Equal Protection

3 posts

An Assault on the Fundamental Right to Parenthood and Birthright Citizenship: An Equal Protection Analysis of the Recent Ban of the Matrícula Consular in Texas’ Birth Certificate Application Policy

By Cathy Liu

Recent changes in Texas’s birth certificate application policy have made it nearly impossible for hundreds — and perhaps thousand — of undocumented immigrants to obtain birth certificates for their U.S.-born children. The Texas Department of State Health Services (DSHS) has implemented a policy banning state registrars from accepting the matrícula consular (matrícula) as an identifying document applicants may present as part of the state’s birth certificate application process. Matrículas are consular identification cards issued by Mexican consulates to citizens of Mexico living outside of the country. They are widely-accepted as a reliable form of identification and are often the only identification available to undocumented immigrants. Without alternative forms of ID, undocumented parents cannot satisfy the policy’s identification verification procedure and consequently cannot obtain birth certificates for their children.

Undocumented parents lacking birth certificates for their children cannot fully access their fundamental right to parenthood, which includes the right to make decisions on how best to raise and care for their children. Enrolling a child in schools and daycare and obtaining public benefits like Medicaid and Section 8 housing assistance all require presentation of that child’s birth certificate. In addition, although the children affected by the changes are citizens by virtue of being born in the U.S., they cannot fully exercise their rights as citizens, including the right to travel interstate, to receive a public education as well as the right to work. Furthermore, the policy may, in some instances, have the effect of denaturalizing U.S.-born children, thereby depriving them of their statuses as U.S.–citizens.

This Note provides an Equal Protection analysis of Section 181, the provision of the Texas Administrative Code that codifies this new policy. Part I explains the recent changes in Texas’ birth certificate application procedures. Part II provides an overview of the Equal Protection Clause. Parts III through V argue that the new Texas policy violates the Equal Protection Clause. This Note first argues that strict scrutiny is the appropriate standard of review in analyzing the constitutionality of the policy. It then argues that the policy fails to survive strict scrutiny review because it fails to further a compelling state interest, is underinclusive in its attempt to prevent fraud, and because less discriminatory alternatives can as effectively deter identity crimes and fraud.

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“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.

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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.

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