Harper v. Virginia Board of Elections

PETITIONER:Harper
RESPONDENT:Virginia Board of Elections
LOCATION:Virginia General Assembly

DOCKET NO.: 48
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 383 US 663 (1966)
ARGUED: Jan 25, 1966 / Jan 26, 1966
DECIDED: Mar 24, 1966

Facts of the case

Annie E. Harper, a resident of Virginia, filed suit alleging that the state’s poll tax was unconstitutional. After a three-judge district court dismissed the complaint, the case went to the Supreme Court. This case was decided together with Butts v. Harrison.

Question

Did the Virginia poll tax violate the Equal Protection Clause of the Fourteenth Amendment?

Earl Warren:

Number 48, Annie E. Harper et al., Appellants, versus Virginia State Board of Elections et al., and Number 655, Evelyn Butts, Appellant, versus Albertis Harrison, Governor, et al.

Mr. Brown.

Allison W. Brown, Jr.:

May it please the Court.

These cases are on appeal from a statutory three-judge District Court which had dismissed the complaint of the plaintiffs who sought a declaratory judgment and an injunction against the enforcement and administration of the Virginia poll tax laws which require a payment of certain sums of money as a prerequisite to voting in state and local elections.

The plaintiffs based their suit on a Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The State in its motion to dismiss and answer challen — defended the constitutionality of the — of the poll tax laws to challenge the con — the standing of the plaintiffs to bring the suit on the ground that by their own admissions, they constituted a class which was ineligible to both under Virginia law.

The plaintiffs had alleged that though they were qualified in every respect to both under the Virginia statutes, they lack the financial means to pay the poll tax.

And if by their poverty they were therefore deprived the right to vote.

The State’s argument was that the plaintiffs fell within the class of persons known as paupers who are disqualified under Virginia law from voting as are other classes such as idiots, insane persons, persons convicted of certain crimes.

The District Court dismissed the case after hearing it on the plaintiff’s motion for summary judgment and on the State’s motion for a motion to dismiss.

The District Court decided the case on the basis of this Court’s decision in 1937 in Breedlove v. Suttles which had sustained the constitutionality of a Georgia poll tax requirement substantially similar to the one in — now existing in Virginia.

The Court also dismissed the plaintiff’s challenge to the pauper disqualification on the ground that there was no showing that it had been applied to deprive the plaintiffs of the right to vote.

And that they therefore were without standing to challenge this provision of the law.

(Inaudible)

Allison W. Brown, Jr.:

This might mean that.

It’s unclear, sir.

Presumably if you can’t pay the poll tax, you’re a pauper.

If you can pay the poll tax, you wouldn’t be a pauper.

The pauper provision has never been tested and never been —

Never been applied?

Allison W. Brown, Jr.:

It — well it has never been applied because there — the poll tax has served as an effective deterrent or bar to voting by purpose — persons falling in that class of Virginia.

The poll tax in the Virginia is a $1.50 payable three — six months prior to the election.

A person who has lived in the State for more than three years must pay — for three years or more must pay the tax cumulatively to — and if he has never paid it, he must — or has paid it made delinquents payments, he must pay penalty and interest charges which are added to the poll tax.

So that as in the case of these four appellants in this proceeding, in order to register and qualify themselves to vote and to cast their first ballot in Virginia, none of them have ever voted, they would have to pay a maximum of individually of $5.01.

Two of the plaintiffs are husband and wife and from their household budget it would require a payment of $10.02 in order for them to vote.

The plaintiff’s first argument is that this disqualificaton or that that — that is that this financial requirement serves as a bar to voting for paupers, indigents, poor people, persons who are of the class which — from which plaintiffs — which plaintiffs here represent.

This Court in the case decided last term, Harman v. Forssenius commented on the well-known fact that the — the truck, the disenfranchisement of the poor is occasioned by the failure to pay the tax.

The tax not only disenfranchised the persons without any means but persons who are below the level of economic income where there the — the question of paying a tax represents a choice between the necessities of life, food, clothing, shelter, medicine, and so forth.

The census figures for 1960 showed that 28% of all Virginia families had incomes in 1959 of below $3,000 a year.

This was the — this is the level that is currently recognized in governmental circles as representing the — the boundary of poverty, the upper boundary of poverty, $3,000.

Allison W. Brown, Jr.:

It’s the figure which has been accepted by the Council of Economic, the President’s Council of Economic Advisers, the Office of Economic Opportunity and so forth.

Potter Stewart:

For a family, isn’t it?

Allison W. Brown, Jr.:

That’s for a family income, yes sir.

The —

Tom C. Clark:

Did you say 28?

Allison W. Brown, Jr.:

28% of all Virginia families, yes sir.

It’s — in among white families, the — it’s 22% who have incomes below $3,000 and among nonwhite families, it’s 54% who have incomes below $3,000.

So it’s plain that the — there is a — invidious discrimination against poor people here in the same sense that this Court has previously spoken out in the cases of Griffin v. Illinois and Douglas against California.

Those cases were ones in which the Court held in criminal proceedings at least that the Court could not be discriminated against.

And as the Court said in the Douglas case — in the Griffin case, excuse me, “A state can no more discriminate on account of poverty than on account of religion, race, or color.”

The Court also made clear in subsequent cases, Reynolds against Sims, Gray against Sanders, for example, that this same principle or the same principle of economic discrimination is equally applicable in cases involving voting rights; that similarly persons may not be discriminated against on the basis of their class including economic class.

The discriminatory scheme of the Virginia laws also — Virginia poll tax laws, also results in arbitrary and unreasonable classifications of other classes of persons who are potential voters in the State.

The three-year cumulative requirement or — and the requirement that persons pay six months prior to the election, all result in disqualifications of voters.

In addition, there are a number of provisions which permit the exemptions from paying the tax.

And there are several classes of persons who may vote in the State without paying any tax.

This results in equal — the denial of equal protection laws to those persons who must pay the tax vis-à-vis those who do not need to.

Earl Warren:

What are the exemptions, Mr. Brown?

Allison W. Brown, Jr.:

The exemptions, sir, are members of the armed forces, persons pensioned by the State for military service, civil war veterans, their wives and widows, persons moving into the state who are honorably discharged from the armed forces after January 1 of the year preceding the election.

Persons reaching 21 after January 1 of the year of the election are also exempted.

That if these are people who may vote in the year in which a — election is held but who do not have to show prior payment of the poll tax.

Tom C. Clark:

What must did you say they had to pay?

Allison W. Brown, Jr.:

The payment must be made by — six months prior to the election, sir.

The —

Tom C. Clark:

Prior then before January, isn’t it?

Allison W. Brown, Jr.:

The normal date for billing and payment of taxes for the majority of people who pay it is by December 5th of the year preceding the election.

Now, the payment can also be made at anytime up to Jan — up to six months prior to the time the election will be held.

Now, if the election is one which is held in the early part of the year, for example, the — they must have showed payment six months, any six months prior to the election.

Tom C. Clark:

That’d be impossible for a soldier that was discharged in (Inaudible)

Allison W. Brown, Jr.:

Well, the State permits honorably discharged servicemen to vote without having paid but dishonorably discharged serviceman can still vote but they have to pay it.

Tom C. Clark:

That’s one of the exemptions though.

Allison W. Brown, Jr.:

Yes sir.

Earl Warren:

All veterans are exempted.

Allison W. Brown, Jr.:

No sir, not all exempt — not all veterans, just those who are honorably discharged with — since January 1 of the year preceding the election.

Earl Warren:

Well then, generally, it’s veterans exemption, isn’t it?

Allison W. Brown, Jr.:

Just recently discharged, just within the year preceding the election.

Earl Warren:

Oh, I see that.

Just for that one year?

Allison W. Brown, Jr.:

Just for that one year, yes.

Potter Stewart:

Presumably is that I suppose to take care of the fact that they would not have had time to get back and pay the tax, is that it?

Allison W. Brown, Jr.:

Well I’m not sure what the reason is.

Tom C. Clark:

They exempt the first year.

Allison W. Brown, Jr.:

They are —

Tom C. Clark:

(Inaudible) to vote.

Allison W. Brown, Jr.:

You’re exempt if you have paid, if you have become of age since January 1 of the year of the election, yes.

Tom C. Clark:

You don’t pay at first.

Allison W. Brown, Jr.:

That’s correct.

Tom C. Clark:

That applies to everybody.

Allison W. Brown, Jr.:

Yes, yes sir.

In Campbell against Goode, a case in which the Supreme Court of Appeals of Virginia had construed this law, the Court admitted that the purpose of the poll tax was not to limit the — not to raise revenue but rather to limit the right of suffrage to those who took sufficient interest in the affairs of the State to qualify themselves to vote.

And the States read to this Court, it is also a numerous, in several instances, repeated this same kind of rationale as a basis for the poll tax.

It is stated for example on pages 43 and 46 of the brief that the simplest and most equal nondiscriminatory that the tax is, the simplest, most equal nondiscriminatory and objective test of minimum intelligence and responsibility that could be reva — be devised.

In another point on page 38 of its brief, it refers to the tax as an elementary and objective intelligence test.

It all talks — also talks about it being a simple and objective test of minimum capacity for ordering one’s affairs.

Now, we submit that this type of rationale simply does not bear scrutiny or it is plain that if these are — are the very nature of a tax, poor people are going to be discriminated against and is going to be disqualified for voting and this — their failure to pay the tax is not in anyway established by — it does not in any way establish their lack of responsibility as citizens due to their lack of intelligence.

The exemptions also suggest that the tax in no way is a test of intelligence or responsibility.

I also call the Court’s attention to the fact that if there is a provision of the tax — of the state code, Section 24-129, which has not been referred to in any of the briefs but which permits a member of a — a person to have his tax paid by a member of his household or his immediate family.

Thus, as it’s true in many families, the person who pays the bills pays the tax for the other members of the family, the spouse for example.

Therefore, the State has no way of knowing, having any knowledge about this minimum intelligence or responsibility of the person who has a tax paid for him.

Earl Warren:

No one else can pay — no one else can pay the tax for him, is that right?

Allison W. Brown, Jr.:

Unless —

Earl Warren:

Other than a member of his family.

Allison W. Brown, Jr.:

Member of his family or household because that has to be blood relative.

Now the State argues that the Fourteenth Amendment does not apply to voting.

This is one of its principal defense — defenses to voting rights.

It argues this on the basis of construction of the language of Article 2, Section 1 of the Constitution which appears to or which does states — the States may establish the qualifications for voting.

However, we state, to serve one that the poll tax is not a qualification in the — in the literal sense of the word and that therefore it should not be barred that is a decision holding it unconstitutional is not barred by this language.

Secondly, we submit that this Court has really dispose in large measure of the State’s argument on this Court because in the cases decided last term Carrington against Rash involving the Texas serviceman, Louisiana versus the United States and in — of the earlier case of Lassiter versus Northampton Board of Elections, this Court has made clear that the Fourteenth Amendment, at the very least, does apply to voting rights and that these voting requirements will be subject — subjected to examination in light of the requirements of the Fourteenth Amendment.

Not only, therefore, does the Equal Protection Clause established a basis for this Court’s decision but we further believe that voting here must also be looked at as being one that had — we believe that the Due Process Clause demands the same result that is that the poll tax is unconstitutional as a prerequisite to voting.

For example, as this Court has made clear the very fundamental and basic and essential nature of the right to vote, the right to vote, therefore, may not be — may not be taken away, may not be impaired by requirements which have no relevancy to the maintenance of — to the State’s interest rather in having an informed electorate and having efficient and well run electoral process.

We believe that the First Amendment provides the basis for the Court to examine the nature of voting.

We believe that voting is similar, for example, to other rights that are protected by the First Amendment.

It’s a — it’s a form of —

(Voice Overlap) guarantee of the right to vote?

Allison W. Brown, Jr.:

We believe that it is of the nature of rights that are presently protected by the First Amendment.

