, supra note 21, at 8; see also Levingston, supra note 46, at 7.

Carmen DeNavas-Walt et al., U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2005, at
13–15 (2006), available at www.census.gov/prod/2006pubs/p60-231.pdf.
76

77

38

Id.

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

ing out of prison and trying to reenter the
community. When coupled with voting
qualifications, legal financial obligations
can and do result in a person’s lifelong
exclusion from the political process. Ten
states explicitly condition the restoration
of voting rights on an applicant’s full payment of at least some of the court-ordered
costs associated with the conviction.78 In
at least two of those states, Arkansas and
Washington, the requirement of the full
payment of all legal financial obligations
is the only legal provision that may extend
disenfranchisement beyond the completion of correctional supervision.
Beyond these explicit requirements,
many states have “implicit” legal financial obligation requirements in two
forms. One, in some states there is no explicit mention of these obligations in the
voting qualification provision, but those
states require that the individual complete all correctional supervision before
regaining the right to vote, and in order
to be discharged from supervision the
individual may not have any outstanding legal financial obligations. By virtue
of any outstanding monetary obligation,
the individual may be forced to remain
under correctional supervision despite
fulfilling all other requirements of the
probation or parole term. Thus, although
not explicitly required by statute, the legal financial obligation remains the sole
bar to discharge from supervision and to
voting rights restoration.
The other form of implicit legal financial obligation requirements is found
in those states that restore voting rights
“upon completion of sentence.” Some of
78

these states specifically include fines and
restitution as part of the sentence. Others do not define the term “sentence,”
and whether individuals in those states
have to satisfy their legal financial obligations in order to vote is unclear.
The following discussion of Washington
State’s law is one example of how a legal
financial obligation requirement disenfranchises otherwise eligible individuals.79
The Effect of Interest Payments in
Washington State. In Washington State
persons convicted of a felony are disenfranchised until their civil rights are
restored.80 After they complete all the requirements of their sentence “including
any and all legal financial obligations,”
they are granted from the sentencing
judge a certificate of discharge that restores their right to vote.81 As such, citizens who complete their sentences but
have outstanding legal financial obligations may not vote—a scheme that the
New York Times aptly labels “Dickensian
Democracy.”82
Over the past twenty years Washington
State has been adding many new categories of legal financial obligations. Today
people with felony convictions in the
state may be responsible for paying some
or all of the following assessments: restitution to the victim; crime victims’ compensation fees; court costs; county or
interlocal drug funds; court-appointed
attorney fees; costs of defense; expenses
related to emergency response; costs of
supervision and incarceration; DNA database costs; and various fines.83 The size

See Brief for the Brennan Center for Justice, supra note 6, at 5.

Although we use Washington State as a case study in how legal financial obligations constitute a poll tax–type of voting
restriction, other states impose similar requirements. For instance, in Alabama more than half of applicants to that state’s
Board of Pardons and Paroles are denied reinstatement of voting rights due to outstanding legal financial obligations.
See Alabama Alliance to Restore the Vote & Brennan Center for Justice at NYU School of Law, Voting Rights Denied in Alabama
4 (2006), available at www.brennancenter.org/dynamic/subpages/download_file_9361.pdf. Tennessee takes an unprecedented and unique approach by requiring that offenders pay not only all legal financial obligations but also be current
on any outstanding child support obligations. See Tenn. Code Ann. § 40-29-202(c) (2006).
79

80

See Wash. Const. art. VI, § 3.

81

See Wash. Rev. Code § 9.94A.637(1)(a), (4) (2006).

82

Editorial, Dickensian Democracy, N.Y. Times, Feb. 27, 2006, at A18.

