Would a Property Qualification for Voting Be Constitutional?

Historian David Kaiser asks whether a property qualification for voting would be Constitutional:

It occurred to me this morning that the solution to Republican electoral problems is, when you think about it, obvious, and a friend of mine from a red state pointed out that a Tea Party leader has already mused about it, back in the heady days of 2010. The solution, which has a rich tradition in western and US history, is a property qualification for voting. And what is rather shocking is that there does not seem to be anything in the Constitution to prevent it.

Clearly, there is nothing in the basic, or even 10-amendment, Constitution — at least as originally understood — that would prevent a state from imposing a property qualification. Several states had them in the early years of the Republic (just as at least one had an established church for several years). I think the main federal issue would be whether the Equal Protection Clause of the 14th Amendment, as currently understood, would block a property qualification. There would, undoubtedly, also be state constitutional law issues in many states.

I’m not an Equal Protection expert by any means, but my knee-jerk reaction is ‘of course that isn’t Constitutional’. That said, it’s not explicitly barred, which I suppose means that were the Court to treat the question doctrinally, it would apply strict scrutiny. I don’t see how a state would come up with justifications for a property requirement that would survive strict scrutiny, but I’m open to correction on anything in this last paragraph by people who actually know stuff.

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3 Responses to Would a Property Qualification for Voting Be Constitutional?

  1. C.E. Petit says:

    And the obvious rejoinder:

    Define “property.”

    If one only rents an apartment but has a Bentley, is that enough “property”?

    How about “intellectual property”?

    Or — as in pre-Enlightenment England — is “real” property the only property?

    • Presumably that would be up to the state to define? My guess is that any modern attempt to pull this stunt would surely include financial assets — which was not what the Framers used.

  2. Jon Weinberg says:

    There’s case law. The Court has struck down property requirements in connection with governmental entities that perform normal governmental functions or that otherwise do stuff in which nonpropertyholders have a sufficient interest. See Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969; Kramer v. Union Free School District, 395 U.S. 621 (1969); see also Harper v. VA State Board of Elections, 383 U.S. 663 (1966) (poll tax) (“wealth . . . has . . . no relation to voting qualifications”). It has upheld property requirements in the context of “limited purpose” water storage and reclamation districts, which are seen as exercising no governmental authority with respect to nonpropertyholders, see Ball v. James, 451 US 355 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973).

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