Where do you (Inaudible)

Allison W. Brown, Jr.:

We beli — well it’s not as spelled out in the First Amendment.

We think that it is or it is of the same nature as other rights which have been granted protection under the First Amendment, rights set forth in the decisions of the Court of recent years which fill out and expand on the nature of the First Amendment or give it meaning if we will, significantly.

The right to vote is a form of political expression which — and the other rights by the — as protected by the First Amendment have little meaning, for example, if the person is deprived of the right to vote.

Potter Stewart:

What age does this right attached?

Allison W. Brown, Jr.:

Well, now the State argues that the right to vote may not be compared with other rights protected by the First Amendment because it is subject to certain limitations and restrictions.

But this is true of other rights protected by the First Amendment.

Now, the State establishes 21 as the, in many states, 18 and others as the basis — as the minimum age for voting.

But this is no different than saying that other rights may not be — certain minimal conditions have to be met in as a prerequisite for asserting and exercising other rights.

Earl Warren:

We’ll recess now.

Allison W. Brown, Jr.:

— the Court.

As we pointed out in our brief, Virginia is not the only state with a poll tax.

There are three — there are four other states in the United States that have it.

Three of these are in the south and one of them is the State of Vermont.

Vermont — the Vermont poll tax law has a provision which suggests that the Court’s ruling in here in the basis on which the Board, the Court makes its ruling may have ramifications.

The poll tax in Vermont, for example, ranges from a minimum of $3.50 to a maximum of $18 as a prerequisite to vote.

Allison W. Brown, Jr.:

In addition, there is a $5 old-age assistance tax which is tucked on to that which must also be paid as a prerequisite to vote.

Now, this is not in all elections but only in town meetings, town elections, and school district elections in that state.

The Vermont tax unlike that in Virginia has an exemption for persons “actually poor”, also for persons receiving old-age assistance.

We, therefore, have suggested that the basis for the Court’s ruling will have significance here and that the Equal Protection Clause alone for example if the — if the basis for the Court’s ruling is at the Equal Protection Clause applies because in Virginia because it deprives paupers of the right to vote, the poor persons have the right to vote.

This may not reach the type of tax that exists in Vermont or the kind of tax which could be enacted in Virginia or some other state that is if they were to incorporate an exemption for paupers.

Now, we believe that even a pauper exemption if were established is a — one had to take it as a prerequisite to voting would be an unconstitutional irrational burden on the exercise of the franchise.

But we have suggested in our brief that any — any tax even if there is a pauper extension — exemption is unconstitutional because it’s irrelevant.

And as in the case of Murdock against Pennsylvania, for example, it constitutes a burden or a restraint, a prior restraint, a suppression on the exercise of a fundamental right.

Hugo L. Black:

What did you do with the Breedlove?

Allison W. Brown, Jr.:

I beg your pardon, sir.

Hugo L. Black:

What did you do in the Breedlove?

Allison W. Brown, Jr.:

We believe that Breedlove is — has really lost all meaning and significance in view of the subsequent decisions of this Court applying the Fourteenth Amendment to voting rights and in view of the rights of paupers which the Court has — or the poor persons which the Court has for it shown that it must be protected in the Douglas and Griffin cases.

We believe, therefore, that Breedlove should be overruled.

We just don’t see how it can be held, it can be — how it can be looked upon as consistent with the current state of the law as it’s been explicated by this Court.

Hugo L. Black:

You don’t think they have to overrule it?

Allison W. Brown, Jr.:

Well, we — I think it should be overruled.

I think — I don’t see how the Court can find the basis for distinguishing it frankly because there’s no question with what the rules or rather the issues which are presently before the Court were presently — or presented to the Court in Breedlove.

And the reading of that decision just is impossible to reconcile it with current thinking.

Finally, I would like to touch —

William O. Douglas:

Follow back then the law of intention, Virginia says they were Circuit cases?

Allison W. Brown, Jr.:

Since what sir?

William O. Douglas:

That’s the circuit cases of Sanders against State?

Allison W. Brown, Jr.:

Not to my knowledge.

There may be exemption.

There’s something of that sort have been changed but not substantially.

Finally, I would like to touch momentarily on the final issue — the second issue rather which we raised in this — which has become concurrent in this case and that is the one involving the so-called pauper disqualification.

This — the District Court refused to hold this provision unconstitutional on the ground that it had been not shown in the proceeding that it had been applied to prevent these appellants or any other persons from voting.

Our answer to that is, one, there was never any need to apply it because the poll tax served as a — as a bar to voting by persons who are poor or paupers.

Secondly, we believe this provision should be held unconstitutional because it is a self-enforcing provision.

It is a prior restraint on the exercise that it would be franchise.

Allison W. Brown, Jr.:

The State — the — any person who considers himself of low economic means is and who is aware of his disqualification is simply not going to show up at the polls.

So it’s a prior restraint which should be invalidated.

And as long as it stands on the books, it is a — something that — that is intolerable.

Earl Warren:

Has there been any definition with the word ‘pauper’ for this Act?

Allison W. Brown, Jr.:

Only to the extent the Attorney General in this proceeding has asserted that the plaintiffs fall or the appellants here fall within the class but there has not been any — any kind of other — other explication of what it means.

Earl Warren:

And these are anything in the economic status of these people other than they are impoverished?

Allison W. Brown, Jr.:

No.

Earl Warren:

There’s nothing like that — and they have mean in the county hospital that they serve, anything of that kind, it’s just that they are —

Allison W. Brown, Jr.:

They’re just people who —

Earl Warren:

They’re just people who have very little means.

Allison W. Brown, Jr.:

That’s correct, sir.

And they have brought this case up.

They’ve alleged that there are two provisions, the state law, which barred them from voting and it would be hardship on them to only have this case ruled on in a piecemeal basis.

For the Court to hold the poll tax perhaps is unconstitutional but to leave this other bar standing.

Abe Fortas:

Did you say that (Voice Overlap).

Byron R. White:

(Voice Overlap) — a fortiori than any — any property qualifications for voting and say existent in any of the states would be — would fall under your argument, I suppose, isn’t it?

Allison W. Brown, Jr.:

Yes, I believe so.

I believe that they are not a relevant qualification.

They bear no relevance to the — to the requirements of a sound electoral machinery and that they — under the Due Process Clause, they would be an unconstitutional burden.

Byron R. White:

What about this local elections for bonds, approval of bonds and things like that?

Allison W. Brown, Jr.:

That I think might raise another question whether — where property is going to be — have an encumbrance put on it, for example, as might be the case if — if obligations are incurred, financial obligations.

Abe Fortas:

Did you say Mr. Brown that the Attorney General of Virginia has conceded that the appellants here are paupers?

Allison W. Brown, Jr.:

Yes sir, he has asserted.

He asserted that in his motion to dismiss and in his answer and he asserts it, has continued to assert it at that proceeding.

Abe Fortas:

Thank you.

Earl Warren:

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice and may it please the Court.

The United States appears in this case because of the great importance that our government attaches to the whole problem and while the poll tax is today in full force only in four states, Virginia Alabama, Mississippi and Texas; and secondly, by virtue of the Twenty-Fourth Amendment applies only to state elections.

It remains a serious clog in the exercise of the franchise.

What is more, the problem of the poll tax is a real value to voting has become more not less acute.

Thurgood Marshall:

And the reason is that with the removal of most of the restrictions by the Voting Rights Act of 1965, it’s pretty clear that the poll tax is going to be the one weapon left remaining and then it will come into its full position, I assert.

And there’s another aspect to the urgency of the question.

And I have some hesitation and to mention it in this case which across the laws only in Virginia.

But after all the ruling here may well govern elsewhere and the Court should know the realities of the situation, the fact is that many thousands of persons in Alabama and Mississippi registered for the first time under the 1965 Act, whether through the regular state registrars or federal examiners, most of them simply did not pay their poll taxes.

And these states unlike Virginia, payment of poll tax is not a prerequisite to registration but it’s only a prerequisite to voting.

And of course if the tax, the poll tax is the constitutional, they will not be entitled to vote in the forthcoming general primaries in May in Alabama and June in Mississippi.

Hugo L. Black:

What is the amount of the poll tax now in Alabama?

Thurgood Marshall:

In Alabama?

A dollar and a half.

William O. Douglas:

What are the four states again, Mr. Solicitor General?

Thurgood Marshall:

Virginia, Alabama, Texas, and Mississippi.

That’s where they had before but the marked one is a very limited one and I don’t think we need too much of it in this (Voice Overlap).

William O. Douglas:

When I live in Connecticut, there was one I remember, do they still have them?

Thurgood Marshall:

Not that I know of.

The information I have is that it’s only four that have the full ones.

Hugo L. Black:

Do you think it’s an accumulated poll tax that buys voting or it’s just one statement, one year statement analysis.

Thurgood Marshall:

Well, Alabama is a dollar and a half for two year accumulation.

Mississippi is $2, two years, and Texas is $1 for one year.

Hugo L. Black:

Maximum is $4.

Thurgood Marshall:

Maximum is what I understand it.

Well, the other thing I would like to mention is that our position we wish to take in this case is broad as possibly could be considered whereas the petitioner in these cases are poor people.

The argument, as we see it, would apply equally if the wealthiest person in Virginia had refused to pay his poll taxes.

Our basic reason is that you cannot put a tax on the right to vote in any form or fashion.

While considering the argument in this case I happened to be in New York, the strike, and I think my analogy — my knowledge is correct.

While a city can without question charge for writing on the municipal subway and put up a turnstile where you have to put in the 15 cent token, I don’t believe anybody will try to support a plan where you had to put in a dime in a turnstile when you went into vote.

It just is completely opposed to any form of democratic government I can think of and this is even worst.

Because in Virginia, it would be bad enough if you had to pay the dollar and a half and buy a ticket before you went into vote.

But this you have to pay it six months in advance.

And whereas some people normally get it on their tax bills, there are others that don’t have tax bills.

And they don’t know about it.

Thurgood Marshall:

And this I think the Court is aware of the fact that there’s not too much interest in the election six months in advance.

So I say my turnstile example is a position that even Virginia can’t rely upon.

The — your question immediately comes up as to how does that arise to a constitutional question was very simple.

When our Constitution was drafted, it was drafted with the full realization that we want to have a government of the people, the republican form of government to be guaranteed and the basic rule set down for qualification of voters.

But I’m sure the Constitution did not consider the possibility of a state not holding an election.

They assumed that the States would hold elections.

Indeed, they assumed that they would hold it unfairly.

And of course it was not until the Thirteenth, Fourteenth, and Fifteenth Amendments and it was found necessary to lay down certain guiding rules.

I don’t believe that this general principle that the States have is unqualified right to pick qualifications and how anyone can put a tax, the payment of a head tax as a qualification for voting is beyond me.

But why do you impose voters to pay?

Thurgood Marshall:

Because it has a connection with your ability to properly discharge your duty as an elector.

For example, when you go to the far end, an idiot, nobody pose as idiots being kept out and if a literate test is fairly administered, and certainly under the Lassiter case, I don’t think there’s had been in the question that a literacy test is an actual test of qualifications.

But the fact that a man did not pay a dollar and a half head tax which is the smallest tax at least I know of in Virginia unless you get cigarette tax or something like that, it’s not by stretch of imagination connected with literacy.

Suppose the statute contends it.

Thurgood Marshall:

It still wouldn’t be a test.

It wouldn’t be a test for disqualifications.

Tom C. Clark:

Suppose the tax went to (Inaudible) elections.

Thurgood Marshall:

I would say that that would not be permissible because the — what about the man who can’t pay it.

The man who can’t pay it would be barred from voting and even if the person who couldn’t pay was excluded, I would say it would be improper because there’s nothing to do with qualifications.

Tom C. Clark:

Where does this fund goes?

Thurgood Marshall:

This fund goes — a part of it goes for education and the rest of it goes to general funds and they admit they don’t raise money with it.