See Wash. Rev. Code §§ 9.94A.030(28), .760(2), .780; 43.43.7541. See also Brief of Plaintiffs 4, Madison v. Washington,
No. 04-2-33414-4-SEA (Wash. Super. Ct. Oct. 20, 2004), available at http://brennancenter.org/dynamic/subpages/download_file_36283.pdf.
83

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

39

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

of the economic sanctions imposed has
also increased dramatically: for example,
in 1977 offenders paid $25 into the crime
victim compensation fund; today they
pay $500.84
On top of these heavy sanctions, interest
accrues on any unpaid legal financial obligation debt at a rate of 12 percent from
the date of entry of judgment.85 County
clerks can impose fees and surcharges
on outstanding legal financial obligation balances. For instance, King County
may charge $100 per year, per case, for
the collection of outstanding payments.86
Policies like this lead to the imposition of
interest and collection fees resulting in
an ever-increasing outstanding debt.
This payment structure permanently disenfranchises people who cannot afford to
pay higher monthly sums. Because their
debt continues to increase due to interest
accrual and collection surcharges, some
individuals may never be able to pay
their legal financial obligations fully and
therefore will never regain their right to
vote.
This is the case for Beverly DuBois. When
she was convicted of manufacturing and
delivering marijuana in 2002, she was
ordered to pay legal financial obligations
totaling $1,610 ($500 victim assessment
fee, $110 in court costs, and $1,000 to a
county drug enforcement fund).87 She
has now completed all the nonfinancial
elements of her sentence. Despite a permanent disability that rendered her unable to work, DuBois manages to make
84

regular monthly payments of $10 toward
the legal financial obligations.88
Thus far DuBois has paid $190 in accordance with the $10 a month payment
schedule set by the court. However, due
to accrued interest, her debt has increased to nearly $1,900.89 At the rate she
currently pays, her debt will continue to
grow each year even as she continues to
make payments. Under this structure,
DuBois will never pay off her full debt
and thus is denied the right to vote indefinitely.
In 2004 the ACLU of Washington sued
the state on behalf of DuBois and others similarly situated by challenging
the state’s felony disenfranchisement
scheme. The case, Madison v. Washington,
argues that denying individuals the right
to vote unless and until they satisfy all legal financial obligations violates both the
equal protection clause of the Fourteenth
Amendment and the privileges and immunities clause of Article I of the Washington Constitution.90 In April 2006 the
King County Superior Court, finding that
the legal financial obligation requirement discriminated on the basis of wealth
in violation of the equal protection clause
of the Fourteenth Amendment, ruled in
favor of the plaintiffs.91
People with felony convictions have no
fundamental interest in the right to vote
under Richardson v. Ramirez, the superior court ruled. Consequently, while
the equal protection clause of the Fourteenth Amendment applies to plaintiffs’

See Wash. Rev. Code § 7.68.35. See also Brief of Plaintiffs, supra note 83, at 4.

See Wash. Rev. Code §§ 10.82.090(1), 4.56.110(3), 19.52.020(1). See also Brief of Plaintiffs, supra note 83, at 4: “In
2004, the legislature enacted RCW 10.82.090(2) to give judges discretion to waive or reduce interest, but only after a
hearing in which the Court determines that the offender has made a good faith attempt at payment of the full amount
with interest.” Id.
85

86

See Brief of Plaintiffs, supra note 83, at 5.

87

Id. at 10.

88

Id. at 11.

89

Id.

Wash. Const. art. I, § 12 provides: “No law shall be passed granting any citizen, class of citizens, or corporation other
than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Wash. Const. art. I, § 19 provides: “All Elections shall be free and equal, and no power, civil or military, shall at any
time interfere to prevent the free exercise of the right of suffrage.”
90

Madison v. Washington, No. 04-2-33414-4-SEA, slip op. at 12 (Wash. Super. Ct. Mar. 27, 2006), available at www.
brennancenter.org/dynamic/subpages/download_file_36282.pdf.
91

40

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

claims, “the proper analysis is to determine whether there exists any rational
basis for the state to deny [plaintiffs] the
right to vote, while granting that right to
others who have been convicted of felony
offenses.”92 The court found none.
Continuing to disenfranchise those individuals who have not completed all
terms and conditions of their sentences
is rational, the state argued in defending its fees and fines, because the failure to complete those terms and conditions proves the individuals unwilling
to abide by the laws that result from the
electoral process.93 The court rejected
this argument; the issue in the case is not
the “broad question of whether the state
may properly distinguish between those
who have completed all sentence conditions and those who have not,” the court
stated.94 Instead, the court explained, the
issue before the court is “the narrower
question of whether there is a rational
justification for the state to grant the
right to vote to felons who are able to pay
their legal financial obligations immediately, while denying the right to those
… who, by reason of indigency, require a
period of time to pay.”95
Washington’s requirement that individuals satisfy all legal financial obligations
before they may vote violates, the court
concluded, the Fourteenth Amendment
as well as Article I of the Washington
State Constitution; the court found “no
logic in the assumption that a person in
92

Id., slip op. at 8.

