Abolishing the time tax on voting.

Author:Mukherjee, Elora

A "time tax" is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a case study NAACP State Conference of Pennsylvania v. Cortes, the first-ever case in which a court has granted prospective relief to plaintiffs who sought to reduce wait times at the polls, as well as the first successful voter access case since the Supreme Court discouraged facial challenges to state voting restrictions in Crawford v. Marion County Election Board. Drawing on the litigation strategy in Cortes, the Article canvasses the available constitutional and statutory avenues for a legal challenge to the time tax and identifies conditions for relief to be granted. Those conditions include exhausting the political process, targeting a momentous election and choosing appropriate plaintiffs, using primary election experiences and expert testimony to develop an adequate evidentiary record, and seeking narrow and politically neutral relief. The Article concludes by suggesting policies that can be implemented at the state and federal levels to mitigate the time tax.

INTRODUCTION I. THE TIME TAX IN PENNSYLVANIA A. Unsuccessful Lobbying Efforts B. The Court Battle C. Lowering Pennsylvania's Time Tax II. THE TIME TAX NATIONWIDE A. Its Scope B. Reasons for Concern III. CHALLENGING TIME TIME TAX A. Equal Protection Clause B. Due Process Clause C. First Amendment D. Twenty-Fourth Amendment E. Section 2 of the Voting Rights Act F. Section 5 of the Voting Rights Act IV. MODEL FOR VOTER ACCESS LITIGATION A. Exhausting the Political Process B. Momentous Elections C. Pre-Election Litigation D. Facial Challenges After Crawford E. Narrow and Politically Neutral Remedies V. BEYOND THE COURTS CONCLUSION INTRODUCTION

On April 22, 2008, Richard Brown, a resident of North Philadelphia, arrived at his polling place to cast his ballot in the primary election. He arrived even before the polls opened and joined a line of eager voters. But when the polls opened at 7:00 a.m., both machines at his precinct were broken. No one could vote. The line of voters first grew longer and then shorter as voters left without casting their ballots. After 9:00 a.m., Brown and remaining voters finally cast their ballots on a repaired voting machine. Others did not have time to spare that morning. From 7:00 a.m. to 8:45 a.m., approximately seventy-five to one hundred voters left the precinct without casting a ballot. (1)

Did Brown and other voters at his precinct have a constitutional right to vote without having to wait an inordinately long period of time? If so, could they enforce that right before the election in which they sought to vote? State and local officials in Pennsylvania said no. When questioned by a reporter about the likelihood of many voters leaving the polls because of long lines in the 2008 general election, Fred Voight, the Deputy Election Commissioner of Philadelphia, responded: "Are there lines? Of course there are. Tough. That's the way it works.... People are always going to have to wait in line. I mean, get a life." (2)

It is hardly surprising that Voight and other government officials could not fathom that long lines at the polls could violate a voter's constitutional rights. (3) Waits at the polls have long been considered "garden variety election irregularities" (4) that are par for the course in every election. (5) Prior to the 2008 election, no federal court had ever held that a state policy that would contribute to long lines at the polls in an upcoming election violated a voter's constitutional rights. That changed when NAACP State Conference of Pennsylvania v. Cortes (6) was decided days before the 2008 election.

In October 2008, Brown--together with other voters, the NAACP State Conference of Pennsylvania, and the Election Law Network--headed to federal court. They sought statewide preliminary injunctive relief requiring poll workers to distribute emergency paper ballots to voters when half or more of the electronic voting machines in a precinct became inoperable on Election Day. They argued that such relief would prevent many voters from being turned away from the polls by long lines. Chief Judge Harvey Bartle III of the Eastern District of Pennsylvania granted the relief. (7) He found that the potential injury to the plaintiffs and other voters throughout the Common wealth would, if it occurred, violate the Equal Protection Clause. (8) To prevent such a violation, the court ordered the Commonwealth to implement the plaintiffs' proposal.

