before the House Committee on Elections, Ethics and Rules

May 27, 2009

I earlier testified in favor of HB 3240. I suggested that it be expanded so that the "postage due" on any ballot arriving at an elections office be paid for by the State as part of the vote-by-mail system. I now suggest that it be further expanded so that the State pays all of the postage on all ballots.

Legal research shows that Oregon's vote-by-mail system is vulnerable to challenge as not complying with the U.S. Constitution. The United States Supreme Court cases striking down state poll taxes as unconstitutional involved poll taxes equal to $1.50 per voter, which is not appreciably different from Oregon's effective poll tax of 44 cents or 61 cents, depending on the weight of the ballots in the return envelope. As the Court stated in Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966):

• We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. . . .
• We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen's vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.

Note the stringent standard: A voter cannot be required to pay any tax or fee whatsoever in order to vote. The State cannot discriminate against a voter, even if he has "nothing at all" in his pocket.