Harper v. Virginia Board of Elections/Dissent Harlan

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.

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

I do not propose to retread ground covered in my dissents in Reynolds v. Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1395, and Carrington v. Rash, 380 U.S. 89, 97, 85 S.Ct. 775, 780, 13 L.Ed.2d 675, and will proceed on the premise that the Equal Protection Clause of the Fourteenth Amendment now reaches both state apportionment (Reynolds) and voter-qualification (Carrington) cases. My disagreement with the present decision is that in holding the Virginia poll tax violative of the Equal Protection Clause the Court has departed from long-established standards governing the application of that clause.

The Equal Protection Clause prevents States from arbitrarily treating people differently under their laws. Whether any such differing treatment is to be deemed arbitrary depends on whether or not it reflects an appropriate differentiating classification among those affected; the clause has never been thought to require equal treatment of all persons despite differing circumstances. The test evolved by this Court for determining whether an asserted justifying classification exists is whether such a classification can be deemed to be founded on some rational and otherwise constitutionally permissible state policy. See, e.g., Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; Barrett v. State of Indiana, 229 U.S. 26, 33 S.Ct. 692, 57 L.Ed. 1050; Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660; Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760. This standard reduces to a minimum the likelihood that the federal judiciary will judge state policies in terms of the individual notions and predilections of its own members, and until recently it has been followed in all kinds of 'equal protection' cases.

Reynolds v. Sims, supra, among its other breaks with the past, also marked a departure from these traditional and wise principles. Unless its 'one man, one vote' thesis of state legislative apportionment is to be attributed to the unsupportable proposition that 'Equal Protection' simply means indiscriminate equality, it seems inescapable that what Reynolds really reflected was but this Court's own views of how modern American representative government should be run. For it can hardly be thought that no other method of apportionment may be considered rational. See the dissenting opinion of Stewart, J., in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632, and my own dissenting opinion in Reynolds v. Sims, supra, 377 U.S. at pp. 615-624, 84 S.Ct. at p. 1409.

Following Reynolds the Court in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, applied the traditional equal protection standard in striking down a Texas statute disqualifying as voters in state elections certain members of the Armed Forces of the United States. But today in holding unconstitutional state poll taxes and property qualifications for voting and pro tanto overruling Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, and Butler v. Thompson, 341 U.S. 937, 71 S.Ct. 1002, the Court reverts to the highly subjective judicial approach manifested by Reynolds. In substance the Court's analysis of the equal protection issue goes no further than to say that the electoral franchise is 'precious' and 'fundamental,' ante, p. 670, and to conclude that '(t)o introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor,' ante, p. 668. These are of course captivating phrases, but they are wholly inadequate to satisfy the standard governing adjudication of the equal protection issue: Is there a rational basis for Virginia's poll tax as a voting qualification? I think the answer to that question is undoubtedly 'yes.'

Property qualifications and poll taxes have been a traditional part of our political structure. In the Colonies the franchise was generally a restricted one. Over the years these and other restrictions were gradually lifted, primarily because popular theories of political representation had changed. Often restrictions were lifted only after wide public debate. The issue of woman suffrage, for example, raised question of family relationships, of participation in public affairs, of the very nature of the type of society in which Americans wished to live; eventually a consensus was reached, which culminated in the Nineteenth Amendment no more than 45 years ago.

Similarly with property qualifications, it is only by fiat that it can be said, especially in the context of American history, that there can be no rational debate as to their advisability. Most of the early Colonies had them; many of the States have had them during much of their histories; and, whether one agrees or not, arguments have been and still can be made in favor of them. For example, it is certainly a rational argument that payment of some minimal poll tax promotes civic responsibility, weeding out those who do not care enough about public affairs to pay $1.50 or thereabouts a year for the exercise of the franchise. It is also arguable, indeed it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens. Nondiscriminatory and fairly applied literacy tests, upheld by this Court in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, find justification on very similar grounds.

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

Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process. It was not too long ago that Mr. Justice Holmes felt impelled to remind the Court that the Due Process Clause of the Fourteenth Amendment does not enact the laissez-faire theory of society, Lochner v. People of State of New York, 198 U.S. 45, 75-76, 25 S.Ct. 539, 546, 49 L.Ed. 937. The times have changed, and perhaps it is appropriate to observe that neither does the Equal Protection Clause of that Amendment rigidly impose upon America an ideology of unrestrained egalitarianism.

I would affirm the decision of the District Court.