Abstract

Excerpted From: Jeremy Bearer-Friend, Race-based Tax Weapons, 14 UC Irvine Law Review 1067 (October, 2024) (257 Footnotes) (Full Document)

A poll tax is a tax on heads. If you have a head, you pay the tax. In theory, poll taxes apply to everyone since everyone has a head. In practice, poll taxes are further narrowed to specific heads-- heads of a certain age, heads of a certain gender, heads of a certain ancestry. In some settings, poll taxes are also used to limit access to the franchise. Connecting voting rights to the payment of a tax is a design feature that can be added to poll taxes but is not inherent to poll taxes, as will be discussed further below.

Poll taxes easily lend themselves to racially targeted tax policy. As one civil servant tasked with implementing a poll tax described it, a poll tax is a “person-based tax” rather than a “property-based tax.” To the extent persons can be sorted into types of persons, poll tax liability can be adjusted accordingly. Two of the twentieth-century poll taxes examined by this Article are poll taxes that explicitly target taxpayers based on race, ethnicity, or ancestry. That is, the statutes of these twentieth-century taxes specified the race, ethnicity, or ancestry of the persons to be taxed and subsequently exempted other groups from the tax.

My account of such explicitly targeted tax policy becomes even more informative, however, when contrasting these taxes with poll taxes where the statutory text makes no mention of race, ethnicity, or ancestry. As this article demonstrates, racial targeting persists even when poll taxes make no mention of race, ethnicity, or ancestry. And because poll taxes nominally include everyone--all people with heads--their ability to target specific groups of taxpayers is even more striking. In some ways, these facially neutral poll taxes are even more effective at targeting than the poll taxes that specify their political targets explicitly. Thus, poll taxes are a powerful example of how a universalist tax policy can be weaponized to target political adversaries. I call such a category of taxes “race-based tax weapons.”

My conclusion about the ability of nominally universal poll taxes to target vulnerable taxpayers builds on longstanding work in Critical Race Theory that documents the disparate impact of facially neutral law in the context of public law, including immigration law and criminal law, as well as private law, including bankruptcy law and property law. Critical Race Theory has consistently demonstrated how the goals of white supremacy can be achieved with facially neutral laws. In tax, over three decades of scholarship have demonstrated that facially neutral tax laws compound racial inequality. My novel addition with this article is to revisit tax laws that are not facially neutral and directly contrast them with tax laws that are. This helps reveal the specific qualities in a tax policy design that enable racial targeting.

Before summarizing my findings about poll taxes as race-based tax weapons, a few introductory words about my research design are in order. This article provides a detailed account of four poll taxes imposed by Anglophone governments in the twentieth century: the poll tax imposed by the Constitutional Convention on voters in Texas in 1902; the poll tax imposed by ballot initiative on immigrants in California in 1921; the poll tax imposed by the British Empire on Black people in Kenya in 1934; and the poll tax imposed by the British Parliament on residents in Scotland in 1989. I examine the statutory text of the poll taxes, the administrative guidance issued by the enforcers of the poll taxes, and the protest materials of those liable for the poll taxes. I deploy a comparative study of four poll taxes to then arrive at broader conclusions about poll taxes specifically and tax policy more generally. My primary audience is other tax law scholars who may only have a stylized or cursory understanding of poll taxes. A secondary audience is those outside of tax who seek to understand poll taxes from a tax scholar's point of view.

A concern with tax weapons is also consistent with the ambitions of the Law and Political Economy movement. This movement seeks to pivot the emphasis in legal scholarship from efficiency to power relationships. Both empirically understanding and normatively evaluating a given public policy is achieved through a recognition of the ways public policies are produced through specific power structures and maintain or alter such power structures. This lens can be extended to tax law, where the power dynamics that created a tax and that result from a tax are the central concern of the analysis. Tax weapons exhibit this specific dynamic, whereby those with power use tax policy to harm those with less.

This article focuses on poll taxes because of their explanatory potential for broader tax policy choices. Poll taxes are consistently used in introductory public finance texts as a baseline against which other taxes are evaluated. Although these introductory sources typically acknowledge that the hypothetical poll tax baselines are stylized caricatures, they nevertheless prove instructive for illustrating fundamental tax policy concepts. I follow in this tradition of looking to poll taxes as instructive about tax policy more broadly but draw from the legislative text of actual poll taxes that were administered rather than hypothetical ones. These historical poll taxes offer important lessons for contemporary tax policy debates on tax administration, racial bias in tax policy, and the relationship between taxes and voting.

