Volume 55, Issue 2

4 posts

“Stamping” Out the Postage Poll Tax

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.

Download Article

“Unpacking” the Problem: The Need to Broaden the Scope of Vote Dilution Claims Under Section 2 of the VRA

By Paul A. Riley, Jr.

There are two common types of gerrymandering: “cracking”— splitting a cohesive voting bloc across districts, and “packing”—over-consolidating a cohesive voting bloc into a single district. These types of gerrymandering can be partisan, but they can also be along racial lines. As this Note demonstrates, Section 2 of the Voting Rights Act (VRA) has a remedy for cracking, but not for packing.

Through statistical analyses, this Note demonstrates the statistically significant relationship between race and the Cook Political Report’s “Partisan Voting Index,” as well as between race and voter turnout in the 2020 general and 2018 midterm elections. In particular, the statistical analyses reveal how race and PVI can serve as the pillars of a novel, three-factor test that would make vote-packing claims cognizable under Section 2 of the VRA. Finally, this Note proposes a framework that would broaden the definition of “vote dilution” under Section 2 of the VRA and would provide a remedy for minority voters who are packed into districts.

Download Article

Beyond Discriminatory Intent: Agriculture, Labor Rights, and the Shortcomings of Equal Protection Doctrine

By Mary Otoo

The National Labor Relations Act provides labor protections for millions of workers. The existing exemption for agricultural workers, however, leaves a crucial category of workers vulnerable because they lack federal protection to form unions and collectively bargain with their employers. Implemented in 1935, the exemption created a severe disparate impact for farm workers, most of whom are Latinx. This lack of labor rights robs agricultural workers of important tools to increase wages and improve working conditions and benefits.

In the past, plaintiffs have attempted to challenge the exemption on equal protection grounds, but these challenges have failed—in large part because there is no direct evidence of Congress’ intent to discriminate against Latinx workers, despite the exemption’s disproportionate harm. This Note presents a theoretical framework for assessing equal protection claims challenging laws that have a prolonged and severe disparate impact, a framework which, unlike current equal protection doctrine, does not require plaintiffs prove discriminatory intent. The intention in creating this new framework is to make it easier for plaintiffs to challenge longstanding laws that continue to have a harmful disparate impact on minorities, even in cases where it is difficult or impossible to prove that Congress harbored discriminatory intent when it passed the law. This Note explains the elements of the theoretical framework and applies it to the NLRA agricultural exemption.

Download Article

Expanding Employee Ownership in America: A Proposal for a National Equity Compensation Mandate

By Tyler Ross

Individual and household wealth is most often derived from three sources: real property, human capital, and productive capital. The modern economy has developed financial tools, such as mortgages and student loans, to help individuals accrue real property and human capital, but there is no meaningful way for the working class to accrue ownership of productive capital. And, so long as the growth rate of capital exceeds the growth rate of wages, wealth inequality in the United States and elsewhere will continue to grow. This Note explores existing methods to extend capital ownership to the working class, such as Employee Stock Ownership Plans, and proposes a federal, national, mandatory equity minimum wage as an effective solution to three problems in our modern economy. Specifically, (i) employees do not benefit when the companies for which they work are tremendously profitable and provide outsized returns to investors; (ii) wealth inequality is worsening and will continue to do so; and (iii) there is a savings deficit among nearly one-half of American households. This Note explains how a mandatory equity minimum wage will help ameliorate these three problems by meaningfully extending ownership of productive capital to the working class.

Download Article