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.

The Framers of the Constitution vested states with authority to determine qualifications for voters—referred to in the Constitution as electors—in congressional elections,1 subject to the express requirement that a state can prescribe no qualifications other than those the state has stipulated for voters for the more numerous branch of the state legislature.2 In Husted v. A. Randolph Inst., the Court stated: “The Constitution gives States the authority to set the qualifications for voting in congressional elections as well as the authority to set the ‘Times, Places and Manner’ to conduct such elections in the absence of contrary congressional direction.” 3

State discretion is circumscribed, however, by express constitutional limitations4 and judicial decisions interpreting them.5 In some cases, Congress has passed legislation to address certain election requirements.6 In the Voting Rights Act of 1965,7 Congress legislated changes of a limited nature in the literacy laws of some of the states,8 and in the Voting Rights Act Amendments of 1970,9 Congress successfully lowered the minimum voting age in federal elections10 and prescribed residency qualifications for presidential elections.11 The Court struck down Congress’s attempt to lower the minimum voting age for state and local elections.12 These developments limited state discretion granted by the Voter Qualifications Clause of Article I, Section 2, Clause 1, and are more fully dealt with in the treatment of Section 5 of the Fourteenth Amendment.

While the Constitution grants states authority over voter qualifications, voting for Members of the House of Representatives is also governed by other provisions of the Constitution.13 For instance, under the Elections Clause set forth at Article I, Section 4, Clause 1, Congress may preempt state laws governing the “Time, Place and Manner” of elections to protect the right to vote for Members of Congress from official14 or private denial.15

Footnotes

1

The Voter Qualifications Clause refers only to elections to the House of Representatives as state legislatures originally selected Senators. Adopted in 1913, the Seventeenth Amendment has identical voter qualification requirements for Senate elections. See Amdt17.3 Doctrine on Popular Election of Senators.

2

Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1874); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 Joseph Story, Commentaries on the Constitution of the United States 576–585 (1833).

3

Husted v. A. Randolph Inst., No. 16-980, slip op. at (U.S. June 2018) (holding that Ohio’s process of removing voters on the grounds that they have moved did not violate federal law).

4

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.

5

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 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.

6

The power has been held to exist under Section 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).

7

§ 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended.

8

Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).

9

Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.

10

Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).

11

Id. at 134, 147–150, 236–239, 285–292.

12

Id. at 119–131, 152–213, 293–296.

13

In Ex Parte Yarbrough, the Court stated: “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).

14

United States v. Mosley, 238 U.S. 383 (1915).

15

United States v. Classic, 313 U.S. 299, 315 (1941).