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ArtI.S2.C1.2 Electors for the House

Article I, Section 2, Clause 1:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections1 solely in the discretion of the states, save only for the express requirement that the states could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature.2 This language has never been expressly changed, but the discretion of the states – and not only with regard to the qualifications of congressional electors – has long been circumscribed by express constitutional limitations3 and by judicial decisions.4 Further, beyond the limitation of discretion on the part of the states, Congress has assumed the power, with judicial acquiescence, to legislate to provide qualifications at least with regard to some elections.5 Thus, in the Voting Rights Act of 19656 Congress legislated changes of a limited nature in the literacy laws of some of the States,7 and in the Voting Rights Act Amendments of 19708 Congress successfully lowered the minimum voting age in federal elections9 and prescribed residency qualifications for presidential elections,10 the Court striking down an attempt to lower the minimum voting age for all elections.11 These developments greatly limited the discretion granted in Article I, § 2, cl. 1, and are more fully dealt with in the treatment of § 5 of the Fourteenth Amendment.

Notwithstanding the vesting of discretion to prescribe voting qualifications in the states, conceptually the right to vote for United States Representatives is derived from the Federal Constitution,12 and Congress has had the power under Article I, § 4, to legislate to protect that right against both official13 and private denial.14

Footnotes

  1.  Jump to essay-1The clause refers only to elections to the House of Representatives, of course, and, inasmuch as Senators were originally chosen by state legislatures and presidential electors as the States would provide, it was only with the qualifications for these voters with which the Constitution was originally concerned.
  2.  Jump to essay-2Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1874); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 J. Story, Commentaries on the Constitution of the United States 576–585 (1833).
  3.  Jump to essay-3The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments limited the States in the setting of qualifications in terms of race, sex, payment of poll taxes, and age.
  4.  Jump to essay-4The Supreme Court's interpretation of the equal protection clause has excluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.
  5.  Jump to essay-5The power has been held to exist under § 5 of the Fourteenth Amendment. Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970); City of Rome v. United States, 446 U.S. 156 (1980).
  6.  Jump to essay-6§ 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended.
  7.  Jump to essay-7Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).
  8.  Jump to essay-8Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.
  9.  Jump to essay-9Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).
  10.  Jump to essay-10Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970).
  11.  Jump to essay-11Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970).
  12.  Jump to essay-12The right to vote for members of the Congress of the United States is not derived merely from the constitution and laws of the state in which they are chosen, but has its foundation in the Constitution of the United States. Ex parte Yarbrough, 110 U.S. 651, 663 (1884). See also Wiley v. Sinkler, 179 U.S. 58, 62 (1900); Swafford v. Templeton, 185 U.S. 487, 492 (1902); United States v. Classic, 313 U.S. 299, 315, 321 (1941).
  13.  Jump to essay-13United States v. Mosley, 238 U.S. 383 (1915).
  14.  Jump to essay-14United States v. Classic, 313 U.S. 299, 315 (1941).