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CRS Annotated Constitution

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[p.109]
ELECTOR QUALIFICATIONS

It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections276 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.277 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 limitations278 and by judicial decisions.279 Further, beyond the limitation of discretion on the part of the States, Congress has assumed the power, with judicial acquiescence, to legislate itself to provide qualifications at least with regard to some elections.280 Thus, in the Voting Rights Act of 1965,281 Congress legislated changes of a limited nature in the literacy laws of some of the States,282 and in the Voting Rights Act Amendments of 1970,283 Congress successfully lowered the minimum voting age in federal elections284 and prescribed residency qualifications for presidential elections,285 the Court striking down an attempt to lower the minimum voting age for all elections.286 These developments greatly limited the discretion granted in Arti[p.110]cle I, Sec. 2, cl. 1, and are more fully dealt with subsequently in the treatment of Sec. 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,287 and Congress has had the power under Article I, Sec. 4, to legislate to protect that right against both official288 and private denial.289


Footnotes

276 The 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.
277 Minor v. Happersett, 21 Wall. (88 U.S.) 162, 171 (1875); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 576–585.
278 The 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.
279 The 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 District, 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.
280 The power has been held to exist under Sec. 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).
281 Sec. 4(e), 79 Stat. 437, 439 , 42 U.S.C. Sec. 1973b (e), as amended.
282 Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).
283 Titles 2 and 3, 84 Stat. 314 , 42 U.S.C. Sec. 1973bb .
284 Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).
285 Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970).
286 Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970).
287 “The 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).
288 United States v. Mosley, 238 U.S. 383 (1915).
289 United States v. Classic, 313 U.S. 299, 315 (1941).
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