Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for — to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every Negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.
— Virginia Constitutional Convention, 1902
With that as a preamble, Virginia required all voters to pay a poll tax of $1.50. There was an exception: The poll tax did not have to be paid if you had a grandfather who fought on the Confederate side. But as a rule the poll tax applied “uniformly” to everyone.
It was an open secret what the poll tax was really for. Along with the “white primary” and so-called literacy tests, the reason the poll tax existed was to disenfranchise black voters. This has a lot to do with why the Warren Court struck down this “tax” as unconstitutional, a violation of the Equal Protection clause.
As Professor Charles Black wrote, “Segregation came down in apostolic succession from slavery.” Voter ID laws come in apostolic succession from the poll tax. In the words of U.S. Attorney General Eric Holder, voter ID laws are the new poll tax.
Blacks disproportionately lack photo IDs.
As the Rev. Al Sharpton has stated, one likely impact of these laws is that there will be two lines outside of voting places. One line will be for those with the IDs. This line will be somewhat diverse. But there will be another line for people “who want to fill out an affidavit” to enable them to vote. That line, according to the Rev. Sharpton, will be largely black. They will likely be allowed to fill out a ballot and hand it to an official. But their votes will never be counted.
Of course, the biggest effect will not be visible at all. It will be the hundreds of thousands of black voters who simply do not show up because they know they don’t have the photo ID.
Voting is not like going to see an R-rated movie or gaining admission to a night club on South Beach. It is a fundamental right under the Equal Protection clause. A just society would place a barrier in front of this fundamental right only if it were necessary. But it is unnecessary.
Massive voter fraud is not a real problem; it is a cruel myth created by Republican activists for political reasons. As the New York Times reported, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of an organized effort to rig elections by using someone else’s name.”
There have been people prosecuted for voting fraud about 120 out of the tens of millions of votes cast in the last presidential election. And many of those were immigrants who made mistakes out of ignorance, not fraud.
Like a drug war that became a war against the black inner city, the voter ID law uses fear of lawbreaking as a façade. The true target is black voters and the aim is to turn back the clock of civil rights .
Said the New York Times: “It places a veneer of civic responsibility on a low-minded and sleazy political ploy.”
The recent decision by Pennsylvania Judge Robert Simpson upholding voter ID ignores all this. The judge says the new requirements seem reasonable to him. He says in effect that the law applies to everybody, black and white. The poll tax did, too.
Once the Stork invited the Fox to dinner. The Stork gave the Fox a long flask
to drink out of. The Fox couldn’t get a drink. The Fox invited the Stork to diner and gave him a flat plate to eat from. The Stork left hungry. What I would tell Judge Simpson is this: Voter ID laws play games with the concept of equality the same way the Stork and the Fox played games with dinner.
Donald Jones is a professor of Law at the University of Miami, School of Law.
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