Abolishing the Time Tax on Voting

70 Pages Posted: 24 May 2009 Last revised: 11 Dec 2009

See all articles by Elora Mukherjee

Elora Mukherjee

Emery Celli Brinckerhoff & Abady, LLP; Columbia University - Law School

Date Written: 2009

Abstract

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. Cortés, 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 Cortés, 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.

Keywords: voting, 2008 election, CCES data, lines, equal protection, due process, first amendment, twenty-fourth amendment, voting rights act, facial challenge, as-applied challenge, rights and remedies, Crawford v. Marion County Election Board, NAACP State Conference of Pennsylvania v. Cortes

Suggested Citation

Mukherjee, Elora and Mukherjee, Elora, Abolishing the Time Tax on Voting (2009). Notre Dame Law Review, Vol. 89, No. 1, pp. 177-246, 2009, Available at SSRN: https://ssrn.com/abstract=1409150

Elora Mukherjee (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

Emery Celli Brinckerhoff & Abady, LLP ( email )

75 Rockefeller Plaza
20th Floor
New York, NY 10025
United States
212.763.5000 (Phone)

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