Excessive wait times to vote as a form of de-facto poll tax

 

Washington, D.C. Clayton Powell and the New York delegation on their way to protest against poll tax filibuster

A downloadable pdf copy of this essay is available here. 

I'm sure that anyone who took the trouble to seek out this article is already aware that in the months following the 2020 Presidential election, Republican controlled state legislatures across the country began passing a dizzying array of laws designed to limit voter turnout in elections.  The methods employed by these bills to limit access to voting are varied, but there is one theme that recurs in many of these laws: an effort to "weaponize voting lines", by eliminating alternatives to voting on election day such as early voting, absentee ballots and the use of ballot drop boxes.   Extended wait times to vote in majority-minority voting districts has been an on-going issue in former Confederate states such as Georgia for some time.  The situation is most glaring in major American cities such as Atlanta, where although the Atlanta metro area population has increased by almost 2 million poeple since 2010, the number of polling places in the city's greater metro area has been cut by 10%, with majority-Black city neighborhoods seeing the sharpest cuts.  In this article I will enumerate the harms associated with extended wait times for voting, describe how vast disparities in wait times between polling locations within the same metro area constitute a violation of the 14th, 15th and 24th Amendments, and describe a five factor test for determining when there is potential for successful litigation.  

One of the advantages the Republican Party enjoys is that over the years they've managed to build up a substantial political infrastructure of lawyers, political scientists and other conservative thinkers who are experts at framing political arguments.  Conservative legal groups frequently seek out plaintiffs that meet the requirements of their litigation-framework prior to making any legal filings, and no argument is put before a court until a complete strategy for achieving a desired legal ruling has been developed.  No equivalent infrastructure exists for Democrats or the Progressive movement.  Civil Rights groups are frequently so overwhelmed by the avalanche of cases that they face, that there are limited resources for framing any grand litigation strategy.  I'm hopeful that this essay will provide a useful frame that staff of Civil Rights Organizations may employ in the fight against voter suppression.  

Enumeration of Harms 

The harms suffered by extended wait times to vote will vary according to the individual, but includes lost wages from time off work, and costs associated with child and elder care.  We will refer to these costs as "practical costs".  

In economics, the term "opportunity cost", is used in cost accounting to refer to the value of any alternative activity that a person or business may choose to pursue.  The more time and effort that any activity requires, the greater it's opportunity cost.  The issue of disparities in opportunity costs of voting will be addressed more in the section on 14th and 24th Amendment issues.  There is no question that time has value.  We've all heard the phrase, "time is money", contract law employs the phrase "time is of the essence" to denote a contract where timely delivery of goods or services is expected.  Lawyers, and many other professionals, bill for their services by the hour; so there's really no way that any rational person can claim that once you're in line to vote that a key prevailing standard for the measurement and organization of daily activities ceases to apply.  Individuals who spend more time waiting in line to vote obviously face greater logistical challenges and the loss of the ability to pursue other activities during their time in line, and when a political party seeks to create a competitive advantage for themselves by imposing conditions that lead to longer wait times to vote, i.e. they are seeking to maximize the opportunity cost of voting, then they are seeking to impose conditions on residents of minority-majority voting districts that constitute a form of de-facto poll tax.   

Although there is abundant evidence that Black voters in America's cities face longer wait times than their white suburban counterparts, this type of litigation is difficult to bring because of two factors: the fact that some degree of waiting is an inherent part of participation in any public activity, and the highly subjective nature of the phrase "reasonable time", which is considered by many justices to be overly vague, and a term that is best avoided when issuing any ruling.    Use of the phrase "reasonable time" should be avoided entirely in any proceedings to protect or restore voting rights, to avoid allowing a poorly defined term to derail your argument.  A workaround for the issue of "reasonable time" is to cite legislation already passed by states regarding how much time employers must give employees to go vote, and to claim that states oblige themselves to reduce wait times to less than the amount of time off to vote that employers are required to provide to their employees.

That there are practical costs associated with voting is without dispute.  While many states do require employers to provide time off for voting, very few of them require that time off to be paid.  Voters who have children or elderly relatives have to make arrangements to ensure their relatives are cared for while they are in line to vote.  The ideal group of plaintiffs for this kind of case would be a group of individuals capable of documenting substantial practical costs as a result of living in a neighborhood where delays at their local polling place regularly exceed several hours.  In keeping with the requirements of the five part test described later in this article, these individuals should be assigned to a polling precinct where extended voting lines mean that the last person in line to vote frequently doesn't get to cast a ballot until close to, or even after midnight, and that condition has persisted in their voting precinct for multiple election cycles.    

