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Are government fees, like the one for getting a passport or a drivers licence, considered taxes from a constitutional perspective? To clarify I am not asking for income tax purposes. I suppose it might depend on the service, like the difference between the gas tax and a toll; or the rights to the service, but most fees seem to "look like a tax, and quack like a tax".

The reason I ask is that the Twenty-Fourth Amendment states:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

but, with the new movement by some states to require voters to have identification to vote, and the fact that no state I know of provides free government issued ID (unless you are an employee) it seems that unless a state provided its residents with free access to state-issued ID, that requiring people to go pay for ID's needed to vote would be contrary to the Twenty-Fourth Amendment.

  • Driving (re: the need for a driver's license) and international travel (passport) are not rights; they are privileges, and the cost of such documents reflect the cost of the government to issue them. Many states provide free basic IDs for voting and other civic functions such as ID for state residency for basic govt. functions such as law enforcement. Is your question really about voter ID laws? – BlueDogRanch Sep 4 '18 at 14:44
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    @BlueDogRanch can you name a state that provides free basic ID for voting or another civic function? I've lived in 6 states and the District of Columbia, but I've never heard of such a thing except in France and New York City, neither of which is a US state. It seems to me that the question could be rephrased as "does the 24th amendment require states with voter ID laws to provide voter ID free of charge?" – phoog Sep 4 '18 at 14:47
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    "Many of these states now offer a free voter photo ID card if you don’t have another form of valid photo ID." usa.gov/voter-id and ncsl.org/research/elections-and-campaigns/voter-id.aspx#Details – BlueDogRanch Sep 4 '18 at 14:56
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    Following the U.S. Supreme Court’s decision on Tuesday that paves the way for implementation of Texas’ voter ID law, the state Department of Public Safety announced it will begin processing applications for free voter ID cards. – mark b Sep 4 '18 at 15:51
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    It shouldn't matter whether the fee is defined as a tax. For example, a state that required payment of a "facilities charge" for people to enter a building where polling was taking place would fall afoul of the 24th amendment even if the charge was not a tax. – phoog Sep 5 '18 at 16:12
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Taxes are not defined in the US Constitution nor as a general term by any federal statute, but a tax is considered to be a government assessment on property and transactions (e.g. import, sale, transfer of property), assessed to defray the cost of running a government. Governments also charge fees for specific services. Stemming from Proposition 218, California's constitution requires voter approval to increase taxes, but not fees. Article XIII-C defines "tax" as "any levy, charge, or exaction of any kind imposed by a local government except"...

(1) A charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege.

(2) A charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.

(3) A charge imposed for the reasonable regulatory costs to a local government for issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof.

(4) A charge imposed for entrance to or use of local government property, or the purchase, rental, or lease of local government property.

(5) A fine, penalty, or other monetary charge imposed by the judicial branch of government or a local government, as a result of a violation of law.

(6) A charge imposed as a condition of property development.

(7) Assessments and property-related fees imposed in accordance with the provisions of Article XIII D.

Providing a driver's license or state ID card would not be a "tax" under California's constitution.

TABOR Foundation v. Colorado Bridge Enterprise has some potential relevance for legally defining "tax". The court recites the distinction thusly:

The purpose of a tax is to “provide revenues in order to defray the general expenses of government as distinguished from the expense of a specific function or service.”  Bloom v. City of Fort Collins, 784 P.2d 304, 307 (Colo.1989).  “Unlike a tax, a special fee is not designed to raise revenues to defray the general expenses of government, but rather is a charge imposed upon persons or property for the purpose of defraying the cost of a particular governmental service.”  Barber v. Ritter, 196 P.3d 238, 248 (Colo.2008) (quoting Bloom, 784 P.2d at 308).   Therefore, a fee may be subject to invalidation as a tax when the principal purpose of the fee is to raise revenues for general governmental purposes rather than to defray the expenses of the particular service for which the fee is imposed.  Bloom, 784 P.2d at 308.

“To determine whether a government mandated financial imposition is a ‘fee’ or a ‘tax,’ the dispositive criteria is the primary or dominant purpose of such imposition at the time the enactment calling for its collection is passed.”  Barber, 196 P.3d at 248

So again, charging for a driver's license or a state ID card would not constitute a "tax" under these interpretations of "tax".

It is hard to know what SCOTUS would rule if the matter came to them. Recall that in National Federation of Independent Business v. Sebelius, it was held that the "teeth" of the individual mandate was held to be a penalty and not a tax, with respect to the Anti-Injunction Act (therefore, the court can hear the case). But then it is a tax (thus authorized under the Tax and Spend Clause)

The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness

  • Perhaps the question is not posed as well as it could be, but a poll tax would also not be a tax under the California definition, or at least it could be so argued. But requiring voters to present a document for which there is a charge could easily be argued to constitute a poll tax regardless of whether the fee for obtaining the document is properly considered a tax. Surely, a state could not get around the poll tax prohibition by imposing a "polling place admission fee" and defining "tax" in such a way that the fee doesn't fall within the meaning of the term. – phoog Sep 5 '18 at 16:07
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with the new movement by some states to require voters to have identification to vote, and the fact that no state I know of provides free government issued ID (unless you are an employee) it seems that unless a state provided its residents with free access to state-issued ID, that requiring people to go pay for ID's needed to vote would be contrary to the Twenty-Fourth Amendment.

This specific issue (which is much easier to address than the general question) has been litigated, and in some cases, it has been a successful argument.

It is pretty much acknowledged now that requiring a fee for all documents required in order to have ID necessary to vote violates the 24th Amendment. But, the states that enacted these requirements knew that and tried to get around it by making at least one form of voter ID free, which prevents the statutes from being facially invalid.

This isn't the end of the question, however:

Voter ID laws, enacted in 11 states over the past two years, require voters to show a government-issued photo ID that the state will provide for free. But while the ID is free, the documents residents need to prove their identity in order to get that ID, such as a birth certificate, are not.

Now, lots of people already have documents like birth certificates that were purchased by their parents at their birth and are now available to them for free. But, that isn't always the case. This raises the question of whether there is an "as applied" violation of the 24th Amendment in the cases of someone who can't prove their entitlement to compliant voter ID without paying for it, and if so, what the proper remedy is for the violation.

These issues are still being actively litigated and haven't been definitively resolved on a national basis in all circumstances.

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