43 States Have a Polltax--Part 1

11:21:43 AM EDT

43 States Have a Polltax

Main Memorandum, Part 1

PREFACE

Many states use voter lists to choose people to serve jury duty. This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case.  It coerces some voters, burdens some voters more than other voters,

A. A Suggested Procedure

A complaint could be filed in the United States District Court on behalf of a voter who has been, or may be, called for jury duty by an appropriate state or local agency [henceforth “State”] demanding a declaratory judgment that the citizen’s selection is void.  The rational for the demand is that the jury pool is fairer, the more sources, including voter lists, are used and as long as duplications are eliminated the only voters burdened by jury duty are those who are on none of the other sources.  In states where other lists are possible for selection, the complaint should be conditioned, saying the citizen’s selection is void unless the State proves to the court that selection for jury duty was from a source other than voter registration rolls.

B. The State Procedure is Prima Facie Illegal

<PCLASS=MSOBODYTEXT style="MARGIN: 0in 0in 0pt">B. Three separate points of law, supported by decisions of theSupreme Court, independently indicate that, facially, the State practice, which discourages people from voting by selecting people for jury duty if they vote, is illegal.  If it does not discourage people from voting it penalizes them (in the sense penalize is used in Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972)) for voting and is therefore void.

B1.   States may not interfere in federal elections without specific congressional authorization.  Article I, Section 4 of the Constitution empowers Congress to impose limits on the states as to setting voter standards for federal elections, according to Oregon v. Mitchell, 400 U.S. 112 (1970). Nothing in the Constitution authorizes state officials to interfere with the voting of those who qualify. In Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) (concerning interstate commerce) the Court said the mere existence of the congressional power in a field denies the states the power to interfere in that field without specific congressional authorization, saying at page 767 “This . . . is predicated upon the implication of the commerce clause itself . . . or . . . the presumed intention of Congress, where Congress has not spoken. . . .”  (Congress has legislated on the subject, to restrict, not authorize, states’ power to impede citizens’ voting rights, but in a setting that is primarily one of equal protection, as is noted in the next section of this text.)  Similarly, the courts should rule that the jury duty practice is illegal because it substantially impedes voting in federal elections. Voting in federal elections may keep citizens on the voters’ registration lists whether or not they vote in state and local elections.  (See New York’s Election Law § 5-400.)  Typical laws on jury duty selection do not distinguish between those who vote in federal elections and those who vote in state elections.  See Appendix 1a. (Appendices are at http://journals.aol.com/jdmar55/ptap)  I contend, also, that many more people serve state jury duty than federal while more people go to the polls because of federal elections than for other elections.  Under the rule of Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274 (1972), supra, a state law is unconstitutional if it penalizes (the word is used broadly in that

decision) someone for exercising a right even if it does not deter exercising it.

B2.   The constitution’s equal protection clause forbids discrimination against the poor in voting.  In Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the Court held that payment of a $1.50 tax could not be a precondition for voting in a state election. The Court said:  “We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”  At page 668 it said “[a citizen’s right to vote is] the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.” Blue collar workers and poorer workers are more likely to suffer economically from jury duty and would therefore be more likely not to vote. Therefore, subjecting voters to the possibility of loss of their regular wages creates no less an invidious distinction based on wealth than does a $1.50 poll tax. The principle of protection for the poor was expanded in M.L.B. v. S.L.J., 117 S. Ct. 555 (1996).  Furthermore, the Court in Reynolds v. Sims, 377 U.S. 533 (1964), stated that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, ECONOMIC STATUS, or place of residence within a State.” (Emphasis added.)  There are absolute rights and situational rights.  There are no absolute rights not to serve jury duty, even if it is a great hardship. Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946).  But you may not have that hardship imposed on you more than on others, either because you criticize the political or judicial system or because you vote.  See M.L.B. v. S.L.J., 117 S. Ct. 555 (1996), supra, as to a state’s obligation to have a system of appeals.

To help enforce the anti-discrimination parts of the Civil War Amendments Congress enacted 42 U.S.C. § 1973i, subsection (b). It provides “No person, whether acting under color of law or otherwise, shall intimidate, threaten or coerce . . . any person for voting . . . .”  (§ 1973i follows  § 1973 and is not part of it.) This makes it illegal for a state official to use voter registration rolls as a source of names for jury duty, (with the possible exception of it using the Texas statutory practice) for if the voter called by the State relies on income from a daytime job and that income stops, this economic hardship constitutes “coercion”. In addition, some workers have no job security, so they may fear they will find their job given permanently to their replacement when they finish jury duty. (Any state law that attempts to prevent such discharge is likely to be ineffective if it does not require employers who violate the law to pay attorneys’ fees of successful plaintiffs.) This situation certainly discourages some people from voting. It follows from this that federal statutory law makes it illegal for a State official to use voter registration rolls as a source of names for jury duty (with the possible exception of it using the Texas statutory practice). See Jackson v. Riddell, 476 F. Supp. 849 (N.D. Miss. 1979) and Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), in different contexts, for cases that broadly interpret the statute.

B3.   Does the twenty-fourth amendment to the United States Constitution forbid the State practice?  I maintain it does.  (This is a gut reaction based on the interpretation of “tax.”  I can see my contention being thrown out, out of hand.  However, it is another string to the bow.)  It bars the abridgment of any citizen’s right to vote in federal elections by any state by reason of failure to pay any poll tax or other tax. “The American College Dictionary”, published by Random House in 1956, gives as the first two definitions of “tax” “a payment of money or performance of services for the use of the government or the benefit of the public” and “a burdensome charge, obligation, duty, or demand.” “The Handy American Dictionary”, published by Random House in 1999, gives as the second and fourth definitions of “tax” “burdensome duty” and “burden.”  In constitutional

construction we must not give words their narrowest possible construction. Gibbons v. Ogden, 9 Wheat. 1 (U.S. S. Ct. 1824). Therefore, the State practice is barred by this Amendment. The Supreme Court said “Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban.” Harman v. Forssenius, 380 U.S. 528, 542 (1965) and cases cited therein for that principle.  See also Gray v. Johnson, 234 Fed. Supp. 743 (S.D. Miss. 1964).

Part 2 follows below, in another journal.

Written by jdmar55 Permalink | Blog about this entry |  Add to del.icio.us |  digg this This entry has 0 comments: Add your own