I mean in — in this day and age and the — the main reason, Mr. Justice Clark is I’m sure it’s not a tax revenue measured.

I’m not certain.

I haven’t checked but I don’t know of a single tax in the world that stayed the same rate for 75 years, not on this day and age, I don’t.

I don’t know whether you take judicial notice of it but I could.

I think it’s quite obvious that it’s merely a tax on the exercise of a right to vote.

Potter Stewart:

Well, that’s — maybe you and maybe I think it’s not wise, but certainly, you can conceive I’m sure of a point of view that the State might have that would motivate them in wanting to have voters vote only voters vote who voted responsibly.

Thurgood Marshall:

Well sir, I don’t know.

Potter Stewart:

And historically, there’s a very great deal of — there are many qualifications involving ownership of property and that too reflects that kind of an attitude on the part of the State.

They wanted people with a — with a stake — with a stake in the Government.

Thurgood Marshall:

Well, I’m not too sure that the reason for the property test applied today, that the property test came about before we had public education, that’s what started it.

And they assume that a man who didn’t own property couldn’t afford to send his child to a private school.

That was the theory in the old property case and that is —

Potter Stewart:

Now, that is perhaps a theory but I suggest that there is at least one other theory just to rationally support it.

And this reflects that same kind of a — of a theory, is it not?

Thurgood Marshall:

Well, I would submit it does not because under this rule unless the man was convicted for nonpayment of taxes, a resident of Virginia could refuse to pay every single other tax to the tune of say $10,000 and he could vote providing he paid the dollar and a half one on time.

So it’s — I don’t see that there really could be any connection between the two.

Not for the question on the point of qualifications.

It’s just not there, I don’t see it.

And the defense — the only defense I see is the theory that the State can set up any qualification.

Well, this is not a qualification.

Yes.

Mr. Justice —

Byron R. White:

(Inaudible)

Thurgood Marshall:

1870, yes sir.

Yes sir.

1870, I would draw mine at the time we began to get into the field of public education.

Byron R. White:

And in 1870, the case came up, Breedlove (Inaudible)

Thurgood Marshall:

Breedlove might have been.

The Breedlove case, I think we have to look at it.

First, I bet it took the opinion in itself starts off where there’s nothing wrong with the head tax or a poll tax, and I agree, there’s nothing wrong with it.

And then it goes straight from that to the point that there’s nothing wrong with making that a qualification for voting.

But you read the briefs.

The point was they claim that it was a violation of the Nineteenth Amendment, this discrimination on sex.

And there was a point like that involved.

None of these points were in Breedlove.

But the opinion does, I submit, stand in our way.

Byron R. White:

Well, would you — would you require the States in that sooner once the State (Inaudible) those over 21 would take the head tax or the poll tax or a property qualification had some connection with voting just like it might have had in the middle of the 19th Century.

Thurgood Marshall:

In the middle of the — well I can only go up to the — through the 19th Century.

I could see basis for property qualifications but I don’t see it now in the — anytime in the present.

William O. Douglas:

In any state.

Thurgood Marshall:

In any state.

I don’t think it makes any difference what state it is.

And I don’t think it makes any difference what the race of the person is, for my argument.

I’m not saying the other argument is not valid.

But in my argument, it’s improper to qualify the right to vote.

Byron R. White:

To assume that — to assume because you don’t have money, you weren’t qualified to vote.

Thurgood Marshall:

Well that’s —

Byron R. White:

That’s the rational —

Thurgood Marshall:

That’s the ra —

Byron R. White:

As of today.

As of 19 — 1850, it might have been different.

The difference, that difference might have been the irrational.

Thurgood Marshall:

It might have been that a poor person would not have the necessary information.

But today with the mass media of communication, the poor person doesn’t even have to have a television set, he goes and look at somebody else’s and hear of all of the discussion of the pending issues of an election.

Byron R. White:

Well, is this the due process argument, was that it or —

Thurgood Marshall:

Mine is — is equal protection and due process and I — the two I think spill over because the recent decisions of this Court seem to make it clear that the right to vote without an unreasonable classification denying you the right or diluting your right or gerrymandering you a right, or rights that are similar to and on the same level of the First Amendment rights.

I —

Tom C. Clark:

They do not deal with qualifications.

Thurgood Marshall:

Sir?

Tom C. Clark:

Those cases do not deal with qualifications, do they?

Thurgood Marshall:

Well, the — the whole point is I don’t see how qualifications are any more important than diluting the vote.

The cases do involve dilution of the vote.

Tom C. Clark:

Where is the right to vote spring from?

Thurgood Marshall:

From the democracy when it was set up, when our government was set up.

Tom C. Clark:

Federal or state government.

Thurgood Marshall:

Federal Government was set up.

That’s my position.

Tom C. Clark:

(Voice Overlap) who would like to vote in the federal elections.

Thurgood Marshall:

Yes sir.

Tom C. Clark:

That would be contrary to Breedlove and in other cases, wouldn’t it?

Thurgood Marshall:

It’d be certainly contrary to Breedlove, it wouldn’t be contrary to the other ones.

Tom C. Clark:

Well, Wilkins said at the same time, I think, that a federal case (Inaudible) certainties out of Virginia.

Thurgood Marshall:

Wilkins was, I think, yes sir.

Tom C. Clark:

There’s another one under the name of Thomas or something like that.

Thurgood Marshall:

Well the — take the gerrymandering case and cases of that type.

That was dilution of the vote.

This is — this is dilution plus —

Byron R. White:

But Mr. Solicitor General, isn’t it Rash on qualifications cases, isn’t it?

Thurgood Marshall:

Oh, Rash is on the qualification case but that was limited to more or less to equal protection and it was ruled that this was an unfair classification because he didn’t have a chance, the soldier did demonstrate that he was a resident.

But it was equal protection, clearly equal protection.

And that was qualification definitely.

Tom C. Clark:

In fact, in those cases, I thought was in fact the pure intention of the ballot box.

Thurgood Marshall:

Classic was stopped —

Tom C. Clark:

It didn’t have any qualification problems, did it?

Those were cases where they either count the box but didn’t count the votes that were deposited in the box.

Thurgood Marshall:

And that was the — dilution of it.

The rule was that you were diluting his vote.

Tom C. Clark:

Alright, in those cases are within the facts and qualifications also.

Thurgood Marshall:

That was based on race, clearly on race alright up through Terry and Adams.

They were all clearly based on race.

Tom C. Clark:

So that wouldn’t have anything to do with that.

Thurgood Marshall:

Not with the argument, I’m broad as it is.

They would apply to the argument that this is a direct discrimination against Negroes which is made in the case that follows but for this broad argument I’m making which I submit is in this day and time I think is the one that we should have to get the thing settled once and for all.

Tom C. Clark:

Just like you have to think — you have to fix the position that we have to overrule Breedlove.

What you — since you state that the right to vote springs some of the federal questions without relating (Inaudible)

Thurgood Marshall:

Well, I think even if you follow Carrington and Rash and Gray and Sanders, Wesberry and Sanders, any of the recent cases you — I think Breedlove stands in the way of them.

But I — the only difficulty is that I hate to — well of course to urge a case to be —

Tom C. Clark:

I understand.

Thurgood Marshall:

Yes, but the position we take is that the points were just not raised in Breedlove.

Thurgood Marshall:

We’ve gone through the — every brief that’s filed in that case.

Tom C. Clark:

It was a broad language, isn’t it?

Thurgood Marshall:

Yes, but the broad language is one, that the poll tax is a valid tax.

That we don’t question.

And then the broad language is that ergo, it can be used because the right to vote comes from the State and not the Federal Government.

Hugo L. Black:

You’re arguing I suppose that de novo be use for that purpose and it could bar a man from defending a lawsuit.

Thurgood Marshall:

I don’t see it hardly any difference, sir.

Hugo L. Black:

May I ask you, have you looked to see of whether or not any state now in prescribing the qualifications for their voters require property ownership of any amount?

They do for jurors but I’m not sure about voting.

Thurgood Marshall:

I do know that there is some — I just happen to know that they have them for certain bond issues and things like that.

In some states they still exist.

But I frankly — I don’t know in general.

Hugo L. Black:

Would you think — would you think your argument would go far enough to strike down the qualifications of that kind, property ownership?

Thurgood Marshall:

Well, I know I can’t answer if I say it’s not in this case, which is the answer I’d like to make.

But I believe —

Hugo L. Black:

But it might be — it might be with reference to some of the states.

Thurgood Marshall:

I would say that the State could possibly show a relationship between property ownership and ability to exercise the right of an elector but I think it would have to be shown.

Hugo L. Black:

It could certainly show it if it — if it depended only on history.

Thurgood Marshall:

Yes sir.

Byron R. White:

You mean you would — you think you could draw some sensible distinction between the property qualifications of the poll tax as a condition of voting?

Thurgood Marshall:

I think —

Byron R. White:

Today and these days.

I mean based on your argument, I don’t — I don’t get that.

Thurgood Marshall:

I tried to, Mr. Justice White, I tried to leave the point open that perhaps the State could show it but I don’t believe there (Voice Overlap).

Byron R. White:

Is there a property qualification in Vermont?

Thurgood Marshall:

In those local elections, those town maybe but I don’t know about general Vermont, instead.

I can find it out later.

Byron R. White:

Well, that’s alright.

Thurgood Marshall:

I know they have it for the town meeting.

Hugo L. Black:

I might say I can’t follow you.

Hugo L. Black:

The State can’t have a poll tax and can have a property tax.

Thurgood Marshall:

No sir, I said there is a possibility that some state could show that there was a connection between ownership of property because I don’t like to cross bridges until I get there but I frankly don’t believe any state can show it.

Hugo L. Black:

Well, that’s what I meant to that not the prosecution does enough there.

Thurgood Marshall:

Well that’s what I was trying to do.

But I — I think that —

Byron R. White:

Well I think you could show that, Mr. Solicitor General, do you think if you show there were some connections between voting and property?

Couldn’t that — wouldn’t it have just as much a chance of showing a connection between poll tax and voting?

Thurgood Marshall:

Well, for example, I would be personally hard pushed to sustain a property qualification meaning real property because from age 21 until now, I’ve never owned any real property.

Now, I — I don’t know how good an elector I am but that’s what I see.

I just don’t believe it but my basic argument is that even if some other qualification can be shown to have relevancy, you can’t show tax as irrelevance.

There is no relevancy could be putting a tax on.

Byron R. White:

And where — and you say the argument would apply in a community of rich people where everyone is rich.

Thurgood Marshall:

Absolutely.

Byron R. White:

And so it’s really a due process argument but not an equal protection.

Thurgood Marshall:

I — yes sir, absolutely a due process argument.

I say that if the multimillionaire gets his tax bill and draws a line through the dollar and a half and says that’s it, he has the right to tender himself and he has the right to file his lawsuit.

William J. Brennan, Jr.:

More narrowly, isn’t it, a due process argument is within the First Amendment area?

Thurgood Marshall:

It is in the First Amendment area.

It is not freedom of speech or freedom of expression.

It’s in the same area because it’s very little use in picketing if you can’t vote.

Earl Warren:

General, how can you possibly distinguish between your turnstile case for a man who’s — who could pay a dollar before he can go through the turnstile and vote and a case where a man is required to bring a tax receipt before he goes through the turnstile.

Thurgood Marshall:

Well, I — there’s no difference at all except that he has to purchase his tax receipt six months at a time, it’s worst, if I get your question correctly.

Earl Warren:

No, I mean isn’t it six of one and a half a dozen of the other whether a fellow is required to — to pay a poll tax to vote or he’s required to pay a personal property tax before he can vote.

Thurgood Marshall:

Oh I see.

They would be very close.

I don’t see much difference in it.

Suppose a man didn’t pay any taxes and just refused to, perfectly able to but just refused to, I could very well conclude that he was not a responsible citizen or a responsible voter.

But he would be denied of his vote very simply.

