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Long Lines to Vote Are Unconstitutional

If there is one enduring legacy of American democracy, it is a profound commitment to preventing people from voting. Under the Constitution, state governments are given wide leeway to regulate the “Times, Places, and Manner,” of Elections for Senators and Representatives, subject to Congressional regulation, and unmitigated discretion with which to regulate the selection of electors for president. The result of these clauses is that legislation regulating the administration of elections is almost exclusively under the province of the states. Historically, state governments have used this power to systematically disenfranchise citizens with property requirements and blatant sex and racial discrimination, the last of which was enshrined in law until the 1960s. Today, many states continue to disenfranchise people with mental disabilities and incarcerated people. A far more mundane barrier to voting, but one that causes serious harm, is the long wait that faces many voters at their polling places.

Long lines to vote have plagued American elections, and the presidential election of 2020 was no different. Even just during early voting, polling places in states across the country such as Wisconsin, Georgia, and New York saw exceedingly long lines, with some voters even waiting up to ten hours to cast their ballots. Reports of such excessive waits on Election Day were less common, but long lines persisted in a number of locales. The idea that these long lines are a problem is uncontroversial; a wealth of scholarship has made it clear that long wait times to vote harm our democracy by discouraging people from voting and imposing real financial costs on voters. But, waiting in line to vote isn’t just annoying; it’s unconstitutional.

Poll taxes, which require prospective voters to pay a tax in order to cast their ballots, have only been unconstitutional for about fifty-five years. During the beginning of Reconstruction, the twelve-year period after the end of the Civil War, the US ratified three Constitutional Amendments: the 13th, abolishing slavery; the 14th, guaranteeing citizenship and equal protection under the law to all people born in the United States; and the 15th, declaring that no government can abridge a citizen’s right to “vote on account of race, color, or previous condition of servitude.” However, the United States would not truly extend full enfranchisement to Black Americans for nearly another century. More than 500,000 Black men became voters during Reconstruction, electing about 2,000 Black representatives to public office — including 16 congressional representatives. But, former Confederate states, desperate to reestablish white supremacist rule, responded by passing restrictive laws aimed at disenfranchising Black Americans.

Officials in various Southern states required Black voters to pass so-called “literacy tests,” comprised of intentionally confusing answers (which one informal survey in 1965 found were too difficult for about 70% of a group of constitutional law professors), and pay poll-taxes, which in some states were cumulative, meaning that voters would have to pay the tax for each year since they turned 21 before they could vote. White voters were systematically exempted from these requirements through “grandfather clauses,” which granted exemptions for anyone whose ancestors had the right to vote before the abolition of slavery — a provision that virtually no Black citizens at the time could meet. Combined with the terrorism of the Ku Klux Klan, these laws effectively disenfranchised Black Americans until the Civil Rights movement nearly a century later. In 1964, the United States ratified the 24th Amendment, explicitly banning poll-taxes. The next year, Congress passed the Voting Rights Act, which banned literacy tests and required that states with a history of egregious electoral discrimination seek approval from the Federal Government before making any changes to their voting procedures.

The Voting Rights Act remained in effect until the Supreme Court gutted it in 2013, claiming, controversially, in Shelby County v. Holder that the clause requiring approval of electoral changes from the Federal Government for certain states was based on outdated evidence of discrimination and thus imposed an unconstitutional burden on certain jurisdictions. Since then, state officials have closed over 1600 polling places, mostly in minority communities, exacerbating the already significant problem of voting lines in the US; one study found that “roughly 3.5 million voters [had] waited longer than 1 hour” to vote in 2012, a year before Shelby County. From 2014 to 2018, the percentage of voters who waited longer than 30 minutes to vote doubled.

Like so many obstacles to voting, long lines at polling places disproportionately affect low-income and minority voters. One UCLA study found that, in 2016, voters in Black neighborhoods waited 29% longer and were 74% more likely to wait more than 30 minutes to vote than residents of white neighborhoods. This increased to a 45% longer wait for Black voters than white voters in the 2018 midterm elections, according to a study by the Brennan Center for Justice, a non-partisan policy institute. Another study by researchers at UC Berkeley found that, in California, voters stand in line for eleven fewer seconds “for each additional $10,000 of median household income.”

