Students Speak: How Voter Identification Laws Create Indirect Poll Taxes: A 24th Amendment Analysis

To celebrate our first 50 years at The Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases.

In 1969, five years before The Colleges of Law opened its doors to provide affordable legal education, the U.S. was trying to eliminate poll taxes to increase voter turnout among low-income residents. The burdensome poll tax required voters to pay a fee, from $1 to $2, before being eligible to vote, creating a class barrier between those who could afford to vote and those who could not.

After ratification of the 24th Amendment, voters had a new avenue to challenge the constitutionality of voting requirements to protect their right to vote regardless of their financial situation. In Harman v. Forssenius, the Supreme Court held a Virginia statute unconstitutional that required the filing of a certificate of residence in lieu of the poll tax. The Supreme Court created a standard for determining whether a law violates the 24th Amendment: “…it need only be shown that it imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax.”

Although the 24^th Amendment was intended to stop direct costs on voting by abolishing the requirement that voters pay a fee to the government in return for the right to vote, indirect costs to vote now pose a problem for low-income, minority, and elderly voters due to voter identification laws.

Lawyers working in voting rights, constitutional law, and public interest litigation engage directly with these questions. The J.D. program at The Colleges of Law prepares students to work in exactly this space, studying constitutional law alongside faculty who are practicing attorneys and judges. For those balancing work and family, the Hybrid J.D. offers the same curriculum while allowing you to study on your own schedule.

What is the Tax Poll Amendment?

The 24th Amendment, ratified on Jan. 23, 1964, abolished the use of poll taxes as a precondition for voting in federal elections. Poll taxes had required voters to pay a fixed fee before casting a ballot, effectively barring low-income and minority voters from participating. Although the amendment was a significant step forward, it only applied to federal elections.

The Voting Rights Act of 1965 then gave the U.S. attorney general authority to challenge poll taxes in state and local elections, and Harper v. Virginia Board of Elections (1966) extended the prohibition to state elections under the Equal Protection Clause.

The poll tax amendment’s protections apply only to direct costs. Whether indirect costs, such as fees to obtain required identification documents, constitute a modern poll tax remains largely unresolved.

Constitutional questions like these are central to what students study in the J.D. and Hybrid J.D. programs at The Colleges of Law. If this area of law interests you, both programs include constitutional law coursework taught by faculty with active legal careers in civil rights and public interest practice.

HAVA’s photo identification requirements place indirect costs on voters

Although this standard set the precedent for overturning poll taxes as unconstitutional, courts have been reluctant to apply Harman when the costs are indirect rather than direct. The decision allowed states to increasingly pass voter identification laws, with the help of the Help America Vote Act (HAVA), that disenfranchise voters.

Passed in 2002, HAVA created photo identification requirements for new voters registering to vote by mail in federal elections, for in-person voting, and voters mailing in their ballots.  However, HAVA did not place limits on states’ voting requirements, allowing states to enact their photo identification laws, which places indirect costs on voters that the 24th Amendment made unconstitutional.

Unlike a poll tax, which is a direct cost to a voter by the government, indirect costs are not paid directly to the government but are required to be eligible to vote. This can come in the form of fees associated with specific identification, obtaining documents for the required identification, or traveling to obtain those documents. These requirements prevent those who are not able to obtain or pay for the required documents from participating in the electoral process and creates a disincentive for voting.

As a result of states creating their own photo identification laws, indirect costs must be paid by citizens before they can utilize their constitutional right to vote, constituting a poll tax.

Can litigation eliminate indirect costs imposed by photo identification requirements?

Citizens have opposed the photo identification laws through litigation, arguing that the requirements constitute a poll tax. However, cases that equate photo identification requirements to a poll tax have been overturned on appeal and courts are reluctant to find that these indirect costs actually disenfranchise voters.

One of the biggest arguments against voter identification laws is that it impacts minority, elderly, and low-income voters when they lack the proper identification requirements making them less likely to vote. Although some states offer free photo identification cards for those who cannot afford one, those states generally require a fee be paid to obtain the necessary documentation to prove the voter’s identity.