He would be convicted with good due process for not paying his taxes.

That’s how he lose his vote.

Thurgood Marshall:

But you couldn’t — the State could not deny him his right to vote solely because he didn’t pay taxes.

Because it’s — there’s no way of getting around it.

And the turnstile thing is — is more aggravated.

Some of us — I don’t know about Mr. Justice Harlan but I know sometime you’re staying on the line waiting for those tokens up in New York, it’s quite a while.

But with his, it’s six months.

You’ve got to buy your token six months in advance.

And I perfectly — I don’t see any difference between the tax receipt, whatever kind of tax receipt it is.

Byron R. White:

You mean that you would also allocate these requirements for this fellow to vote or it must seem trouble giving a piece of paper as some certification to somebody who had paid all the taxes during (Inaudible)

Thurgood Marshall:

I don’t say he meet any qualification for his voting.

Maybe he couldn’t pay it.

Maybe he was unable to pay them.

Byron R. White:

Well, let’s just assume that property question also that — that if he didn’t have any money, why — he wouldn’t be taxed for it.

Well, let’s say that nevertheless paupers and everybody else would have to pay their taxes.

Thurgood Marshall:

That’s not a qualification for voting.

He might be the most intelligent man in the — in the world.I — the real problem we have is that —

Byron R. White:

How about the felons?

How about the fellow or the fellow who’s in jail because he didn’t pay his taxes?

Thurgood Marshall:

Well, if he’s in jail, that takes care of that when he gets out.

Byron R. White:

Well, he’s out now.

He’s —

Thurgood Marshall:

Well I — I’m not —

Byron R. White:

— that he’s a felony.

He’s got a record, criminal the records.

Thurgood Marshall:

I’m not sure about when those cases come up what position I’m going to take or whether you can deny him of his citizenship for the rest of his life.

William J. Brennan, Jr.:

Well, in any event, if he’s disqualified it’s because he’s a convicted felon not because he’s been convicted of not paying his taxes.

Thurgood Marshall:

Because he’s a convicted felon who has had full due process of law.

William J. Brennan, Jr.:

But that’s the reason for the disqualification.

Thurgood Marshall:

And — yes sir.

And in addition to that, if he’s a good man and a responsible citizen, he’s normally pardoned.

And his right to vote is restored but the failure to pay the poll tax for that year, there’s no pardon involved in that.

Thurgood Marshall:

The last point I would like to mention is that the State tried to justify this on the ground that it is a single and objective method of determining whether a prospective voter has enough interest and intelligence to be a fit participant in the electoral process.

And I think that point was taken cared of fully in the Harman case.

It’s difficult to see how any tax charged upon the exercise of the franchise can ever be any good.

And finally, nor can the poll tax be defended as a method of raising revenue for legitimate purposes of the State.

And I merely mentioned that because the State put so much stress to it and completely ignore its own decisions and I think the facts as were brought out in a question earlier, demonstrate fully that there’s no connection or whatsoever between the collection of the taxes and the voting itself.

And I would say that the United States Government pursuant to the 1965 Voting Act has appeared here as amicus with the strong urging of the Government that the poll tax involved in this case be declared unconstitutional once and for all so that the voters who got their rights for the first time in the 1965 Act can exercise in this year without any problem at all.

Thank you, sir.

You’re really here —

Thurgood Marshall:

Yes sir.

You’re really here to demand the process.

Thurgood Marshall:

No sir.

We are the — of course, when this was all going on, I was up and fully square but as I have read the record, it’s clear that the department was urgently considering it to be in this case either way.

And the interest of the government is not solely dependent on the act of Congress.

Thank you sir.

Tom C. Clark:

(Inaudible) practicing in these years and I remember (Inaudible)

Thurgood Marshall:

Yes sir.

Tom C. Clark:

(Inaudible)

Thurgood Marshall:

That’s right.

I didn’t come for that.

Earl Warren:

Mr. Segar.

Robert L. Segar:

Mr. Chief Justice, may it please the Court.

Mrs. Evelyn Butts, the plaintiff and appellant in this case brought this action to have the laws of Virginia which require the payment of a poll tax or capitation tax declared in violation of the First, Fourteenth, and Fifteenth Amendments of the United States Constitution.

This case was consolidated and tried in the Harper case below.

And after a hearing on the merits, the lower court dismissed the complaint largely on the authority of Breedlove versus Suttles.

The facts in this case are established by the testimony of three witnesses for appellant as well as several exhibits which were introduced into the record.

The testimony of the witnesses was summarized by appellant counsel and was entered into the record by stipulation, although neither the truth nor the relevancy of it was admitted by counsel for the defendants.

The first witness, Mrs. Butts, the plaintiff and appellant, testified that she lives with her husband.

She has no income of her own and his sole support is a veteran’s pension.

They make a home for their 15-year-old daughter and for her 90-year-old father.

She has voted in the past and she has paid the poll tax in the past although it was always an economic hardship upon her to do so.

Robert L. Segar:

She’s qualified to vote now except for payment of the tax which she has not recently accomplished because of the financial hardship.

She desires to vote.

The testimony of Mr. John Brooks, the plaintiff’s second witness, was that he’s a salaried employee of the NAACP; that he is personally engaged in voter registration and get out the vote rights.

And that he’s attempted to get people to pay their poll tax in Virginia and to register and vote.

And then on many occasions, people have told him that they could not register because they could not pay the poll tax.

And he’s observed these people, their living conditions, their personal property, their dwelling houses, and he could testify that they, in fact, lived in poverty.

The third and last witness for the appellant in the lower court was Professor Louis Ogden.

Professor Ogden is from Eastern Kentucky University on the Political Science Department.

He’s a well-known authority on the poll tax.

And his testimony was that he was familiar with the census figures with regard to income and population of Virginia which are made a part of the record in this case.

That he is aware of economic groupings and classes in Virginia.

And that he believes based on his studies, the writings of others, from his personal investigation that the poll tax does in fact inhibit and deter a voting in Virginia.

His testimony further was that he believes that proportionately, the Negro is twice as bad of income-wise as the white and therefore that the poll tax bears more harshly on the Negro than the white.

Plaintiff’s attack as I stated before is under three amendments; the First, the Fourteenth, and the Fifteenth.

We believe that Carrington versus Rash and prior cases have permanently established that a state’s voting regulation is subject to the standards of the Fourteenth Amendment.

And our position is that while the right to vote, we believe, thus come from the State in fact that these cases have established, that it is subject to constitutional guarantees.

And we think that’s beyond doubt at this point.

We further believe that in our equal protection argument, this case is directly analogous to Griffin versus Illinois.

In the Griffin case, this Court held that the State of Illinois could not grant the right of appeal to all those accused and convicted of a crime and then in effect deny it to those too poor to pay for a transcript.

We believe there are three directly analogous points about the Griffin case.

First of all, in Griffin, the Court was dealing with the area of criminal regulation within a state, an area which is certainly peculiarly in the State’s domain.

Just as in this case, we believe the setting of voting qualifications is peculiarly within a state domain, state’s domain subject to constitutional guarantees.

Secondly, in Griffin, the fatal vice or defect which was pointed out was that there was no rational relationship between the ability to pay cost in advance in the innocence or guilt of an accused person.

And in this case, appellant believes and as has been pointed out before here, there is no relationship between the ability to use the ballot and the ability to pay a poll tax.

The element that is lacking here is exactly the element that was present in Lassiter versus Northampton where this Court held that a literacy test or some relation to standards designed to deal with the intelligent use of the ballot.

Well, we believe finally that in Griffin, another analogous point is that the Court, we feel went out of it’s way to point out that it was not holding that the right of appeal was itself essential to due process in that case but rather that once having selected a group who have the right of appeal, the State could not in effect then deny it to those too poor to pay for the perfection of a procedural step.

Just so here, appellant does not urge that Virginia must grant the right to vote to all people.

We believe the State has the right to select those who are reasonably qualified.

But we insist that once having selected the group of people who are going to vote on the basis of reasonable, logical, and rational qualifications, he cannot then, under the guise of another qualification, deny that right to the people who are too poor to pay for it.

What we can say about our property tax —

Robert L. Segar:

Well, I would say the same —

— requirement?

Robert L. Segar:

Exactly the same thing.

That would not be constitutional.

Robert L. Segar:

That’s correct.

Now, we feel the tax has other infirmities —

Hugo L. Black:

I didn’t quite understand what you said.

Robert L. Segar:

I was — in answer to Mr. Justice Harlan, I said I felt a property tax requirement would have no more validity than the poll tax.

Property qualification.

Robert L. Segar:

Property qualification.

Hugo L. Black:

Well, you mean qualification?

Robert L. Segar:

Yes.

Hugo L. Black:

You didn’t say property tax.

Robert L. Segar:

I meant property qua — if I did, I mean property qualification.

No, I must spoke myself on the tax for property qualifications.

Robert L. Segar:

We believe the Virginia tax has other infirmaries in addition to this problem of equal protection.

And that is this, the tax provisions are so inherently unreasonable as to themselves amount to denial of due process.

The requirement of the tax to be paid six months in advance at a time when nobody’s interest in an election is high when the candidates are not out on the stomp and when people are just generally not concerned is itself an unreasonable administrative requirement.

The three year accumulation requirement adds to the problem.

The fact that there is no uniform method of assessment in Virginia so that those who own sufficient property of one kind or another to be taxed, get a tax notice also make it have built for the poll tax, and those who do not own sufficient property will not get billed.

And finally, the final step in this ridiculous picture is the fact that by constitutional provision, the State of Virginia is forbidden from collecting the poll tax by legal process for three years after he’s become due or in short until the tax has cease to affect anybody’s right to vote.

We feel we’ve taken together these administrative steps amount to the fact that as the Government so aptly stated in its brief quoting from a case the tax represents a trap, not a test.

We think that it amounts to a denial of liberty without due process of law because there’s no rational justification for these administrative steps.

The tax is certainly not a revenue measure as that term is normally understood.

First place all of these provisions are designed to discourage the collection of revenue.

Secondly, the highest Court of Virginia has expressedly stated that it’s not to raise revenue.

The justification that the taxes for the purpose of seeing whether a person is interested enough in qualifying himself to vote, in our opinion, simply does not hold water.

For one thing, it assumes that everybody who wants to vote can afford to pay the tax; something which we believe simply is not true.

Secondly, if there was any validity to the test idea here, it could be accomplished simply enough without the payment of a tax.

The payment of a tax is unnecessary there.

Robert L. Segar:

So we believe when taken together, all of these procedural steps themselves amount to a denial of due process.

Now, there are many census figures which we have included in the record through exhibits which rendered additional to testimony that was taken.

And we believe that the record establishes three main facts here.

One that there is great poverty in Virginia; secondly, that poverty is worst among the Negro people than the white people, and finally that the poll tax does inhibit and deter a voting.

And I’m not going in one of those statistics.

I must ask too because some of them have been quoted before.

I might just mention one to give an idea of the nature and gravity of the problem in Virginia.

In this 1960 federal census dealing with the year 1959 in a table which included the incomes of people over 14 years of age, the great majority moreover 21, in Virginia there were 800,000 people without income and 1,900,000 with income.

Now, that 1,900,000 approximately 1,125,000 earn less than $3,000, a figure which has been designated by several governmental agency as the income level below which a family is living in poverty.

The statistics could go on and on to show the numbers of people that are earning income at this bare subsistence level.

Similarly, as to the comparison of the Negro people and the white people, there are many statistics which indicate that relatively the Negro is almost proportionally twice as badly off as the whites.

It was quoted before where families were broken down on the census, 22% of the whites earn less than $3,000, 54% of the Negroes.

And it goes on adding some items if we compare those statistics.

Finally, as far as the tax actually inhibiting voting, we rely on the testimony of Professor Ogden, and acknowledged experts on the tax as well as on the fact that this Court does not need an expert witness to tell if that person cannot afford three meals a day, he is going to think twice about paying for the right to vote.