These long waits have consequences. Long lines suppress turnout, since prospective voters on their way to their polling place might see the line, balk at the prospect of waiting, and head home. Evidence also suggests that long lines decrease the likelihood that voters will vote in following elections; according to one study, “…for every additional hour a voter waits in line to vote, their probability of voting in the subsequent election drops by 1 percentage point.” Additionally, long lines have very real financial costs for voters. Many states do not require that employers provide paid time off to vote, meaning that waiting in line can literally cost voters money. This financial cost alone can be enough to discourage people from voting, particularly low-income individuals and those who work multiple jobs. In fact, one study found that voters waiting in line at polling places “paid, collectively, over half a billion dollars in lost wages” in 2012 alone.

At its most basic level, this is essentially the same as a poll tax, with prospective voters being forced to face a government-imposed financial cost in order to vote. The causes of long lines are complex, involving a combination of resource misallocation, a dearth of polling places, and bureaucratic incompetence, but all of these issues are clearly the responsibility of state governments. Governmental decisions to limit the number of polling places, combined with administrative missteps at best (and deliberate resource misallocation at worst), lead to long lines. These long lines lead to missed wages, thus establishing a tax.

According to Section 1 of the 24th Amendment, the right of citizens to vote “shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.” If a long line at a polling place is a poll tax, then waiting to vote is undoubtedly unconstitutional. From the standpoint of Constitutional theory, this reading does require a logical step, but not a huge one. The fact that long waits are not explicitly intended by state governments as a tax is no obstacle to this theory, since the Supreme Court has already found in NFIB v. Sebelius (2012) that a government-imposed fee can qualify as a tax despite the government not calling it such. The basic problem is whether a financial cost can qualify as a tax even if it does not involve the government collecting any revenue. While the fact that these long lines constitute a government-imposed financial burden is a clear justification for their being considered a tax, this legal definition of a tax is not universally agreed upon. This argument would certainly not hold up under a textualist reading of the Constitution, but it’s clearly aligned with the moral spirit of the 24th Amendment. When the Amendment was passed, five states still maintained poll taxes, which the Amendment was directly instrumental in abolishing, positioning it as fundamentally opposed to the notion that the government should force anyone to pay a financial cost to vote in federal elections. Jim Crow-era poll taxes were nefarious because they were imposed by the government and prevented people from voting, both of which are true of long lines. The fact that they created revenue for state coffers seems hardly relevant.

If this theory held weight, its implications would be wide-reaching. There has been a surge of lawsuits in federal court concerning election access this year, with mixed results. This theory could present a new avenue of litigation; plaintiffs could argue that states closing polling places or allocating insufficient resources, like voting machines, constitutes a violation of the 24th Amendment. This legal strategy would only be worthwhile, of course, if courts would take the argument seriously, which is far from assured. As reasonable as this expanded definition of poll-taxes may be, it lacks precedent.

The biggest implications of this theory are more for the legislative branch than the judicial. Section 2 of the 24th Amendment reads: “The Congress shall have power to enforce this article by appropriate legislation.” If long lines are a poll tax, then Congress can pass legislation to shorten those lines. Under this theory, then, Congress would have wide latitude to pass laws governing the allocation of election resources, even mandating a minimum number of polling places per district, anything that could reasonably reduce long lines at polling places. This would be a massive expansion of Congress’ power to legislate concerning election administration. Of course, state governments affected by these laws would likely challenge them in court, so any such legislation would inevitably face the problem of convincing a judge, or even the Supreme Court, of the legitimacy of this theory. Nevertheless, government litigators likely have the resources to fully pursue such a potentially risky argument in a way that private plaintiffs do not.

Even if this argument’s low likelihood of prevailing before the Supreme Court means that Congress will likely not use it to justify expansive electoral legislation anytime soon, it still has serious practical value as compelling rhetoric for grassroots organizers. Electoral procedure will continue to be decided at the state and local levels, meaning that local volunteer movements will be crucial in pressuring governments to institute reforms. This rhetoric, grounded in a practical understanding of the very real costs of long voting wait times, could galvanize voters to demand more equitable distributions of polling places and election resources. Protesting a long line might not sound like an urgent calling, but rallying in defense of your constitutional rights certainly is.

Electoral procedures in the US are in dire need of reform, and the American people must pursue whatever avenues we can to bring that about, whether through the courts, the Congress, or, most likely, our local governments. In any case, it’s crucial that we not accept the numerous obstacles and difficulties to voting as inevitable, or fail to grasp their gravity and danger. Not only do these roadblocks cause real harm to our democracy, but they trample on our constitutional rights.

Photo: Image via Flickr (Chris Goldberg)