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Amdt17.3 Doctrine on Popular Election of Senators

Seventeenth Amendment:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Shortly after ratification of the Seventeenth Amendment, some courts took the position that if a person possessed the qualifications required to vote for a Senator, the person’s right to vote for the Senator was not derived merely from the constitution and laws of the state that chose the Senator, but had its foundation in the Constitution of the United States.1 Consistent with this view, federal courts declared that, when local party authorities, acting pursuant to regulations prescribed by a party’s state executive committee, refused to permit a Black citizen, on account of his race, to vote in a primary to select candidates for the office of U.S. Senator, they had deprived him of a right secured to him by the Constitution and laws, in violation of the Seventeenth Amendment.2 By contrast, the Supreme Court held that an Illinois statute that required a petition signed by at least 25,000 voters from at least fifty counties to form and nominate candidates for a new political party did not violate the Seventeenth Amendment, notwithstanding that 52% of the state’s voters were residents of one county, 87% were residents of forty counties, and only 13% resided in the fifty-three least populous counties.3

United States v. Aczel, 219 F. 917, 929–30 (D. Ind. 1915) (citing Ex parte Yarbrough, 110 U.S. 651 (1884)). back
Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied, 327 U.S. 800 (1946). back
MacDougall v. Green, 335 U.S. 281 (1948), overruled on equal protection grounds in Moore v. Ogilvie, 394 U.S. 814 (1969). See Forssenius v. Harman, 235 F. Supp. 66 (E.D.Va. 1964), aff’d on other grounds, 380 U.S. 528 (1965), where a three-judge District Court held that the certificate of residence requirement established by the Virginia legislature as an alternative to payment of a poll tax in federal elections was an additional qualification to voting, in violation of the Seventeenth Amendment and Art. I, § 2. back