And of course, the administrative provisions that we have talked about resulting to disenfranchise of — disenfranchising of many people even those who could normally afford to pay the tax.

Is there instance as to whether the poll tax is discriminatory in account of race here?

Robert L. Segar:

There is evidence in the record that it is discriminatory that that isn’t discriminatorily applied.

There is no evidence that they refuse — the State of Virginia refuses to allow Negroes to pay the poll tax or discourages it but there is evidence and we make the Fifteenth Amendment claim which I’m going to get to that tax in actuality is discriminatory and is a violation of the Fifteenth Amendment.

The argument is based on economic statistics but not on the action of administrative officials.

Before I —

Hugo L. Black:

If that’s relevant, that would apply to the payment of all taxes, wouldn’t it?

Robert L. Segar:

No.

Hugo L. Black:

It would not do to the income tax.

Robert L. Segar:

Well I — we’re not talking about the validity of this tax.

We’re talking about tying it to voting.

Hugo L. Black:

Well I — I can understand that but I don’t quite get the relevance here of the statistics about how much money people have.

Robert L. Segar:

Well the —

Hugo L. Black:

As a matter of fact, I don’t get the relevance that there’s much evidence in any constitutional place like this.

Robert L. Segar:

Well the —

Hugo L. Black:

But I particularly don’t get it in this case.

Robert L. Segar:

Well, the relevancy of economic statistics is merely this.

Going back historically, the poll tax was originally a liberal departure from the property holding qualification for voting which was being discussed before I begin to speak.

Harvard — at the time of the Virginia Constitutional Convention of 1902, there’d be no question that the poll tax was merely one of many ways which were considered in order to disenfranchise the Negro.

In fact this Court as recently as Harman versus Forssenius this year, it so stated that the Virginia poll tax was born of a desire to disenfranchise the Negro.

Now, our position is simply this.

It’s not hard to understand why an economic weapon was one of those chosen.

Historically, the Negro had emerged from slavery after the civil war without property and with small economic means.

His position has been slowly improved and has been slowly improved until the day.

In 1902, the framers of the Virginia Constitutional Convention on the poll tax realized that fact.

And they had in mind the elimination of the Negro as a significant political group and we feel this is demonstrated by several quotes in our brief from the convention itself.

And they picked an economic weapon because they knew this would be a disenfranchising weapon.

We believe that the fact that this is what they set out to do plus the fact that the statistics, the statistical evidence, bears out the fact that Negroes are significantly in a major way worse off than whites income-wise and have been so historically means that the tax as it was intended bears more harshly on them.

And we say that it doesn’t make any difference that it may disenfranchise a lot of whites at the same time.

The purpose was to eliminate the Negro and we feel that it’s dominant.

And we feel that —

Hugo L. Black:

Well is that — that argument, if you should win on that ground, I suppose if another state to show that its poll tax didn’t have that motive, it would be valid.

Robert L. Segar:

Well, I don’t rest it solely on the motive.

And I don’t think the motive enough.

Hugo L. Black:

On the purpose, I think what you’re stating it well its own history.

Robert L. Segar:

Yes, that’s right.

But I — the purpose is not enough itself.

I would not say the purpose itself invalidate the test.

But what I’m saying is in the context of its purpose, the fact that it accomplishes the purpose, the fact that it accomplishes the purpose, that is — that’s where the evil lies.

I don’t think it matters what the motives are, there isn’t any evil effect from the tax.

And I think looking for the purpose of the tax merely serves to point out the context in which we’re working here.

I think the evil is that it does discriminate against Negroes because they are identifiable, an identifiable poor class.

And the framers knew that when they drafted this legislation.

Hugo L. Black:

But in effect, like the sales tax does that.

Robert L. Segar:

That’s right.

But again, I don’t say that the poll tax is bad.

Robert L. Segar:

I say the tying of the voting is bad just as I say that tying of any sales tax or any other tax to voting would be bad.

Potter Stewart:

Well, how about a driver’s license which cost $2 a year?

Robert L. Segar:

Are you — I’m not sure I understand well —

Potter Stewart:

Well, (Voice Overlap) you’re not saying the tax is bad but you are saying — but would you say that it would be bad for a state to prevent a person from driving unless he got a license because the — such a tax would bear more heavily upon the — under underprivileged people.

Robert L. Segar:

No, no, I would not.

I think it’s a — I would say that’s a complete different situation for several reasons.

Potter Stewart:

Driving is different from voting.

Robert L. Segar:

Driving is different from voting, and also drivers’ licenses — there might be some germane purpose, the charging of the license tax or post, or fee in case of the driver’s license.

Getting on to prior authorities in this case, namely Breedlove versus Suttles, appellant believes that Breedlove versus Suttles can be distinguished.

As we read Breedlove, it decided three things.

It decided there was no violation of the Nineteenth Amendment.

It decided that voting was not a privilege or immunity of United States citizenship under the Privileges or Immunities Clause of the Fourteenth Amendment neither of which points until we dispute here.

And under the Equal Protection Clause, it decided that the exemptions for women and for this — for women who do not register to vote and for people over 60 were not unreasonable if the State could do this.

The attack on the Equal Protection Clause in that case was in effect that if you tax us, you have to tax everybody.

The attack here is just a converse.

We’re saying that you can’t tax anybody.

And in fact in Breedlove, the Court noted that the tax — that in justifying the exemptions that often there would be people too poor to pay the tax and to enforce it equally would be harsh and unjust.

In the cases after Breedlove, we feel either relied on Breedlove or involve points that are not at issue here.

Our appellants suggest that if the Court feels that Breedlove does rule this case, then it should be overruled.

I’ve already discussed the Fifteenth Amendment and I just want to briefly take up the First Amendment argument which we have also raised in the complaint and carried on through this step in the proceedings.

Hugo L. Black:

May I ask you this that since you’ve brought up that, I understand that it seems to be something in here that our Congress — somebody didn’t want — didn’t want to pass a law by Congress under part two of the amendment.

They wanted to pass the burden over to us to act on the constitutional grounds.

Would you have any doubt that Congress have relied under Section 2 of the amendment — Fifteenth Amendment to provide that poll tax has stand in a way of voting, the only kind of rates, and pass the law as they’ve done with reference to the educational qualification?

Robert L. Segar:

I think that based on the assumption that this is a Fifteenth Amendment violation that they would have a right to pass it, yes.

Hugo L. Black:

I’m not saying it was a Fifteenth Amendment violation.

I’m saying that — they would — this Congress — wouldn’t Congress have the right under Section 2 which gives it a right to legislate — hope that legislation to enforce it, wouldn’t it — is there any doubt in your mind that they would have a right to treat the — this poll tax exactly as they treated the literacy test assuming that they are valid.

I’m only assuming.

Robert L. Segar:

No, I don’t have any doubt on that.

Hugo L. Black:

I have read somewhere that somebody gave advice, that that couldn’t be done.

That ought to be passed over to the Court.

Robert L. Segar:

Well, I think — I think — well, I think that the Congress thought that in — in their authority under Section 2, they implemented the Fifteenth Amendment that they could do whatever they feel is necessary.

(Inaudible)

Robert L. Segar:

I think there was.

Hugo L. Black:

The legislation might be what?

Robert L. Segar:

Dubious (Voice Overlap).

Hugo L. Black:

They thought legislation would dubious by the Congress which had the power under Section 2 to pass a law.

But it wouldn’t — they didn’t seem to have any doubt, you mean that the Court could do it even though the Congress couldn’t?

Robert L. Segar:

I think that’s exactly right.

You weren’t on those hearings?

Robert L. Segar:

No, I was not.

We don’t base our case on it and the Congress said whatever section said that.

In fact, our case started prior to the 1965 Voting Rights Act and is no way dependent on it.

And that that Act is not cited in our brief incidentally.

Under your argument, the Twenty-Fourth Amendment would have been surplusage of the book.

Robert L. Segar:

I would have been what?

Surplusage to the Constitution, wouldn’t it mean that?

Robert L. Segar:

Oh, that’s right, absolutely.

Giving out my final point and that is the First Amendment argument, the Court has on several occasions noted that other rights are protected through the First Amendment incorporated under the Fourteenth Amendment’s Due Process Clause but other than those rights specifically spelled out within the First Amendment, that is freedom of speech, freedom of religion, freedom of assembly.

We think that the Court’s holdings on this First Amendment area can generally be summarized by saying that any action which is a form of political expression has generally been protected.

Now, this has involved cases, we’re petitioning through the Courts who have been involved, the use of litigation to obtain equality, and similar areas.

It’s appellant’s position that voting is the highest form of political expression.

That all other political activity is to no avail that it can influence people who have to cast a ballot.

Further, in this area, appellant believes that this Court has stated on several occasions, notably in the American Press Company or Grosjean versus American Press Company that the power to tax and the power to destroy especially in the area of First Amendment rights.

And the po — that principle is nowhere better illustrated than in this case where the dollar and fifty is legitimate than $50 is or a $100.

Furthermore, those people who are disenfranchised by the tax or just little people that cannot do anything about it, their method of redress to the Government is close to them because they cannot vote.

We feel that what this Court said in Wesberry versus Sanders and reiterated in Reynolds versus Sims adequately sums up the situations regarding our position on the poll tax.

One of the most precious rights in a free society is that of having a voice in the election of those officials who make the laws under which we as good citizens must live.

Other rights, even the most illusory are — or rather, other rights even the most basic are illusory of the right to vote is undermined.

And our Constitution has no room for classification of people in such a way as to unnecessarily abridge that right.

We think the Virginia poll tax laws are inconsistent with that declaration.

Robert L. Segar:

If it please the Court, I would reserve the remaining time for rebuttal to be handled by co-counsel, Mr. J.A. Jordan.

Earl Warren:

You may.

Mr. Gibson.

George D. Gibson:

Mr. Chief Justice and may it please the Court.

The cases that have been presented for appellants and of course — it is a fortunate advocate who can speak with the favoring type of opinion.

We agreed that the enlargement of opportunity in the largest sense is one of the historical goals of our society.

And Virginia has been known to make some contribution in that regard and we’ll do so.

We appear here not in opposition to those aspirations would only to see that they’d be accomplished through lawful means.

The Court no doubt is concerned in seeing that the Government — business of government have conducted within constitutional limitations with the maxim that every man is created free and equal.

But individual freedom is not likely to survive unless the Court also respects the federalist principle which was the great means by which a union of many states was formed and has been maintained despite these trends and changes.

Yet that is the very principle that at bottom.

The object of attack in these cases and what is — I throw one of the few vested jury rights of the States and one of the most delicate and sensitive areas of local government, the rights to suffrage.

Those circumstances reinforced a judicial responsibility to where the particulars of the poll tax here in issue against the specific words and history of the constitutional provisions that are invoked against it.

The cases are simple.

They are very well summarized and fairly stated by counsel for appellant.

With regards to poll tax itself, I think only one additional comment may be made to being the law clearly before Your Honors.

And that is all that is necessary in order to satisfy the requirements of the poll tax if you pay $1.50 in each year by December 5.

There’s no such a case for citizens to make astronomical predictions of future election dates and govern their conduct accordingly.

December 5 is the annual payment date and that’s all it says in the Act.

The presentation or oral argument — I mean, may I add to some statement of facts that Mr. Justice Black may have a comparative approaching with complete serenity the constitutional issues here involve because of the virtual absence of any evidence whatever in the record only a few statistics from census.

The oral arguments had had this advantage of simplifying the issues surprisingly in part for the Court to consider.

At this phase, my learned Brother Brown admits that Breedlove against Suttles is controlling.

And that he cannot prevail unless it’s overruled.

The next phase by distinguished made by the Solicitor General virtually abandoned the argument he’s emphasized so much in this, but this time on the added history, that voting rights derived from the First Amendment, alluding to any argument but without any consistency.

