By Samuel Ackerman
In the 1966 case of Harper v. Virginia Board of Elections, the Supreme Court abolished the last vestiges of the Jim Crow-Era poll tax in one fell swoop under the Equal Protection Clause. The opinion emphasized that paying a tax or fee is irrelevant to one’s qualifications for voting and invidiously discriminates against the poor. Litigants have since invoked Harper to challenge poll tax-like policies, called constructive poll taxes. The doctrine surrounding constructive poll taxes, however, remains underdeveloped. This Note seeks to clearly establish what constitutes a constructive poll tax. This Note also responds to the 2021 case of Black Voters Matter Fund v. Secretary of State for Georgia, where the Eleventh Circuit held that requiring voters to pay for postage on mail ballots is not a constructive poll tax. Considering Harper’s philosophical underpinnings, the limited constructive poll tax case law and policy principles, this Note argues that a constructive poll tax exists whenever states require voters to pay a tax or fee unrelated to elections or buy an item or service to cast a ballot. Applying this definition to postage on mail ballots, this Note concludes that postage requirements constitute constructive poll taxes in violation of the Equal Protection Clause. Finally, this Note advocates for strategic litigation and state-level legislation to abolish postage requirements for mail ballots and encourage a sea change in constructive poll tax doctrine.