93

Id. at 8–9.

94

Id. at 9.

95

Id.

possession of sufficient resources to pay
the obligation immediately is the more
law-abiding citizen” and “simply no rational relationship between the ability
to pay and the exercise of constitutional
rights.”96 Madison is now on appeal before the Washington Supreme Court.97
V.	 Other Approaches

Two approaches under U.S. Supreme
Court jurisprudence were not discussed
in the Madison decision but may provide
grounds on which to challenge legal financial obligation requirements. One is
to argue that the equal protection clause
prohibits states from extending individuals’ criminal sentences when their indigency prevents them from paying courtimposed economic sanctions. The other
is to claim that the imposition of legal
financial obligations as a prerequisite to
voting amounts to a poll tax in violation
of the Twenty-fourth Amendment.
A.	 Equal Protection Argument

Under a line of Supreme Court cases, a
plaintiff may argue that disenfranchisement by legal financial requirements may
violate the equal protection clause. The
first of these cases is Williams v. Illinois,
which overturned the Illinois Supreme
Court’s judgment requiring the appellant to remain in jail to “work off” the
monetary obligations that he was unable
to pay. 98 Although the maximum term of
imprisonment for the crime at issue was

Id. at 10–12. The court did not separately examine the state constitutional claims. Id. at 12 n.4. Although not cited by
the Madison court, the Second Circuit also recognized that a legal financial obligation requirement might be vulnerable
to an equal protection challenge. In Bynum v. Connecticut Commission on Forfeited Rights, 410 F.2d 173 (2d Cir. 1969)
(Clearinghouse No. 1,187), the Second Circuit reversed a district court ruling that a challenge to Connecticut’s $5 filing
fee for petitions to restore voting rights was not substantial enough to merit review by a three-judge court. The Second
Circuit distinguished previous challenges to Connecticut’s felony disenfranchisement law and stated that “[t]he focal
question is whether Connecticut, once having agreed to permit ex-felons to regain their vote and having established
administrative machinery for this purpose, can then deny access to this relief, solely because one is too poor to pay the
required fee.” Id. at 175–76. The court concluded that “the issue raised here is so closely intertwined with the exercise of
the political franchise … that we cannot dismiss the problem out of hand.” Id. at 177. There is no available subsequent
history in this case; Connecticut’s law was amended in 1972 to provide for automatic restoration of voting rights after
release from prison and discharge from parole. See Conn. Gen. Stat. § 9-46 (2006).
96

97

The appeal was heard on June 27, 2006. No decision has been issued at this writing.

98

Williams v. Illinois, 399 U.S. 235 (1970) (Clearinghouse No. 2,948).

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

41

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

one year, the trial court required appellant to be confined for 101 days beyond
the maximum sentence.99
Finding that the judgment below resulted in “an impermissible discrimination that rest[ed] on ability to pay,” the
Supreme Court vacated the judgment.100
States have “wide latitude” to establish
punishment for state crimes, the Court
acknowledged, but “once the State has
defined the outer limits of incarceration
necessary to satisfy its penological interests and policies, it may not then subject
a certain class of convicted defendants
to a period of imprisonment beyond the
statutory maximum solely by reason of
their indigency.”101 Although the Court
acknowledged that its holding in Williams did not reach the question whether
a state would be precluded in any other
circumstances from using a penal sanction to hold an indigent defendant accountable for a fine, it did state in dicta
that the state’s interest in collecting
revenues in the case was “not unlike the
State’s interest in collecting a fine from
an indigent person in circumstances
where no imprisonment is included in
the judgment.”102
A year later the Court decided Tate v.
Short, where the petitioner appealed his
sentence to serve time in the municipal
prison farm to work off unpaid traffic
fines when the traffic offenses themselves imposed no prison time.103 Relying on Williams, the Court found that the