And finally, my Brother Segar admits that the purpose from legislation the motive inspiring it 64 years ago is not determination, but rather the objective, factual operation of the law.

Actually, the case presented by appellants involves as my Brother Segar’s argument so well emphasizes an importance, an emphasis on the importance of certain political rights.

For instance, Bridget is relied on as virtually dispositive where the Court gave such emphasis to the right of appeal in criminal prosecutions, the case obviously involving a deprivation or potential deprivation of liberty of a person contrary to the constitutional requirement.

The Solicitor General has with the eloquent discussions by him emphasized the importance of the political rights of expression at the ballot box without bothering, however, to identify before the Court exactly the origin of the right he has emphasized.

So if the Court would permit, I would like to turn to those constitutional provisions that seems to us dispositive.

I find the declaration of independence or — more realistically upon its vindication by virtually in combat.

George D. Gibson:

The thirteenth colonies, and has became 13 sovereign states with the full panoply of rights associated with that status including most naturally and necessarily the right to determine the qualifications for suffrage.

That existed throughout the period of the confederation until the adoption of the Constitution in 1788.

If anything can be accepted as a certainty, it’s this, that in adopting the Constitution in 1788, no colonial state imagines for a moment, that it was thereby relinquishing its sovereign authority to establish the qualifications, the suffrage in his own local elections.

Quite to the contrary, they provided it even in the election of representatives of the larger house in Congress, House of Representatives, that the qualifications of elector should be those determined by the States before the members of the larger house of the state legislature.

Clearly, it’s left with each day its sovereign power to determine the qualifications in its own election and adapt to them as a matter of federal law for election of congressmen.

Indeed had any other provision that’s been put in the proposed management perfectly obvious it was never have been accepted by the States.

Now, exactly the same policy both in substance and in expression was reiterated in 1913 when the election of senators was transferred from the States to the people.

And here again, the choice was not given to all the people nor where a specific qualifications the particular people enunciated.

On the contrary, the identical language of the original instrument wasn’t here.

The electors in each state shall have the qualifications requisite for election to the members of the most — innermost branch of the state legislatures.

In conclusion, on that one point, the determination of voter qualifications is exclusively a matter of state concern and it’s to be exercised by the State alone as they may wish unless their particular conduct in a particular situation infringes upon some other constitutional inhibition.

Now, passing over the guarantee of a republican form of government as intrinsically too vague and that even — that’s for implementation because of the infirmities, we must look to the amendments and by these points stressed so by my Brother Segar, I’m sure that his position is that the right of suffrage is not a First Amendment right.

We have told on brief that the first — the freedom of speech is a meaningless set of word, a master keystone of the arch is supplied by the right to cast a ballot.

And we’re about to admire the novelty of that suggestion.

We suggest that the Court should reject it for three reasons.

And this says, if the First Amendment had been designed “a comprehensive charter or political freedom and the right to vote is the supreme expression of political freedom, it would have then mentioned, indeed mentioned first of all, when point in fact, it is not mentioned at all.”

And then this is perfectly clearly understood concept, every constitution adopted in 1776 which were five specified freedom of speech as one of the retained rights of people.

They were Virginia, Pennsylvania, Delaware, Maryland, and North Carolina.

And incidentally, it was demanded for the Federal Constitution in adopting that kind of resolutions on New York and Virginia.

But in other documents is there anyway or any hint that the right of suffrage was included within that basic freedom.

The second phase, where the Court unimaginably to read the First Amendment as conferring the right of suffrage, this would contradict the position of Article 1, Section 2, leaving that choice as I said wholly to the States and Your Honors can have a little doubt that that announcement we have inevitably defeated the adoption of the Constitution.

And finally, number three, the First Amendment was of course adopted as a shield against the Federal Government.

And it cannot now be resist to absorb against the States in that of the suffrage unless some curious contrary constructions were required which is not, as I shall show, whether that’s in the history of the Fourteenth Amendment.

So in short, the First Amendment has no reference at all to suffrage and that is conferred, we suggest to the Court, by every subsequent amendment to the Constitution.

Why should there be the Fifteenth Amendment saying that the right to vote should not be denied or bridged on account of race or the Nineteenth referring to sex, or the Twenty-Fourth referring to the poll tax in federal elections, if universal suffrage had been unconditionally guaranteed by the First Amendment.

It would be a bold argument to say that those repeated constitutional amendments were useless, needless, and heedless which is the essence of the argument that’s upon you.

A point of fact contrary to any conception of universal suffrage at the time of the adoption of the First Amendment, I say as has been indicated by statements or questions of the bench, poverty qualifications, work, customary, and prevalence throughout the states at the time of the adoption of the Constitution and a few years later of the adoption of the Tenth Amendment.

Passing then to the Fourteenth Amendment on which great stress is laid by all the appellants, we submit, that how vague this counsel may be in the face of Mr. Justice Holmes, one thing is undeniably clear and that is that it does not include the right of suffrage.

The tax itself as Your Honors will recall includes Section 2 saying that when the right to vote is denied or abridged that the representation of the State in Congress shall be proportionately reduced in (Inaudible)

And that means that the State may discriminate as much as it wishes but will pay the penalty in the prescribed manner for doing so.

George D. Gibson:

That was not merely a matter of interest.

Representative Bingham, Mr. Justice Black has characterized or aptly as Madison of the first section of the Fourteenth Amendment and who has referred to himself conspicuously in the arguments last week in South Carolina closed the debate in (Inaudible), a very solemn and authoritative moment with this statement.

The amendment does not give as the second section shows the power to Congress of regulating suffrage in several states.

That was the House.

I came to the Senate.

Senator Howard’s speaking for the Chairman of Reconstruction Committee said the theory of this whole amendment is to leave the power of regulating suffrage with the people or legislature of the State and not to assume to regulate it by any clause of the Constitution of United States.

Moreover, Your Honors, with your keen historical sense would remember that when that amendment was presented for ratification, ten of the 23 states that ratified it prior to 1870 had tax or property qualification requirements as conditions to the right of suffrage.

Massachusetts was one of them.

New York, curiously enough, did not disqualify paupers in voting nor they required payment of taxes in all cases, certainly not in the case of white paupers, where it did provide that men of other races had to own a free home worth $250 and paying tax on it.

Six of the states required tax payment from all voters.

Hugo L. Black:

When was that (Voice Overlap)?

George D. Gibson:

Six.

Hugo L. Black:

When?

George D. Gibson:

Six and at the time of the adoption of the Fourteenth Amendment.

Hugo L. Black:

When was that requirement?

George D. Gibson:

In — it — in 1868, I believe it was, Your Honor, plus or minus two years.

My suggestion is that inconceivable that so many states would spontaneously undertake to reform themselves at the cost of invalidating their own suffrage requirements particularly when they have been assured, by the Congress of the United States, illustrated by Bingham and Howard that the amendment itself would have no effect upon such values.

They plainly acted on that premise and Congress itself acted on the same premise a year or two later in readmitting Georgia with the poll tax included in its new constitution.

Now, with all those events, quite especially in Minor, this Court in 1875, rejected and attacked by a female citizen on Missouri on a local constitutional requirement limiting the suffrage to male citizens, their contention.

This is Minor against Happersett, 1875.

Her contention was that local law has it all written by the Fourteenth Amendment.

But the Court said certainly is the Courts can consider any question sensibly.

This is one.

For nearly 90 years, the people had acted on the idea that the Constitution when it conferred citizenship did not necessarily consider the right of suffrage.

The Constitution has not added the right of suffrage, the privileges and immunities of citizenship.

Pertaining now, from the Fourteenth Amendment, my next suggestion to the Court is that that construction has been successively and uniformly corroborated by earlier amendments.

Only some three years later, the Fifteenth Amendment was proposed and promptly ratified saying of course, the right to vote should not be denied on reason on account of race or color.

The meaning of that is that until the adoption of Fifteenth Amendment, a state was free to discriminate on grounds of race or color but not after the adoption of the Fifteenth.

The same Congress, condemning the suggestion I just made, rejected numerous proposals to outlaw property and poll taxes either by an act of Congress or by congressional amendment.

So at the same time that it was rejected, those provisions, it limited itself to a guarantee of immunity from discrimination which is what the Fifteenth Amendment embodies.

George D. Gibson:

And following exactly that same constitutional canon, in 1820, the Nineteenth Amendment used precisely the same words in giving immunity from discrimination on a count of sex.

And that again means that until that time, the right to vote could be denied as it indeed it was on the grounds of sex but not thereafter.

It’s more important because dealing precisely where poll tax questions, the Twenty-Fourth Amendment and Mr. Justice Black said that the Congress assumes certain responsibilities of its own provides that the right to vote should not be denied or abridged on — in federal elections because of nonpayment of poll taxes or any other taxes.

So in all three instances, these parallel congressional — excuse me, constitutional amendment dealing with the right to suffrage, the amendment means that the matter was previously untouched by the Fourteenth Amendment but thereafter would be governed by the new amendment to the extent expressed in the Fifth.

I emphasized those last three words no further because this was the point of my concern in the last Congress with regard to a Voting — Voting Rights Act of 1965.

The report of the House Committee on a judiciary recommending the Twenty-Fourth Amendment emphasized that the Twenty-Fourth Amendment would not prevent a state from imposing a poll tax in purely state or local elections.

And indeed, it was admitted that the amendment owed much of it support to the fact that it was precisely so limited.

That was announced in the concurrently accompanying Minority Report Committee.

The same effect on the other side of the Senate, Senator Holland, where he was one of the permanent cosponsors of the Twenty-Fourth Amendment explained to the Committee on the Judiciary in Senate that the amendment does not prevent the imposition of a poll tax as a prerequisite for voting for state or local elections.

I emphasized this part as I have continued because many of us who are cosponsors strongly feels that the elections of state and local offices are more properly and effectively handed at the state and the local level.

And we would strenuously oppose any effort to control such matters by federal law.

Now, I’m not asking Your Honors to consider subtleties or innuendos.

I merely presume to recite a simple narrative, successive constitutional amendments of uniform tenure that we submit established, general constitutional construction in accord with both the text and the history of the Fourteenth Amendment.

Byron R. White:

You use to go — where does that leave you on Carrington and Rash in this —

George D. Gibson:

Thank you very much.

May I go then to the decisions?

Would you prefer that I take that first or (Voice Overlap)?

Byron R. White:

Well no.

Well you go — you go right ahead if you will reach that.

George D. Gibson:

Yes sir, I think I will.

The first decision as I mentioned was of course Minor against Happersett.

I will not repeat that.

But the very next year, this Court pointed out in the Reese case, 1876, that before the adoption of the Fifteenth Amendment, it was as much within the power of the State to exclude citizens of the United States from voting on account of race and so forth as it was on the account of age, property, or education.

That’s why they had the Fifteenth Amendment.

But the Fourteenth Amendment did not prevent discrimination of any such kind.

Then again in Pope against Williams in 1904, a Maryland requirement was sustained requiring registration one year in that case, not six months, one year ahead or, prior to the election date saying the privilege to vote in any state is not given by the Federal Constitution.

No wonder my learned brother now has difficulty in identifying the provision on which they rest.

The Court continued with the question whether the conditions prescribed by the State might be regarded by others as reasonable or unreasonable is not a federal one.

Maybe because that’s exactly the issue arrived by any whether Griffin, a means of the Griffin because of its intrinsic appeal is a ground of constitutionality or not.

Your Honors continued or the Court at that time continued the reasons which may have been held the state legislature to enact the statute in question for matters entirely for its consideration and this Court has no concern about it.

George D. Gibson:

The importance of this principle in the federal scheme received the attention of this Court soon after in the Guinn case in 1915.

There, the Court pointed out but the Fifteenth Amendment did not take away state authority over suffrage because it had belonged to the state governments from the beginning.

And what I do, this is the essence that I cast the whole fabric upon which the division of the State and national authority under the constitution’s breadth would fall.