Cortes is a landmark voting fights case. It is the first to recognize that the prospect of long lines at the polls may constitute a "time tax" (9) and that state policies that impose such lines can cause an injury of constitutional magnitude. Like the poll tax, the time tax burdens a citizen's fundamental right to vote. It is a government policy or practice that forces one citizen to pay more in time to vote compared with her neighbor across town, across the state, across state lines, or even across the street.

The time tax may result from statewide election policy--which the plaintiffs challenged in Cortes--or from problematic election infrastructure, such as insufficient numbers of polling locations, voting machines, and poll workers to efficiently accommodate all those who seek to vote. (10) Whatever the cause, the effect is long lines that severely burden the right to vote. Those who cannot afford to wait--say, because of work obligations, family responsibilities, or health constraints that do not pause for Election Day--are denied the right to vote.

Until very recently, data on the time tax were simply unavailable, and so very few noticed its disenfranchising effects. In the 2008 election, more than ten million voters had to wait longer than an hour to vote and hundreds of thousands had to wait longer than five hours. (11) Hundreds of thousands more left the polls without casting a ballot because lines were too long. Hundreds of thousands of others were so discouraged by long lines that they did not show up at the polls at all.

Comprehensive data, available in 2008 for the first time, reveals that the time tax falls disproportionately on particular segments of the U.S. electorate. In 2008, blacks bore the brunt of the time tax burden, as did Latinos to a lesser extent. While only 5% of whites nationwide waited longer than an hour to vote in 2008, 15% of blacks and 8% of Hispanics waited that long. (12) In the South, wait times were longer than elsewhere in the country. (13) There, approximately 8% of white voters, 19% of blacks, and 14.5% of Hispanics waited longer than an hour to cast a ballot. (14)

Polling data suggest that it does not take an unusually long wait to severely burden the right to vote. If all registered voters in the United States were required to wait just sixty minutes to vote on Election Day, that wait time alone might turn away more than 40% of registered voters. (15) A generation ago, both political action and litigation were needed to abolish poll taxes. This Article is a primer on how to do the same to the equally intolerable tax on voters' time.

Part I examines Cortes as a case study of successful voter access litigation that reduced the time tax. It reviews the political backdrop of the case, the court battle that ensued, and why the victory matters. In doing so, particular attention is paid to how plaintiffs created an evidentiary record in support of their facial challenge to Pennsylvania's election policy. This exercise is necessary in the wake of the Supreme Court's recent decision in Crawford v. Marion County Election Board, (16) where the Court rejected a facial challenge to Indiana's voter identification law on the ground that the plaintiffs had failed to demonstrate "how common" disenfranchisement was as a result of the law. (17) Post-Crawford, those pursuing a facial challenge to a state election policy bear a particularly high evidentiary burden. Thus far, the only federal constitutional case in which plaintiffs seeking to guarantee access to the franchise have surmounted that burden is Cortes. (18)

Part II places the time tax in national and historical context. Little was known about the time tax until very recently. I first review the available data on its burdens, and then suggest three reasons why policymakers, judges, litigators, academics, and voters should be concerned about the time tax. The first is pragmatic: assuming a nonrandom distribution of wait times, votes lost due to the time tax can decide close elections. The second focuses on electoral access: no votes should be lost due to an administrative hurdle like long waits. The third and arguably the most pressing concern relates to equality: the time tax appears to disproportionately burden racial minorities and those in certain regions of the country.

Part III explores six doctrinal bases for challenging a time tax: the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the First Amendment, the Twenty-Fourth Amendment, and Sections 2 and 5 of the Voting Rights Act. (19) Although litigation challenging the time tax has been successful on only Equal Protection grounds to date, the other grounds are virtually untested and ripe for litigation in this emerging area of law.

Part IV offers a model for voter access litigation. It suggests five conditions for judicial relief to be granted: exhausting the political process, a momentous pending election, seeking pre- rather than...

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