The four poll taxes included in this article were selected deliberately. I limited my inquiry to poll taxes in the twentieth century because all four jurisdictions would then share a similar menu of available tax bases at their time of enactment. Some form of consumption tax, property tax, and income tax were in effect in all of the jurisdictions that also had poll taxes. This implies that poll taxes were a deliberate choice amongst multiple tax base options. Limiting the selected poll taxes to the twentieth century also meant looking at a period of rapid state expansion, with the rise of bureaucracy, professionalized civil servants, fiscal capacity, and fiscal needs of that time period. Twentieth-century poll taxes may also feel more immediately familiar to my readers as relevant to tax policy challenges of today. All four poll tax jurisdictions are in Anglophone jurisdictions so that I could read the law in its original text. And all four poll taxes are historical and no longer in force, such that there is no current poll tax practitioner who would be better situated to conduct this inquiry.

The poll taxes selected also vary in ways that are important for my conclusions. Two of the four poll taxes are explicit in their statutory language of targeting certain racial or ethnic groups, while two poll taxes make no mention of their intended political targets in the statutory text. Two of the poll taxes apply to taxpayers ineligible to vote, while two apply to potentially eligible voters. Two of the poll taxes were principally driven by revenue needs, while two of the poll taxes were not motivated by revenue. All four are locally enforced, though one was initially enacted by a national legislature, one by a state legislature, one by a subnational popular vote, and one by an appointed colonial government. These points of variation offer a rich setting for broader conclusions about poll taxes.

While the detailed work of reviewing the statutory text of poll taxes through the lens of tax scholarship is a contribution in itself, this article then moves on to advance a theory of “tax weapons.” The four poll taxes analyzed demonstrate the use of tax policy as a device to harm political rivals, distinguishing a concern with tax weapons from the evaluation of tax policy against the traditional goals of revenue, redistribution, and regulation. Race-based tax weapons are tax policy instruments designed to harm political rivals based on their race, ethnicity, or ancestry. More broadly, a tax weapon is the imposition of a targeted harm on a specific group.

Tax weapons are worthy of particular scrutiny because taxes are an especially potent exercise of state power relative to other forms of weaponized government. A single tax can simultaneously constrain property rights, invade privacy, impose criminal liability, and frustrate civic participation. Citizens also have more limited protections in challenging taxes relative to other exercises of state power. And tax is widely recognized as an area of reduced public understanding, making tax law an easier location for legislators to conceal state activity without public accountability. Each of these characteristics in turn makes the detection and disarming of tax weapons all the more important.

Poll taxes reveal three specific design features to achieve racial targeting without mentioning such targets in a statute. First, poll taxes, despite being nominally universal, can still calibrate tax liability on racial proxies--characteristics that reliably correlate with race, ethnicity, or ancestry. Second, poll taxes rely on tax localization to allocate higher tax liability to those in disfavored groups within a broader taxing jurisdiction. Third, poll taxes rely on strategic administrative disfunction that encourages low compliance rates, in turn producing opportunities for targeted enforcement. Poll taxes also demonstrate how the absence of explicit targeting can better enable targeting. Facially neutral statutes provide the imprimatur of fairness, dampening public disapproval. Facially neutral statutes are also more resilient against legal challenges.

Finally, twentieth-century poll taxes offer guidance for how to detect and disarm twenty-first-century tax weapons. Attention to the statutory text of historical race-based tax weapons leads to a better understanding for guarding against malicious racial targeting and weaponized tax policy today. Most crucially, improved tax data that includes demographic information about taxpayers can assist both ex-ante and ex-post disarmament of race-based tax weapons. The lessons of twentieth-century poll taxes and the irrelevance of racial language for assessing the harms of a tax may also encourage a new tolerance of racial language in statutes. This opens the door for race-based remedies, such as reparations policies that are explicitly targeted based on race, ethnicity, or ancestry. Lastly, a historical understanding of tax weapons informs the twenty-first-century debate over whether the current IRS has been “weaponized.”

This Article proceeds as follows. In Part I, four twentieth-century poll taxes are described in chronological order. In Part II, a theory of tax weapons is introduced, with a focus on race-based tax weapons as the foundational example of how such weapons operate in law. In Part III, I identify the tax design features that allow for racial targeting. I also argue that poll taxes that do not mention specific targets can be equally effective--if not more effective-- at achieving discriminatory goals than poll taxes that specify their targets. In Part IV, I draw from my analysis of twentieth-century race-based tax weapons to offer a series of recommendations for how to detect and disarm twenty-first-century tax weapons.

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In an era where poll taxes are widely derided, pursued only underhandedly, and denied by their own framers, any criticism of poll taxes is an easy case. Rather than adopting a predictable normative position of rejecting poll taxes, this article has sought to extract what tax scholars and tax policymakers still have to learn from poll taxes. What emerged is new evidence of the ways neutrality in statutory language cloaks the use of tax law as a political weapon, including how nominal universality can increase the political viability and discriminatory impact of race-based tax weapons. These insights speak to poll taxes and non-poll taxes alike, with the lessons of twentieth-century race-based tax weapons offering clear guidance for how to detect and disarm tax weapons in our twenty-first century.

Associate Professor of Law, George Washington (GW) Law School.