Byron R. White:

But in your view — excuse me sir —

George D. Gibson:

Yes, Mr. Justice White.

Byron R. White:

Would it take a constitutional amendment in your view to prevent a state from excluding say Protestants to vote?

George D. Gibson:

I can’t — for a religious question, creed is of course a test for some purposes hardly for political purposes upon the theory which we believe established by history that the Fourteenth Amendment does not deal with suffrage and recognizing that no amendment has yet prescribed creed as a permissible criteria of suffrage.

My answer is that a constitutional amendment would be provided.

Byron R. White:

Like if you — like if you — and similarly if Virginia wanted to say the only people who can vote in Virginia are those who were born here.

George D. Gibson:

Well, that in fact Your Honor comes at close to the Rash case which in effect denied the privilege of acquiring citizenship in Texas to say this man and I would hesitate to contradict Rash, Mr. Justice Stewart was eloquent in that case.

Excuse me.

Byron R. White:

Well, anyway, I would think that you would have almost have the same answer that if I take it, a constitutional amendment to restrict Virginia’s privilege in so qualifying its voter — voters.

George D. Gibson:

I think Your Honor is correct, Mr. Justice White.

And a similar answer would be possible I suppose where Massachusetts is to say that a vote could be cast only by Adamson and in South Carolina, only by (Inaudible).

It’s refreshing how we’re about to recollect if no such occasion has yet risen.

Byron R. White:

And that — and that someone think that the situation we have here is quite similar.

I guess we’ll have to wait for the —

George D. Gibson:

The similarities are distant.

I’m puzzled from the moment.

I don’t commit.

We come then to Breedlove.

The Solicitor General alluded (Inaudible) I think rather faintly to the possibility that it dealt with sex.

I gathered that there may be some implication from its title to that effect.

But in point of fact, that was not the issue presented to the Court.

The official report makes it very clear, that the argument of those attacking the local statute in that case is precisely what the Court hears today from a visible with a characterized argument of the appellants in a single sentence.

The argument there was the admission today that a state has the power to prevent its poor inhabitants from participating in the choice of federal officials would be totally contrary to the contemporary spirit of American institution so there couldn’t be a squarer attack upon the power of the State to require payment of poll tax as a condition to suffrage.

But the Court had no trouble in disposing of that and it said to make the payment of poll tax prerequisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment.

And that such a custom was read, familiar, and reasonable regulation long enforced in many states.

Mr. Justice Clark asked earlier if they went to such a good decision.

There was, Butler against Thompson, a decision by a three-judge court in the District of Virginia affirmed here per curiam in 1951 where at a time finally goes decision in Virginia on the poll tax requirement precisely the same one here in issue was rejected by the court below and affirmed here despite invo — the invocations of the Fourteenth and the Fifteenth Amendment.

George D. Gibson:

And some of the particulars of that argument felt more personally on the Fifteenth Amendment which I shall come in dealing with Evelyn Butts.

So we submit to the Court that the court below in the instant case rightly concluded the decision had been squarely settled by this Court both in Breedlove and in Butler.

And beyond that, that this Court correctly so decided in view of the constitutional text and history.

And during the last two years, as Mr. Justice White have indicated, the Court is faced with a number of civil rights cases.

The most prominent ones of course are the reapportionment cases.

I’m getting with Baker against Carr, going on to Gray and Sanders, Wesberry and Sanders, and most lately Reynolds against Sims.

But none of those raised the question of the qualification to vote which the only question presented to the Court today.

The Government here admits, page 23 of its brief, that each of the apportionment cases dealt only with the right of persons qualified under state law to vote and the holding of the Court was put fair weight must be accorded to a vote once cast.

It couldn’t mean to allot or diluted by unfair apportionment territorial or several means of calculation.

Another recent case was United States against Louisiana.

That involved no new principle that was decided same day with Mr. Justice White’s question, Carrington against Rash.

Indeed our principle as old as Yick Wo against Hopkins in 1886 namely that a lower house who have affair on its phase is indolent if it is systematically employed to discriminate against a chosen race or (Inaudible).

And before as referred to Carrington against Rash, may I mention two cases referred to our brief and I do so because this comment was not made in our answer brief.

Nixon against Herndon and Nixon’s same intangible judgment against Herndon, 1927 and 1932 respectively challenging action of Texas or to be more exact, action in Texas, that denied him the right to participate in a primary.

Both of those decisions invalidated that action under the Fourteenth Amendment.

And the point of my present comment is that at that time, Classic had not been decided intervening the primary with the voting process that receives this constitutional protection.

At that time, the theory was that a primary was a private action of a private route and not state action to which the command of the amendment was addressed and for that reason not quite political question raising the issue of suffrage or qualification after therefore the Court’s dispose of it under the Fourteenth Amendment.

But Classic has now reversed that doctrine.

A primary is recognized as being an integral part of the election process such as of the general election itself and for that reason, both of those cases have now disappeared.

We submit and just by being swallowed up in their overall decision in Smith against Allwright where the classic doctrine was applied to the Texas primary, so then Carrington against Rash deferred answer to Mr. Justice White’s question.

There, an army sergeant, not born in Texas, had come to Texas in an on service.

And by their actions, the detail of them not being of interest except to say they were overwhelming had satisfied all normal requirements for residents in Texas to such extent indeed that as the Court said, that Texas conceded his right to vote but for his uniform.

But Texas law said that no serviceman may ever acquire a voting residence in the State so long as you remain in service.

And the Court held this contrary to the Equal Protection Clause as a permanent disfranchisement of all servicemen as follows.

Turning back two years Senator Sander said in the debate on the Fifteenth Amendment nothing can be a qualification for voting which is not in its nature attainable as residence, property, education, or character.

Each of which is within the possible reach of well directed effort.

But residence having been admittedly attained in fact and recognized as Mr. Justice Stewart’s opinion pointed out for other purposes like divorce, Texas was not at liberty, capriciously and in perpetuity to disfranchise a class because of the way they might vote any more than a vote could be diluted through malapportionment as in the apportionment cases of which I suggest.

Byron R. White:

Because equal protection —

George D. Gibson:

Yes Your Honor.

Byron R. White:

— forbids for — for —

George D. Gibson:

Yes, precisely, Mr. Justice White.

I suggest that the real analogy of Carrington is with the apportionment cases.

Abe Fortas:

Mr. Gibson, I take —

George D. Gibson:

Yes, Mr. Justice Fortas.

Abe Fortas:

I take it then that you do agree that there are some restrictions upon the right of the States to prescribe the qualifications of voters, if that is not an unqualified unrestricted right.

George D. Gibson:

In light of Carrington, I would devow to say that that was not true, Mr. Justice Fortas.

Abe Fortas:

Then what is not true?

George D. Gibson:

I agree that there are some restrictions of rationality.

Abe Fortas:

And the restrictions in your view that permissible — the restrictions on the right of the State to prescribe the qualifications of voters are restrictions that confined the strength to qualifications of a rational in the sense that paying relate to the right to vote, is that what you’re — what I’m trying to understand from your last remark.

George D. Gibson:

That distinction is of course I believe Mr. Justice Fortas and your last formulation would go a little further and I think it is — if I intended certainly —

Abe Fortas:

I’d like (Voice Overlap) I’d appreciate knowing your view of it (Voice Overlap)

George D. Gibson:

What I intended to say was that in Carrington, the action of the State so far departed from the manifest facts of domicile, residence acquired in fact and recognized for other purposes that it was in effect not a good faith establishment of voter qualifications but an invidious disqualification in perpetuity in that sense of holding irrational act.

Abe Fortas:

And I suppose taking into account that principle as well as the specific language of the Fifteenth Amendment.

If the State said that no Negro shall be qualified to vote, would you — would your view be that that would be an unreasonable, unlawful, unconstitutional exercise of the State’s right to prescribe the qualifications of voters?

George D. Gibson:

Well, I’ll tell you, the proscription on Negroes as a class would violate Fifteenth Amendment automatically.

Abe Fortas:

Yes, and I tried — what I’m saying is that my effort against clear view of your theory would if you were at least forget about Fifteenth Amendment.

In the absence of the Fifteenth Amendment’s expressed provision, how would you feel about that as to whether the State has the right to prescribe such qualification for voting?

George D. Gibson:

Such a qualification as what, Mr. Justice Fortas?

Abe Fortas:

No Negroes may vote.

George D. Gibson:

Oh excuse me.

That statement is like to Mr. Justice White’s question with regard to a particular creed is.

Abe Fortas:

Yes.

George D. Gibson:

I know of nothing in history except Carrington against Rash that has undertaken to apply the Fourteenth Amendment in the field of voter qualification.

Abe Fortas:

So it is your view that putting aside the Fifteenth Amendment is rather in the Constitution that would prevent a state from prohibiting Negroes from voting.

George D. Gibson:

I think that is true, Mr. Justice Fortas.

Byron R. White:

I suppose until the — until shortly before the Fifteenth Amendment, many, many, many states did prevent Negroes from voting, did they not?

George D. Gibson:

They did in fact and if this Court said that they would, they would have intended to do so.

In Reese —

Byron R. White:

How do you view this —

George D. Gibson:

No, the reason why Fifteenth Amendment was adopted.

Abe Fortas:

How about the Equal Protection Clause, Fourteenth Amendment as applied to that situation, what’s your view of that?

George D. Gibson:

Well, of course Mr. — Mr. Justice Fortas, Congressman Bingham and Senator Howard’s remark were made with regard to the whole of the amendment and not merely a portion.

The Equal Protection Clause and the Due Process Clause and Privileges and Immunities Clause were all intended to stop short of regulating suffrage in the several states.

That was a vague debate in Congress at that time between the civil rights and the political rights of the groups that are seeking to protect.

And the line was sharply drawn as they thought a bright line between the two so that political rights were not, at that time, commentated as being within the protection of the amendment.

Abe Fortas:

So that you do not — if I understand your position then, you do not regard the right to vote as within any part of the Fourteenth Amendment either the Privileges and Immunities Clause or the Equal Protection Clause.

George D. Gibson:

Yes, Mr. Justice Fortas, that’s quite correct.

I would think a stronger case could be made for the right to vote being within the protection of the Federal Constitution under Article 1, Section 2 as applied to federal elections because there, the question of suffrage was explicitly being dealt with.

Abe Fortas:

What about our cases under 242 that deal with the — their reconstruction statutes, that deal with the forceful interference with the right to vote in federal elections?

George D. Gibson:

Well, I was going to say that they recognized that when Article 1 Section 2 conferred the right of federal suffrage upon citizens who had the qualifications for electors prescribed by the States, the fact made the right to vote in federal elections a federally granted right and thus within the protection of the statutes that were mentioned.

But in doing so, Article 1, Section 2 does not, in any sense, alter nor does it give the Congress the power to alter the requirements that the State may impose on elections for local offices.

So in short, on Carrington, I would think it’s fair to say that that was not actually a bona fide effort to establish qualifications to vote as in any commonly understood sense of that term.

Indeed, Mr. Justice Stewart’s opinion indicates that the statute of Texas, number one, was unique, and number two, might well be read as forbidden the acquisition of residence in Texas for any purpose.

I’m being concerned with that as a capricious phenomenon of equal protection in establishing residence rather than shooting at the suffrage privilege.

We only have a case that I would like to mention is the more recent one, however, after Mr. Justice White’s question about Carrington —

Byron R. White:

(Inaudible)

George D. Gibson:

It wasn’t asking for a commitment.

Merely on the case that might be mentioned to complete the catalog doesn’t take — may take you relevant though it is in Virginia and I mentioned that’s in Forssenius case of the last term when the Court found that it was not competent for Virginia after the Twenty-Fourth Amendment, I was relying for the poll tax in federal elections to exact as a privilege of foregoing payment on the poll tax.

The filing of a suppose residence certificate that had to be executed by certain formalities that the Court being cumbersome and hence of a nature to abridge the free exercise of the constitutional privilege that has no grounding here, I believe at all.

