In the State of Georgia, voters must pay for postage when submitting mail-in and absentee ballots. Against the backdrop of the contested 2020 presidential election where Georgia was thrust into the national spotlight, a national voter-registration and get-out-the-vote organization named Black Voters Matter Fund (“BVM”) filed a lawsuit in federal court, challenging Georgia’s statutory scheme and alleging the pay-for-postage requirement amounted to an unconstitutional poll tax. Unpersuaded by this “novel theory” of what constitutes a “tax,” the 11th Circuit disagreed and affirmed the district court’s dismissal. (The court also rejected an equal-protection argument.)
In Black Voters Matter Fund v. Secretary of State, the 11th Circuit rejected the argument that postage itself is a “tax.” It based this conclusion not only on its jurisprudence, but also on Black’s Law Dictionary’s definition. The court wrote: “The novel theory that Plaintiffs ask us to adopt—that Georgia imposes a ‘tax’ by not paying for a service (postage) to assist voters who choose to vote through the absentee process and then choose to return their ballot by mail—simply does not hold water.”
What’s particularly interesting is the court’s straightforward application of the definition of the term “tax.” It did not bother with discussing the history of poll taxes or the 24th Amendment’s ratification. And applying just the definition of the term “tax,” the court found no violation of the 24th Amendment. The court also cited to NFIB v. Sebelius in pointing out that, fundamentally, postage is not a tax because voters purchase it from the United States Postal Service—not the government.
But the court didn’t stop there. BVM’s argument failed for other reasons, too, like the existence of alternative means to submit a ballot. Voters are not compelled to mail in their ballots; they can vote in person or physically deliver the ballot. There also appeared to be a standing issue. The court also noted in a footnote that the USPS was not even enforcing the postage requirement on ballots: “[A]s was noted in the district court proceeding, USPS’s policy is to inform its employees to deliver official election mail—including absentee ballots—even if it contains insufficient or no postage.” In other words, the court implied, there is no injury.
As more state legislatures enact “voter integrity” and “election reform” laws, lawsuits challenging various measures will continue to flood the courts. This one may not have been headline-grabbing—the court even noted it found BVM’s position “borderline frivolous”—but it signals just the beginning of like suits. Bottom line: Within the Eleventh Circuit, “incidental costs” to voting—including postage—do not offend the U.S. Constitution.
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