[Note to readers: My new Verdict column, "Economic Theory Shows that People Will Make Choices that Worsen the Pandemic," was published this morning. Typically, we at Dorf on Law pair a follow-on column here to expand on some aspects of our Verdict columns. I plan to do that next Tuesday rather than today, however, because I want to discuss an important case that is pending in the 11th Circuit. As I will describe below, I have now co-signed an amicus brief in that case.]
When is a tax not a tax? According to a new amicus breif that twelve other tax law professors and I co-signed this week, the constitutional prohibition on imposing a "poll tax or other tax" most definitely applies to taxes that are given a different label (fees, fines, and so on). Drafted by some excellent lawyers at Debevoise and Plimpton, the brief argues that anything that functions as a tax -- an obligation to pay the state that carries the force of law -- cannot be used to deny any American the right to vote.
That is the bottom line. How we get there matters, of course, in particular by making it clear that intent -- even the intent to collect money for public purposes -- is not what makes a tax a tax. Without a broad definition of taxes for constitutional purposes, motivated legislators could choose to take away voting rights even -- or, as strange as it may seem, especially -- if they did so by admitting that they were imposing financial obligations for explicitly anti-voting purposes.
There is a lot to discuss here, and to understand what is at stake, we need to go back a couple of years.
Perhaps the most surprising electoral result in 2018 was not any of the upsets in governors races or for U.S. Senate seats, or even the flipping of the House of Representatives to Democratic control. Those were all big stories, of course, but they were also all somewhat expected or at least within the realm of plausibility. What I found most surprising was that the voters of my now-home state of Florida overwhelmingly approved Amendment 4, with 64.55 percent support.
What is Amendment 4? That ballot initiative changed the state constitution to end the longstanding state policy of disenfranchising Floridians with felony convictions even after they had served their sentences. Under the initiative, which explicitly excluded those convicted of murder or sexual offenses, voting rights of ex-felons are to be restored after they complete all terms of their sentences, including parole or probation. At the time, Florida alone accounted for 1.7 million of the 6.1 million people nationwide who were denied the vote even after completing punishment for their crimes.
Why was the passage of Amendment 4 so surprising? First, ex-felons are not exactly a sympathetic group in the public's mind. If anything, I would have expected the vote to be a landslide in the other direction, because it is very easy to imagine even many centrist or left-leaning voters saying, "Why should criminals be allowed to vote?" Second, because Florida is such a partisan battleground, I could not imagine that the roughly 50 percent of the state that votes Republican would agree to re-enfranchise a disproportionately nonwhite group of people (a group that also, probabilistically speaking, is much more likely to vote for Democrats).
Even though large numbers of the state's Republican voters participated in this 65-35 blowout, however, the state's Republican politicians understood the threat that this poses to their continued electoral viability. Both the U.S. Senate and governor's races in 2018 were nail-biters, for example. Even if their rank-and-file voters did not see the meaning of Amendment 4 (or ignored it, perhaps because they are not pure partisans), the officeholders certainly did.
Their response? The legislature quickly passed, and the barely-elected new governor happily signed, a law that defied the will of almost two-thirds of the state's electorate -- a law that effectively imposes a tax in violation of the 24th Amendment to the United States Constitution. As a tax law professor, but more importantly as an American, I find this unacceptable.
Fortunately, this law has already been tested at trial, and a U.S. District Court has issued an Opinion on the Merits and ruling on the matter in Jones v. Florida, finding that the Republicans’ gambit is unconstitutional. As Judge Robert L. Hinkle explains, there are two key provisions of the law that Florida's Republicans passed (known as SB7066):
First, SB7066 explicitly defines the language in Amendment 4, “completion of all terms of sentence including probation or parole,” to mean not just any term in prison or under supervision but also financial obligations included in the sentence—that is, “contained in the four corners of the sentencing document.” This does not include amounts “that accrue after the date the obligation is ordered as a part of the sentence.”Second, SB7066 explicitly provides that a financial obligation still counts as part of the sentence—still must be paid for the person to be eligible to vote—if the sentencing court converts it to a civil lien. Conversion to a civil lien, usually at the time of sentencing, is a longstanding Florida procedure that courts often use for obligations a criminal defendant cannot afford to pay. Conversion takes the obligation out of the criminal-justice system and leaves the obligation enforceable only through the civil-justice system.The financial obligations included in a sentence may include fines, fees, costs, and restitution.(citations and footnote omitted)
In short, Florida's Republican officeholders said that serving all prison time, parole, and probation does not mean that a person is an ex-felon for Amendment 4 purposes, because a variety of financial payments must also be paid. Judge Hinkle's Opinion on the Merits begins with this depressing description of what Florida's Republicans have done:
The State of Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money. Most of the citizens lack the financial resources to make the required payment. Many do not know, and some will not be able to find out, how much they must pay. For most, the required payment will consist only of charges the State imposed to fund government operations—taxes in substance though not in name.
