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The Return of the Poll Tax


The Supreme Court has awakened the poll tax monster, which we thought had been slain in 1964: A poll tax creates illegal aliens out of poor citizens.

MINYANVILLE ORIGINAL One of the great victories of the Civil Rights movement was passage of the 24th amendment to the Constitution in 1964 to prohibit the poll tax. Although poll taxes are manifestly unfair and almost always applied inequitably, the Supreme Court had found them to be constitutional in Breedlove v. Suttles (1937).

Even after the 24th amendment expressly prohibited poll taxes, the Court voted only 6-3 to overturn one in Harper v. Virginia Board of Elections in 1966. I thought that would be the last word on the issue, until Supreme Court decision on Obamacare. Not only did the case find that a poll tax is constitutional, but it actually imposed a poll tax that had not been passed by the House of Representatives-in an apparent violation of Section 7 of the Constitution.

The word "poll" in this context means "head"; a poll tax is also known as a "tax per head" or "capitation tax," that is, a tax in which every person pays the same amount. That makes it a regressive tax; poor people pay a higher fraction of their wealth than rich people do. Poll taxes have been unpopular since ancient times.

The early Christian writer Tertullian denounced them as a "badge of slavery." The Zealot Revolt of the Jews against the Romans in the year 66 was triggered not by religious considerations but by Jewish resentment of the poll tax. The Jews lost and had their tax doubled among other indignities, which led to two further revolts.

Poll taxes inspired the Italian Revolt of 720, which separated Italy from the Eastern Roman Empire, and the English Peasant's Revolt of 1381. They were prominent among the grievances in the English Glorious Revolution of 1689 and the French Revolution of 1789.

A pure poll tax is at least fair in the sense that everyone pays the same amount. The main reason for their unpopularity is the taxes are applied inequitably. Poor people cannot afford them, and are forced in consequence to either hide from the government (effectively becoming illegal aliens in their own countries) or accept a subordinate legal status that exempts them from the tax. Rich and favored people are usually exempted, and in any case find the amount trivial.

Islamic law encourages a poll tax only on non-Moslems. New Zealand imposed poll taxes only on Chinese people until 1944, and Canada did the same until 1923 (at which time it did not rescind the tax but prohibited Chinese immigration entirely).

The best-known poll taxes in the United States, and the ones that were the target of the Civil Rights movement in the 1950s and '60s, were imposed by southern states to prevent poor people from voting. If you didn't pay your poll tax, you couldn't vote. This led to some linguistic confusion, because voting is also known as "polling" (from "counting heads").

When the 24th amendment was written, it only prohibited poll taxes used to prevent voting in federal elections. However, since this was the reason poll taxes had been instituted, poll taxes disappeared from the scene for 46 years until yesterday.

Today these poll taxes are remembered mainly as racially discriminatory. Of course the taxes did have a disparate impact, more blacks than whites were excluded because blacks were poorer than whites on average and whites were more likely to get exemptions. However in many places, poor whites were excluded as well, especially if they were otherwise objectionable. It was proponents of the tax who emphasized the pure racial discrimination. They knew they would get more national sympathy in the 1950s claiming to be racial bigots rather than admitting they wanted to disenfranchise poor whites as well. But whether the tax was aimed primarily at blacks or primarily at unpopular poor people (and there was considerable overlap there, so it can be hard to tell statistically) the one thing that never happened was that the tax was enforced fairly.

In the decision on the Affordable Care Act, the Supreme Court reinterpreted the individual mandate as a poll tax. This is a bad thing, however you feel about Obamacare.

Before I explain why I hate poll taxes, I want to sever the point from health care. Some people think we should have national health care, like Canada and most European countries. Other people want a free market in health care, with the government intervening to the minimum extent necessary to provide care for poor people and help out in natural disasters and with genuine public health issues. What we have is something in between that few people like.