There is no Federal Law requiring employers to provide employees with time off to vote, however many states have passed laws requiring employers to provide that time off.  The state of Georgia requires employers to provide up to two hours of time off to vote on election day.  This presents an obvious problem for residents of majority Black voting precincts where wait times to vote regularly exceed that two hour threshold.  If it can be shown through the discovery process that Republican lawmakers are conspiring to try to create conditions where wait times to vote exceed the two hours of time off that the state requires, then their actions are ultimately an attempt to make sure that white people have time off to vote, but that the amount of time required under state law is insufficient to support voting in majority-Black districts, and may be viewed as an attempt to disenfranchise voters.  Such a conspiracy violates 52 USC § 10101: Voting rights and 18 USC §§ 241: Conspiracy against rights and 242: Deprivation of rights under color of law. The violation of voting rights is due to the fact that failure to provide adequate voting resources due to the majority race in a given precinct violates section two of the Voting Rights Act of 1965.  The conspiracy against rights charge is based in the fact that the actions of Republican lawmakers constitute an effort to limit the right to vote in majority-Black voting precincts based upon the race of the majority population in that voting precinct.  The deprivation charge is that the failure to provide adequate voting infrastructure, and the imposition of increased practical and opportunity costs for voting is a violation of the 25th Amendment Rights of voters.  Relief may be sought by requiring states to either increase the number of available polling places in majority-Black neighborhoods, or increase the availability of alternatives to voting on election day, such as early voting, or the availability of absentee ballots, mail in voting, and ballot drop boxes.  

14th and 24th Amendment Concerns

Although legislators are immune from prosecution for official acts, and discovery can be difficult due to speech and debate clauses being adopted from the Federal Constitution and applied in many states, it is possible for the Federal Government to take action against the states if it can be shown that legislators are conspiring to engage in actions that violate the Voting Rights Act, or to pass legislation which constitutes an insult to Constitutionally protected rights.  Refusing to publicly acknowledge the time cost associated with voting, or seeking to develop legislative strategies that maximize the time-cost of voting for Black voters constitutes an act of unequal treatment before the law, an imposition of a condition on voting dependent upon a person's race, and the imposition of a cost that applies to voting that is not imposed on voters in majority white voting precincts.  

Section 2 of the 14th Amendment states that the right to vote of any American citizen shall not be abridged in any way, except for participation in rebellion, or other crime.  Imposing de-facto poll taxes in the form of disparate practical and opportunity costs for voting should be deemed an abridgement of the right to vote.  It is not the place of judges or economists to engage in speculation as to the value of time for members of a particular racial or ethnic group.  Such projections would also constitute a violation of the 14th Amendment Rights of the group whose time was deemed less valuable, as you would be ascribing values for legal categorization based upon racial and ethnic categorizations.  In this instance, the job of judges and litigants is merely to recognize that practical costs associated with voting are visited upon voters in varying degrees depending upon the wait times in their polling place.  The concept of "opportunity cost" is a term that is accepted in economics and business accounting, and although we must be practical, and accept that some degree of waiting is a typical component of any public activity, when there is evidence of lawmakers from a particular party seeking to maximize the opportunity cost of voting for members of the opposing political party, or members of another race, then that increased cost constitutes a very real form of deprivation.  A pattern of causing residents of majority-Black voting precincts to experience wait times of up to four to six hours, so that in some cases voters who arrive moments before polls close at 7pm in the state of Georgia don't actually get to vote until close to midnight, constitutes an effort to impose greater practical and opportunity costs on minority voters, and therefore such actions should be regarded as a form of poll tax.  

The 15th Amendment states that the right to vote shall not be abridged based upon race.  Once again, a conspiracy to maximize practical and opportunity costs of voting for residents of majority-Black voting districts is an obvious example of an attempt to abridge the right to vote based on race.  States should be obliged to provide the resources necessary to equalize distribution of polling places per unit of population in majority-Black neighborhoods, and failing that they should be required to provide alternatives to in-person voting such as absentee ballots to be delivered by mail or drop-boxes, or early voting options.  