sentence violated the equal protection
clause; because the state had legislated
a “fines only” policy for traffic offenses,
“the statutory ceiling cannot, consistently with the Equal Protection Clause, limit
the punishment to payment of the fine if
one is able to pay it, yet convert the fine
into a prison term for an indigent defendant without the means to pay his fine,”
the Court explained.104
In Bearden v. Georgia the Court barred
the state from revoking an indigent defendant’s probation for failure to pay a
fine and restitution.105 Conducting what
appears to be a rational-basis analysis,
the Court balanced appellant’s “significant interest” in remaining on probation
against the state’s interest in punishment
and deterrence.106 Finding that the state’s
interest could be served by other means,
the Court determined that the state’s
policy was “little more than punishing a
person for his poverty.”107
While the threat of going to prison clearly
weighs in favor of plaintiffs in these cases,
the denial of the right to vote remains a
grave and serious injury. As the Supreme
Court explains, “[n]o right is more precious in a free country than that of having a voice in the election of those who
make the laws under which … we must
live. Other rights, even the most basic,
are illusory if the right to vote is undermined.”108 The extension of a criminal
sentence that results in the continued
disenfranchisement of some citizens

Id. at 236–37. The Illinois Supreme Court held that “there is no denial of equal protection of the law when an indigent
defendant is imprisoned to satisfy payment of the fine.” Id. at 238 (quoting People v. Williams, 517 N.E.2d 197, 200
(Ill. 1969)).
99

Williams, 399 U.S. at 240–41.

100

Id. at 241–42. The Court concluded: “By making the maximum confinement contingent upon one’s ability to pay, the
State has visited different consequences on two categories of persons since the result is to make incarceration in excess
of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the
judgment.” Id. at 243.
101

Id. at 238, 243–44.

102

Tate v. Short, 401 U.S. 395 (1971).

103

Id. at 399.

104

Bearden v. Georgia, 461 U.S. 663 (1983).

105

Id. at 671.

106

Id.

107

See Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964).

108

42

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

solely because they cannot afford to pay
the economic sanctions imposed against
them directly contradicts the basic equal
protection principles established by Williams, Tate, and Bearden.
B.	 Twenty-fourth
Amendment Argument

Another possible theory argues that requiring individuals to satisfy all legal financial obligations before being allowed
to vote amounts to a poll tax in violation
of the Twenty-fourth Amendment.

a felony conviction, may be precluded by
common readings of Richardson.
Very few opinions explain the operation
or coverage of the Twenty-fourth Amendment. Of the few, two reject challenges to
legal financial obligation requirements.
Nevertheless, there is hope for success if
the attendant circumstances are right.

The Twenty-fourth Amendment, ratified
in 1964, provides: “The right of citizens
of the United States to vote in any primary or other election … shall not be denied
or abridged by the United States or any
State by reason of failure to pay poll tax
or other tax.”109 To enforce the Constitutional provision, Congress enacted Section 10 of the Voting Rights Act of 1965,
which also prohibits imposition of a poll
tax as a precondition to voting.110

In the years immediately after the Twenty-fourth Amendment was ratified, there
was a handful of cases invalidating explicit poll taxes, the most notable of which
is Harman v. Forssenius.111 In that case the
Court addressed the question of whether
Virginia could constitutionally require
voters in federal elections to either pay
the poll tax required for state elections or
file a certificate of residence.112 The Court
found this requirement to be unconstitutional, explaining that it imposed “a
material requirement solely upon those
who refuse to surrender their constitutional right to vote … without paying a
poll tax.”113

An argument can be made that the Twenty-fourth Amendment and Section 10 of
the Voting Rights Act are not subject to
the Supreme Court’s holding in Richardson because the Twenty-fourth Amendment comes after the Fourteenth Amendment and does not limit its coverage to
those who otherwise have a fundamental
right to vote. However, the extent of the
Twenty-fourth Amendment’s protection may be limited by its own terms. As
quoted above, the amendment protects
“the right of citizens of the United States
to vote in any primary or other election
….” Consequently, a claim under the
amendment may first have to show that
the plaintiff has a right to vote—a showing that, when brought by a person with

One year later Virginia’s poll tax was abolished in its entirety in the landmark case
Harper v. Virginia State Board of Elections.114
By relying on the equal protection clause,
rather than the Twenty-fourth Amendment, Harper struck down Virginia’s poll
tax for state and local elections. Harper’s
sweeping language provides a foundation
for all subsequent challenges to wealthbased voting qualifications. A state violates the equal protection clause, the Supreme Court held in ruling Virginia’s poll
tax unconstitutional, “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.”115 The Court concluded, “[W]ealth

U.S. Const. amend. XXIV.