In Milwaukee Branch of the NAACP v. Walker, the Wisconsin Supreme Court reversed the trial court’s ruling that the new photo identification requirements did not burden the right to vote because the process of obtaining the proper photo identification was not a substantial burden and “did not increase the usual burdens of voting.”

In this case, the cost to obtain the necessary birth certificate to prove the voter’s identity varied from $14 to $39.50. This cost is unduly high and burdensome for voters who are low-income and cannot afford the fees associated with the required photo identification. These fees harm those citizens’ right to vote by requiring them to pay a fee to obtain a free photo identification card.

Similarly, Georgia voters litigated the constitutionality of a 2005 statute that required all voters to show a government-issued photo identification card before voting. If the voter did not have the correct photo identification, it could be purchased at a cost of $20 to $35. However, Georgia acted quickly and replaced the statute to provide voters with a free photo identification card after swearing under oath that they could not obtain one of the required forms. This prompted the Eleventh Circuit to hold that the new requirements were not an undue burden on the right to vote.

Although Georgia amended the law to accommodate low-income voters, these laws still negatively affect voters because it requires them to travel to a government office, which may be burdensome and may prevent them from obtaining the proper identification to vote.

Crawford V. Marion County: The Controlling Precedent

The major Supreme Court precedent on voter identification requirements is Crawford v. Marion County Election Board (2008), which concerned an Indiana law requiring voter identification for in-person voting. Without a majority opinion, the court upheld the law’s facial constitutionality.

Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, balanced the burden on voters against the state’s interest in preventing fraud and found the burden minimal.

The Crawford Court left open the possibility of a successful challenge if plaintiffs could demonstrate that securing a voter identification card particularly burdened indigent voters and prevented them from voting. That evidentiary gap remains the central obstacle for plaintiffs seeking to characterize voter ID costs as indirect poll taxes.

Understanding how courts balance constitutional rights against government interests is a skill developed throughout the J.D. program at The Colleges of Law, through coursework in constitutional law, litigation, and courses such as Misdemeanor Criminal Practice that place students directly at the intersection of law and community impact.

Courts reject the Harman standard

In Veasey v. Perry, the Fifth Circuit reversed the District Court’s ruling that a photo identification requirement did not constitute a poll tax under the 24th Amendment because it did not meet the Harman standard. The Fifth Circuit rejected the argument that the fee to obtain the required birth certificate needed for the free photo identification card constituted a poll tax because everyone would eventually have to obtain valid photo identification. Voters who do and those who do not have access to transportation are burdened alike by these laws due to the time and expense to travel to the office along with the high costs of obtaining the required identification. Voters who have to take work off, leave work early, or arrive to work late are less likely to find time to vote or make it a priority.

Indirect costs are financial requirements to vote

As states increasingly pass voter identification laws, voters have had to pay the associated costs that new photo identification laws require, as well as traveling to the various government offices to obtain them. Although poll taxes are unconstitutional, courts are reluctant to strike down voter identification laws under the 24th Amendment because they do not see these costs as being indirect costs and an impingement on the right to vote.

But the courts are wrong: Holding that the associated costs are not indirect costs related to voting undermines the 24th Amendment and upholds poll taxes.

About the author:

Stephanie Troup is a 4L at The Colleges of Law. When she is not preparing estate plans, she enjoys going to the beach.

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Studying Voting Rights and Constitutional Law at The Colleges of Law

The constitutional questions surrounding the poll tax amendment, voter identification, and voting access define some of the most consequential litigation in American law today. Lawyers who can navigate this terrain work at civil rights organizations, public defender offices, legislative bodies, and federal agencies.

The J.D. program at The Colleges of Law combines rigorous constitutional law coursework with hands-on experience under the supervision of practicing attorneys and judges. For working professionals, the Hybrid J.D. delivers the same curriculum and faculty access, 70% online, with monthly weekend residencies designed around the demands of a full-time career.

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