The 24th Amendment states that no American Citizen shall be required to pay a poll tax.  As mentioned above, when legislators from a particular party seek to create a competitive advantage for themselves in elections by imposing disparate costs on voters in the form of increased practical and opportunity costs of voting, then those legislators are guilty of imposing a form of de-facto poll tax on the basis of race.  

A Five Factor Test

The following Five Factor test is intended to provide litigants with a frame for determining when a particular group of plaintiffs are likely to be able to bring a case that will succeed on its merits.  This kind of litigation should not be brought cheaply or in a haphazard fashion.  Given the conservative majority on the Supreme Court, and the large number of conservatives who were appointed to the Federal Judiciary during the Trump Administration, the bringing of poorly fashioned litigation can result not just in lost cases, but in rulings that chip away at existing rights.  The following Five Factor Test represents not only a set of guidelines for selecting a group of litigants who may be successful, but also represents what may be  considered an idealized legal decision for protecting the rights of voters, and preventing the Republican Party from granting themselves a substantial competitive advantage in elections by weaponizing long lines to vote.  Italicized sections represent the text of the test itself, while the non-italicized sections are commentary. 

While nominal wait times are non-justiciable, when there is evidence that a political party is trying to create a competitive advantage for themselves in elections by passing laws intended to minimize voting options, and maximize wait times on election day for members of the opposing political party, then the passage of those laws may be considered a conspiracy against rights, and deprivation of rights under color of law.  The argument that nominal or typical wait times are non-justiciable is critical to maintaining the integrity of this argument. Litigants must make clear that they have realistic expectations, and understand that some amount of waiting is a typical component of participation in any public activity.  Also, litigants must shield themselves from the argument that they may open the door to an army of vexatious pro-se litigants to file nuisance suits claiming the state owes them millions of dollars because they had to wait fifteen minutes at the door to their polling place.  If all five of the following conditions are present for a given group of plaintiffs, then Counsel should proceed with additional interviews to determine whether the plaintiff's case is likely to succeed on merits. 

1. The condition causing the delay must not be due to a passing technical error, so that wait times were substantially reduced later in the same voting day.

2. A pattern of long wait times must have persisted in a given zip-code or polling place over multiple election cycles.

3. It must be possible to show that other zip-codes in the same metro area, where there is a smaller percentage of minority voters have substantially shorter wait times. Again, this factor must be shown to persist across multiple election cycles.

4. There must be evidence that lawmakers are actively seeking to "weaponize the voting line" by limiting access to election day voting alternatives such as absentee ballots or early voting, or that they are developing legislation clearly intended to make time in the voting line less pleasant, such as criminalizing small favors done for voters such as handing out bottled water, or providing access to porta-johns. 

5. Litigants must be able to secure a petition of affiants from the zip-code that the complaint refers to, who will attest by their signatures that they have experienced wait times of two hours or longer, and that those long wait times to vote resulted in either lost wages from time away from work, or in expenses related to child or elder care.

Conclusion

This article was intended to provide a frame for staff of Civil Rights organizations who are seeking to oppose the wave of new voter suppression laws that Republicans have sought to pass since the 2020 Presidential election.  A common factor of many of those laws appears to be an attempt to "weaponize the line", by maximizing the amount of time that Black voters must spend waiting in line at their polling places.  When there is evidence of lawmakers associated with a political party seeking to create an advantage for themselves in elections by maximizing the practical and opportunity costs associated with voting, then those lawmakers efforts may violate the Voting Rights Act, and constitute a conspiray against rights, and deprivation of rights in a manner that violates the 14th, 15th and 24th Amendments.  The Five Factor Test provided at the end of this article is intended to provide Counsel with a means of quickly evaluating whether a voter should be brought in for additional interviews, and considered a potential candidate to become a model plaintiff for Civil rights litigation. 

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This document is provided free of charge under a Creative Commons Attribution ShareAlike 4.0 International (CC BY-SA 4.0) license.  Staff of Civil Rights organizations who are engaged in proceedings to protect voting rights, and who wish to use or adapt any of the arguments presented here are strongly encouraged to do so.  Individuals who wish to cite this document may do so using typical academic citation formats.  Organizations that provide printed copies of this document may charge for printing costs, but may not charge for access to the content itself.