It seems just then fair to summarize the decisions of this Court as by saying that they have uniformly sustained the power of the states over suffrage requirements except only in the one instance of Carrington where I repeat, it was permissible to conclude as the court did that there was no good faith effort to establish qualifications but an effort to deny the acquisition of those qualifications in perpetuity.

Abe Fortas:

Mr. Gibson, may I ask you whether in Virginia, they hold elections for federal office and for state office at some times on the same day.

In other words, are there years —

George D. Gibson:

Yes, Justice Fortas, they do.

Abe Fortas:

And how does that work now?

Does the person come to the poll and he gets a ballot, I suppose that he hasn’t paid his poll tax.

He gets a ballot.

The federal ballots but not state ballots, so that he’ll go into the voting booth about — if the man has not paid his poll tax, he’ll go into the voting booth with just the federal ballot and somebody who has paid his $1.50 or is exempt under these various provisions would go into the voting booth next door with the — both ballots, is that the way it works?

George D. Gibson:

I think so.

I’d like to confirm it by asking the Solicitor General Marshall, suppose he would permit.

Excuse me, I was wrong.

Abe Fortas:

I see.

George D. Gibson:

We — in Virginia do not have federal and state elections at the same time.

So the problem put, Mr. Justice Fortas, does not occur in practice.

Abe Fortas:

I see.

Thank you.

George D. Gibson:

Moving on then to our next point, it is that the Virginia poll tax does not violate the Equal Protection Clause.

Now, this is insubordination to our general position that the Fourteenth Amendment as such have in full application in any sense to suffrage qualifications but some particular comments on Virginia poll tax.

First of all, when the amendment, the Fourteenth Amendment was adopted, I’d — if I mention that six states had tax requirements in effect as to payment of taxes, it’s a condition to suffrage mostly in the form of poll tax requirements and that sooner after Georgia was reinvented with a similar poll tax provision in their Constitution, after screening by Congress to ascertain its compliance with the standing of the Fourteenth Amendment.

Because as Your Honor said in Breedlove, that was a familiar reasonable method of regulating suffrage long enforced in the States.

Again here, appellants reiterate the argument in Breedlove that the House whether general and prevalent property requirements may have been his qualifications for voting, that’s the ownership property, as qualifications of voting and a poll tax requirements may have been his qualifications for voting and all that there is, they are no longer in keeping with modern conditions because they lost their relationship to current conditions.

Well, if this Court is going to sit as a guarantee of modernity in all practices, your docket will certainly be accounted.

Well actually, although that is the appearance with which appellants would seek to quote that appeal, what it really comes down to is a prayer that this Court should utilize the Equal Protection Clause to extinguish the historic functions of the states to regulate a matter that would always been recognized as their exclusive providence for the purpose of permitting diversities of view that you do in accommodating those diversities to disability of the general public as a federal system.

What?

Even if the Court referred you to all of that and to say that wherever you think is reasonable is to prevail and whatever you don’t think is reasonable had to be struck down, then even at that point we suggest that the Virginia poll tax as presently on the books and as presently administered is rational, serviceable, and nondiscriminatory.

That being so closely related to the Fifteenth Amendment, we contend to that unfortunately as the major point.

And the fifth element of it is no racial discrimination.

When the Fifteenth Amendment going back now to the time of its proposal in Congress, was under discussion in Congress, amendments to prohibit property qualifications or educational qualifications and to prohibit the poll tax in terms where as I said repeatedly rejected.

And the meaning of this was emphasized by Senator (Inaudible) who said that the amendment, Fifteenth Amendment, does not take away from the State the right to regulate leave the states to declare that a man shall not vote and unless assessed to as freehold or has an education and can read the Constitution, whole question of suffrage subject to the restriction that there should be no discrimination on account of race is left as it now is.

At that point, therefore, it was perfectly clear that the states were free to impose property, tax, or educational requirements without a prohibition by the Fifteenth Amendment and without regard to what the consequential effect upon particular groups or races might be.

Now, whatever may be the practice in other states, it has been repeatedly found that in Virginia, the poll tax is in fact administered without any racial discrimination.

The suffrage —

Abe Fortas:

Supposed they were proved, Mr. Gibson, I suppose we have before us the record that proved just to accept that premise that the purpose and the effect of the particular tax were to abridge the right of senators to vote on account of color or race.Would that come within the language of the Fifteenth Amendment?

George D. Gibson:

If the effect were, then Your Honor will have a case under the Fifteenth Amendment.

Abe Fortas:

And if so that your position now is that the effect of the poll tax has not been demonstrated to be — to abridge the right of persons or citizens of the United States to vote on account of race or color.

George D. Gibson:

Correct, that’s correct, Mr. Justice Fortas.

Abe Fortas:

What is this state of the record in the number 655, Butts and the counsel, Mr. Segar described that correctly?

George D. Gibson:

I believe, Mr. Justice Fortas, he did.

Counsel below said that the hearing and I quote that the only issue was “an economic hardship”.

And in Harper, counsel below said, again I quote, “We don’t feel that there are any factual issues”.

Abe Fortas:

Well then, yes but the issues that you and I are discussing leaves there as whether the effect of the poll tax is to abridge the right of citizens to vote on account of race or color.

Abe Fortas:

And Mr. Segar’s table would indicate to me, right in the record in that case here, Mr. Segar’s statement would indicate for me that there is some evidence for his work that that is the effect of the Virginia poll tax.

George D. Gibson:

Well, I believe it’s going to pay this that that is an argument of interpretation based upon economic effect which —

Abe Fortas:

I see.

George D. Gibson:

— if permitted I would like to make my last point.

Abe Fortas:

Yes.

George D. Gibson:

At the moment, I’m arguing that there’s no discrimination against a race as such and that was admitted, I believe, by counsel below in asserting as I quoted that their only objection was that the tax constituted “an economic hardship” there endeavor to equate economy or the vast of it with racial status.

Abe Fortas:

Well, if you charge the people million dollars to vote that the effect of that would be economic and it all (Voice Overlap) —

George D. Gibson:

It’s got to be economic, yes.

Abe Fortas:

— it also might deprive some people the right to vote.

George D. Gibson:

I could well imagine that.

I was on the point of suggesting that it has been repeatedly found in Virginia the poll tax is administered and here I’m not dealing in economic terms but in racial terms without any racial discrimination whatever and I think that is in the appellant’s starting point on which to weigh any consequential economic defense.

First of all, in Butler against Thompson mentioned earlier by Mr. Justice Clark, the Court I affirmed here per curiam, 1951, the court below found that evident showed “the practices and procedures in administering the poll tax law as its prerequisite to voting were precisely the same as to Negroes and white persons.”

Then the civil right, United States Civil Rights Commission in 1959 found, again I quote, “The poll tax is not a serious — a restriction as it once was for it is difficult to administer so as to bar Negroes alone from ballot box.”

And two years later in 1961, the state commission reported with that — with the possible exception of a deterrent effect of the poll tax which does not appear generally to be discriminatory upon the basis of race or color, Negroes now appear to encounter no significant racially motivated impediments to voting in four of the 12 southern states; Arkansas, Oklahoma, Texas, and Virginia.

And to the same effect, the court below found in the instant case, “No racial discrimination is exhibited in application of the tax as a condition to voting”, this is how we are.

Am I correct in my recollection that Congress purported to make although it did not enact any anti-poll tax legislation born to make findings as to the poll taxes.

George D. Gibson:

Mr. Justice Harlan’s question is very appropriate.

I was coming immediately to that.

And I was going to ask you on that assumption on what effect if any should that have that broaden the definition.

George D. Gibson:

To begin with, no declaration of fact, not purported finding of fact by Congress can be intrusive on this Court otherwise the power of this Court to review the constitutionality of federal legislation would be at an end.

In the next phase, I use the word ‘declaration’ in the set of finding because I think that it’s an actual term to describe what Congress actually did in this instance so far as Virginia is concerned.

The Solicitor General in his brief has referred to a number of passages in the record before Congress as supporting a finding of discriminatory effect, Mr. Justice Fortas, in Virginia, but what do those references show?

Only this, before the committee, one man, Mr. Tucker represent the International Association for the Advancement of Colored People testified at second or third-hand hearsay that he has heard that some commissioners of revenue said to some people that they did not have to pay the tax unless they wished.

The only other thing, were declarations by two senators in debate on the floor to this effect.

Number one, the motives of Virginia convention of 1902 were bias and evil.

And number two that the economic position of the Negro race in Virginia was nearer the poverty level or more within the poverty level than in the case of white people.

That was all before the Congress.

So I suggest to the Court that that could not rationally be viewed as a fin — a basis for a finding in any tenable sense that Your Honors could sustain for instance on the appeal from an inferior tribunal certainly as applied to Virginia.

I would regard it more therefore as a declaration but how are the few.

And according with all respect that it’s natural to accord the facts of the federal colony, surely, it is not conclusive and does not foreclose.

George D. Gibson:

It is a free examination of the facts in this case.

Indeed, I’m sure they remember the Court will recall they reiterated admission of the Attorney General in the South Carolina arguments last week that they had no evidence to present to Congress of discriminatory practices in Virginia said at least two or three times and answered the questions from the bench.

Certainly, an idea and quite briefly with the question of original motive, I say quite briefly because essentially admitted these by one of appellants that that has little bearing upon present conditions.

It is admittedly true that many of the most prominent and extreme cartographs I think was the one quoted Forssenius last year, members of the Constitution from 1902 said it was their purpose to discriminate against the Negro so far as the Federal Constitution might permit them.

But that was by no means the universal view of the convention.

I think it would be difficult to show that it was the prevailing view of the conventions.

Certainly, there were many other views expensed of which I quote too.

One that by a proposed poll tax requirements, more white people then will be stricken from our registration rolls than Negroes.

But that was not the basic aim.

Virginia had suffered throughout an agonizing period of reconstruction following her defeat in the civil war and her efforts to retrieve her statute of equality on the states of the union.

And basically what the convention wish to do was to eliminate the illiterate.

And this was expressed on the floor of the convention that their purpose was to eliminate the illiterate “not only in the country but in the cities and towns, not only among the blacks but among whites in order to deliver the State from the burden of illiteracy and poverty, and crime which rests on it like a deadly poll”.

And crucially, this was summed up by another delegate, Mr. Weiser, in his words speaking of the poll tax requirement we can — in its specific nexus of the six months prepayment.

Then we have an educational requirement.

The voter has to pay a poll tax, prepare his own application, and cast his own ballot.

The plan virtually eliminates the incompetent from politics.

So we think it’s unsupported to say that the motives of the convention were predominantly evil but even if they have it, this Court has uniformly recognized that that is not the ground of invalidating legislation.

Mr. Chief Justice Marshall pointed that out 150 years ago in Fletcher against Peck that if for them to say aptly one which the legislature might constitutionally pass, a court cannot entertain a student, founded on the allegation of the interior motives which influence their members.

And more recently, the Court reiterated in 1951, Tenney against Brandhove, the holding in the Court in Fletcher against Peck, that it was not consonant with our scheme of government for the Court to inquire into the motives of legislators as remained unquestioned and specifically on this Virginia poll tax, the current issue, it was held in Butler that a law is fair on its face and it’s also fairly administered.

It is not rendered invalid by the equal motives of its chancellors.

The question before — the next question, I would like to take up is the relationship of the poll tax to the actual qualification of voters to cast the ballot.

And that on the assumption, extreme assumption, I mentioned earlier that the Court will regard a test of reasonableness as controlling irrespective of constitutional provision.

The point of emphasis here is the point I started out with, that no prediction of future election date is required in order to comply with the six months prepayment requirement because the uniform rotation of the sun brings December 5 back into view every year.

And all that any voter has to do is to pay $1.50 on or before that date in every year.

And he’s in business so far as the right of suffrage is concerned.

Earl Warren:

We’ll recess now.