The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote. In the meantime, year after year, federal and state elections will pass. The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.This means that the post-Amendment 4 environment is so bad that for almost one million Floridians nothing has changed from their pre-Amendment 4 status, except that they know that their fellow citizens trust them to vote even as their representatives are desperately trying to keep them from participating in American democracy.
Judge Hinkle correctly concludes that the imposition of financial barriers to voting in Florida violates the 24th Amendment, Section 1 of which provides: "The right of citizens of the United States to vote ... shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax." The legal question, then, is whether that language -- "poll tax or other tax" -- prohibits things not called taxes. Does that question sound familiar?
In the first major Supreme Court challenge to the Affordable Care Act, NFIB v. Sebelius, nearly all of the commentary in advance of the Court's decision concerned the Commerce Clause and the absurd "broccoli example" (the parade of horribles in which the government, if it could penalize people for not having health insurance, could supposedly force them to eat broccoli ). Even so, Chief Justice Roberts surprised everyone by upholding the law under the Taxing Clause, saying that the penalty for not buying health insurance was effectively a tax for constitutional purposes. Why? Because no matter what one calls it, the requirement by the government to pay for the choice not to buy health insurance acts in exactly the same way that a tax does. It is, in short, a functional definition of taxes that controls, not the words chosen.
The felon disenfranchisement case, Jones v. Florida, is an even better poster child for a functional approach. The 24th Amendment, unlike the Taxing Clause's list of "Taxes, Duties, Imposts, and Excises," describes an even broader concept -- a prohibition on a "poll tax or other tax." Even under the common notion that poll taxes are amounts explicitly required in order to vote (a definition that our amicus brief explains is inaccurate, because poll taxes are taxes on people, as in Britain, not on voting), SB7066 is easily understood as a violation of the terms of the 24th Amendment.
And noting the open-ended "other tax" in the constitutional text makes it unnecessary to argue that Florida's new fee regime is technically a poll tax, because it is certainly some kind of "other tax." The amicus brief lays out the history of the 24th Amendment, pointedly noting that a key player in its adoption was Florida's own Senator Spessard Holland. We also quote former Florida congressman Dante Fascell: "[T]he payment of money, whether directly or indirectly, whether in a small amount or in a large amount, should never be permitted to reign as a criterion of democracy. There should not be allowed a scintilla of this in our free society."
As an economist, but especially as a tax law professor, the functional definition of a tax has always made sense to me. Substance should dominate form, because otherwise people can play games with labels. And that brings me back to my point above about how defining the word "tax" can be a trap. Judge Hinkle quotes precedents to the effect that taxes are taxes because they are used to raise revenue for the government, and our brief accordingly states: "For the Twenty-Fourth Amendment, this functional approach involves an examination of whether raising revenue is one of the purposes of the financial obligation at issue."
The brief then demonstrates that Florida has, indeed, made clear that the types of financial payments challenged in Jones are to be used to fund government activities. Even so, the final version of the brief appropriately steered away from the idea that revenue collection is the sine qua non of taxation. Why would it have been problematic to tie the definition of "tax" to revenue collection?
Consider what are sometimes called "sin taxes," that is, taxes on the consumption of alcohol, smoking cigarettes, and so on. Because those activities are popular (and in many cases addictive), governments know that they will collect revenue by imposing those taxes. Even so, it would be completely legitimate for a legislature to impose such a tax with the explicit purpose of inducing people to stop harming themselves, which means that the legislature's genuine desire when imposing the tax is to collect no revenue at all. Collecting zero dollars, short of concerns about corruption or poor collection practices, would be a sign of success, not failure. But the tax would still be a tax.
Now consider a less publicly spirited legislature. If the definition for 24th Amendment purposes of a tax was "money collected at least in part to raise revenue," a state legislature could simply impose a fee on voting and say, "Hey, we didn't do this to collect revenue. We did it to stop people from voting; and if we succeed in our scheme, we will consider it a great success if none of the targeted people actually vote, even though that means that we collect no revenue."
In short, it matters that we use a functional, all-things-considered definition of tax for constitutional purposes. Taxes are both regulatory and fiscal (as well as symbolic). If we want the 24th Amendment to continue to have teeth, we have to be able to invalidate indirect -- but sadly effective -- attempts to erode American democracy.
Postscript: The 11th Circuit has taken the rare step of hearing this case en banc without first assigning it to a panel. Six of the twelve active judges on the 11th are Trump appointees (thanks to Mitch McConnell), and the chief judge is a George W. Bush appointee. If the en banc vote were to end up tied 6-6, the District Court's ruling would stand. However, the 11th Circuit stayed Judge Hinkle's injunction pending appeal, so the timing of all of this suggests -- especially considering that this will almost certainly end up in the Supreme Court -- that the Florida Republican Party will succeed in frustrating the will of the state's voters by keeping one million eligible Floridians from joining their ranks this November.