109

42 U.S.C. § 1973h(a) (2000).

110

Harman v. Forssenius, 380 U.S. 541 (1965).

111

Id. at 538.

112

Id. at 1185. Note that, in addition to the specific language of the Twenty-fourth Amendment, the wording chosen by
the Court in Harman implies that the Amendment’s protections may be limited to those who can first establish a right
to vote.
113

Harper, 383 U.S. at 663.

114

Id. at 666. The court in Madison relied on Harper’s broad language. See Madison, slip op. at 11 (citing Harper to support the conclusion that “the lack of a rational relationship between wealth and one’s ability to intelligently participate
in the electoral process is well-established”).
115

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

43

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

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.”116
The Twenty-fourth Amendment is rarely
applied outside of “classic” poll tax cases.
The cases that are relevant here are two
felony disenfranchisement cases, Howard v. Gilmore and Johnson v. Bush.117
Howard is an unpublished Fourth Circuit
opinion that rejects a pro se plaintiff’s
challenge to Virginia’s felony disenfranchisement law. The court summarily disposes of plaintiff’s challenge to the $10
fee necessary to restore his civil rights
(and hence his right to vote) by stating,
“[I]t is not his right to vote upon which
payment of a fee is being conditioned;
rather, it is the restoration‑of his civil
rights upon which the payment of a fee
is being conditioned. Consequently,
[plaintiff] states no claim under the
Twenty-fourth Amendment.”118
The court’s reasoning in Howard is unclear. The label that the state chooses
to describe the rights restoration process seems likely to determine whether
a claim can be made under the Twentyfourth Amendment. Possibly the court
believed that the plaintiff had no constitutional right to vote under Richardson
unless and until his civil rights were restored, so the fee was not objectionable
under the Twenty-fourth Amendment.119
Howard could then be read as extending Richardson’s holding from the Fourteenth Amendment to the Twenty-fourth

Amendment—a reading that clearly presents obstacles for a poll-tax challenge to
legal financial obligation requirements.
But Howard, being brief and opaque and
an unpublished opinion, should not be
persuasive on this point.
In Johnson v. Bush plaintiffs claimed that
the Florida Clemency Board’s requirement that applicants pay all victim restitution to be eligible for restoration of
rights constituted a poll tax. The district
court relied on Howard in rejecting this
claim on two grounds. First, the court
found that the restitution requirement
“does not unduly burden” the right to
vote because “[t]he State is not constitutionally obligated to return [the] right
[to vote] to [plaintiffs] on completion
of their sentence.”120 Because the right
to vote is “stripped” from persons with
convictions, they no longer have any such
right, and consequently that right cannot be abridged by a poll tax.121 Second,
the state had provided a waiver process,
so that failure to pay did not necessarily preclude restoration.122 The court
then seemed to conduct a rational-basis
analysis, finding that “victim restitution
is a crucial part of the debt the convicted
felon owes to both the victim and society” and that “[p]ayment of that debt is
directly related to the question of the
applicant’s rehabilitation and readiness
to return to the electorate.”123
The Johnson district court’s reasoning is
slightly more elaborate than the Howard
decision, but it is no more convincing.
Moreover, while the Eleventh Circuit,

Id. at 670.

116

Howard v. Gilmore, No. 99-2285, 2000 U.S. App. LEXIS 2680 (4th Cir. Feb. 23, 2000); Johnson v. Bush, 214 F. Supp.
2d 1333 (S.D. Fla. 2002). Claims under the Twenty-fourth Amendment were also asserted in recent challenges to voter
identification requirements. See Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 826–27 (S.D. Ind. 2006) (holding that, because the identification card itself was free, the requirement was not a poll tax), aff’d sub nom. Crawford v.
Marion County Elections Board, 472 F.3d 949 (7th Cir. 2007); but see Common Cause/Georgia v. Billups, 406 F. Supp. 2d
1326, 1370 (N.D. Ga. 2005) (finding the voter ID requirement “constitutes a poll tax” in violation of the Twenty-fourth
Amendment).
117

Howard, 2000 U.S. App. LEXIS 2680, at * 4–*5.