Whichever option we choose should be funded from some combination of voluntary individual payments and government payments from income and payroll taxes. But for political reasons which everyone blames someone else for, getting additional money from either of those legitimate sources was off the table. So a host of unpleasant and unpopular revenue schemes were enacted including stealing money from Medicare, cutting payments to health-care providers (and planning to rescind the cuts later), imposing penalty fees on high-cost insurance plans, enacting taxes on elective medical services and, most unpopular of all, mandating minimum individual insurance purchases and fining violators $695. Nobody likes any these things, they're just consequences of our messy political system.

My point is when the Supreme Court recast the individual mandate as a poll tax so it could allow Obamacare to go forward, it did a bad thing. The trouble with the individual mandate is the federal government has no power to force citizens to buy health insurance. But if it did have that power, there would be no question that it could impose penalties on people who disobeyed. It's the reverse situation with a poll tax.

There is no question that the House of Representatives can pass a tax and the federal government can use the money to pay for health care. But it should be unconstitutional to make that tax a poll tax. Only an unfortunately narrow drafting of the 24th amendment allows it.

To understand the difference between a penalty for disobeying a mandate and a tax, consider the other common insurance mandate: Most states require people who own and drive cars to purchase liability insurance. This mandate is less controversial than the Obamacare version because:
  • It is imposed by state governments, which are not as constrained as the federal government by the Constitution. Moreover, if you don't like the car insurance mandate, you can move to New Hampshire, which does not have one ("Live Free or Die").
  • It is imposed only on automobile owners and drivers. You don't have to pay it just for existing.
  • The insurance benefits are paid to people you injure. You are not required to protect yourself, only others.
Suppose states decided to switch the car insurance mandate penalty to a poll tax. Everyone would have to file an annual statement, probably as part of the income tax form if the state has one and the person has to file. The statement would provide proof either that the person didn't own and drive a car, or was exempt from the mandate for some reason, or had qualifying liability insurance-or else the statement would have to be accompanied by a check for the poll tax.

For the people who don't have cars or have insurance or qualify for exemptions or pay the tax/penalty, it makes no difference whether we have a mandate/penalty system or a poll tax system. But a substantial number of drivers, estimates vary from 15-30%, are none of the above. Under the mandate system, these people drop off the automobile grid. They generally cannot register their cars, and they often cannot get driver's licenses (or they lose both when caught driving without insurance). That's a harm that the state has to balance against the benefits of the insurance requirement.

Under the poll tax system the scofflaws have to drop off the entire citizenship grid. Either they don't file the annual statement, or they file a false one, or they file a true one and don't pay. They do not have to avoid just the DMV and traffic police, they have to avoid all government agencies. They cannot register to vote, serve on a jury, collect benefits, buy real property-they cannot do anything that gets their name on a government list.

The government is looking for a person under a poll tax system, not a car as under the mandate system. When a person is caught under a poll tax system, he is liable for all back taxes, instead of being fined for a single offense as under the mandate system. A poll-tax evader is at risk at all times and places, a mandate breaker is only at risk when driving a car she owns. A poll tax, as I said above, creates illegal aliens out of poor citizens.

Of course, we all know that neither poll tax nor mandate penalty will ever be collected beyond a few token enforcements. The Internal Revenue Service is charged with collecting it, and the required processing is on the order of the cost to collect personal income taxes. Congress will never fund this effort. It will not be cost-effective for an IRS auditor to go through hundreds of tax returns to find one $695 cheat. On top of that, Obamacare forbids any criminal penalties or liens to collect the penalty/tax, so all the auditor can do is ask politely for the money.

Even with lax enforcement, however, the poll tax will induce some people to give up privacy rights to prove exemptions like poverty and religious belief to auditors, and induce other people to file fraudulent returns or drop off the citizenship grid. The less the enforcement, the more people will evade payment, both because it's easy and because they would feel stupid paying a poll tax when everyone else is cheating. This is deeply corrosive to social capital. If the government reacts by stepping up enforcement efforts, it just makes things worse.

Thousands of years of history prove that poll taxes are always a bad idea. Taxing people for living, as opposed to taking a slice of their income or property or something else, means the government has to chase its citizens, instead of their money. Consequently citizens hide themselves, not just their money, from their governments. This is usually the purpose of poll taxes, and it is always the effect.
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