118

This would be consistent with the Fourth Circuit’s earlier en banc holding in Allen v. Ellisor, 664 F.2d 391, 395 (1981)
(Clearinghouse No. 30,954), that “[t]he decision in Richardson is generally recognized as having closed the door on the
equal protection argument in a challenge to state statutory voting disqualifications for conviction of crime.”
119

Johnson, 214 F. Supp. 2d at 1343.

120

Id.

121

Id.

122

Id.

123

44

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls

finding that applicants could have their
rights restored even if they still owed restitution through the waiver process, affirmed on the second, narrower holding
of the district court in Johnson, it rejected
the part of the district court’s opinion
that echoed Howard’s simplistic semantics. The Eleventh Circuit explained,
“As one of the civil rights to be restored,
clearly the right to vote depends on any
conditions that apply to the restoration
of civil rights in general.”124 Relying on
the availability of a waiver in affirming
the district court, the en banc court noted
that, “[i]n doing so, we say nothing about
whether conditioning an application for
clemency on paying restitution would be
an invalid poll tax.”125
In the end the Twenty-fourth Amendment theory remains untested. There
is little precedential history on which
to build, but that also means that the slate
is nearly clean. In framing the argument,
the advocate must persuade the court to
look beyond simple labels and perform
an in-depth functional analysis, which
examines the purpose and history of the
Amendment, along with the practical reality of long-term disenfranchisement
caused by economic sanctions.

The United States is a country that prides
itself on its democratic ideals. However,
lurking beneath these worthy principles
are stark inequities and entrenched discrimination rooted in history, exposing
the tenuousness and infirmity of these
basic democratic standards. Across the
country—from Arizona to Delaware,
from Washington to Florida—voters are
being shut out of our democracy because
they are poor. Denying the vote to fellow
citizens who are living, working, paying
taxes, and raising families in our communities is undemocratic. Denying the
vote to fellow citizens who cannot afford
to pay is probably unconstitutional. This
modern-day poll tax undermines not
only our democratic ideals but also years
of jurisprudence aimed at defending the
right to vote.
Authors’ Acknowledgments

We wish to thank Deborah Goldberg, Kirsten
Levingston, Renée Paradis, Larry Schwartztol, and Margaret Chen of the Brennan Center for Justice, and Julissa Reynoso of Simpson Thacher & Bartlett, for their invaluable
assistance on this article.

■  ■  ■

Johnson v. Bush, 353 F.3d 1287, 1303 n.28 (11th Cir. 2003) (citation omitted).

124

Johnson v. Bush, 405 F.3d 1214, 1216 n.1 (11th Cir. 2005) (en banc).

125

Clearinghouse REVIEW Journal of Poverty Law and Policy

n

May–June 2007

45

Subscribe to Clearinghouse Review and www.povertylaw.org
Annual subscription price covers
❏	 six issues (hard copy) of Clearinghouse Review and
❏	 www.povertylaw.org access to the Poverty Law Library containing Clearinghouse Review issues back to 1990, case
reports and case documents, and other materials

Annual prices (effective January 1, 2006):
❏	 $250—Nonprofit entities (including small foundations and law school clinics)
❏	 $400—Individual private subscriber
❏	 $500—Law school libraries, law firm libraries, other law libraries, and foundations (price covers a site license)

Subscription Order Form
Name
Fill in applicable institution below

CUT HERE

Nonprofit entity
Library or foundation*
Street address								

Floor, suite, or unit

City							

Zip

State		

E-mail
Telephone						

Fax

*For Internet Provider–based access, give your IP address range

Order
Number of subscriptions ordered
Total cost (see prices above)

$

Payment
❏	 My payment is enclosed.
Make your check payable to Sargent Shriver National Center on Poverty Law.
❏	 Charge my credit card: Visa or Mastercard.
	

Card No.								

	

Signature
We will mail you a receipt.

❏	 Bill me.

Please mail or fax this form to:
Sargent Shriver National Center on Poverty Law
50 E. Washington St., Suite 500
Chicago, IL 60602
Fax 312.263.3846

Expiration Date