Article I, Section 3, Clause 3:
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
While the Senate Qualifications Clause expressly requires a Senator-elect to reside in the state from which he is elected at the time of the election, it is less clear when a Senator-elect must meet the age and citizenship requirements. However, in 1935, the Senate established that a Senator-elect must only meet age and citizenship qualifications at the time he or she takes the oath of office.1
In 1935, the Senate considered when a Senator-elect must meet the qualification requirements when former Senator Henry D. Hatfield of West Virginia and various West Virginia citizens challenged the seating of Senator-elect Rush Holt of West Virginia on the grounds that he had been elected to the Senate at the age of twenty-nine.2 While Senator-elect Holt acknowledged that he had not been thirty at the time of the general election on November 7, 1934 or at the convening of the Seventy-Ninth Congress on January 3, 1935, he argued that he met the Senate qualification requirements because he did not seek to take the oath of office until after he turned thirty on July 19, 1935.3 In finding that Senator-elect Holt was entitled to the seat, the Committee on Privileges and Elections considered House of Representatives practices.4 The Committee observed that while Rep. John Young Brown of Kentucky was elected to the Thirty-Sixth Congress despite being underage, he qualified for a seat because he had waited until he was twenty-five to take the oath of office.5 Similarly, the Committee noted that while Austrian immigrant Henry Ellenbogen of Pennsylvania was elected to the House of Representatives in 1932 and his term began on March 4, 1933, Rep. Ellenbogen had waited until January 3, 1934 to take his oath of office and be seated in order to comply with the citizenship requirement.6
The Committee on Privileges and Elections also noted that Senators Henry Clay of Kentucky, Armstead Mason of Virginia, and John Eaton of Tennessee had been elected and “assumed the duties of the senatorial office before they were 30 years of age,” but concluded that their examples were not precedential as no one had challenged their seats in the Senate.7 In contrast, Albert Gallatin of Pennsylvania and General James A. Shields of Illinois were elected to the Senate, but were denied their seats because they did not meet the citizenship requirement.8 The Committee on Privileges and Elections distinguished Gallatin and Shields from Holt on the grounds that they had taken their seats despite not having met the citizenship requirement whereas Holt “'was 30 years of age at the time when he presented himself to the Senate to take the oath and to assume the duties of the office.’” 9
Ultimately, the Senate voted 62-17 in favor of Senator-elect Holt taking the oath of office.10 Consequently, the Senate has allowed Senators to be seated once they meet age and citizenship qualification requirements rather than requiring them to have met those requirements at the time of the election or at the beginning of the session of Congress for which they were elected.
- S. Res. 155, 79th Cong. (1935).
- 79 Cong. Rec. 9650 (June 19, 1935). Senator Hatfield, who was a Republican, had lost the November 7, 1934, general election to Senator-elect Holt, who was a Democrat.
- S. Rep. No. 904, 74th Cong., 1st Sess. (1935), as reprinted in 79 Cong. Rec. 9651–57 (June 19, 1935).
- Id. The Committee on Privileges and Elections considered three possible times at which a Senator-elect must have filled the requirement: (1) at the time of election, (2) at the time the congressional term commenced, or (3) at the time the Senator-elect took his oath of office. Id. at 9652.
- Id. at 9652 (citing Cong. Globe, 36th Cong., 1st Sess. 25, 31 and quoting from Jefferson’s House Manual that “'A Member-elect not being of the required age, he was not enrolled by the Clerk and did not take the oath until he had reached the required age’” ).
- S. Rep. No. 904, 74th Cong., 1st Sess. (1935), as reprinted in 79 Cong. Rec. 9652 (June 19, 1935).
- Id. ( “No objection was made to the seating of Henry Clay, and it appears that he himself was probably unaware of the age qualification. His case is not relied upon as precedent. Likewise, the case of Mason and Eaton are not cited as precedents because, no question having been raised, each of these cases is at most a mere physical precedent.” ).
- Id. at 9653. In the case of Shields, he subsequently won the special election to fill the Senate vacancy occasioned by his disqualification this time meeting the citizenship requirement.
- Id. at 9652 (quoting S. Res. 155, 79th Cong. (1935)). The minority on the Committee on Privileges and Elections argued that the standard should be commencement of the term for which the Senator was elected. Id. at 9653. Senator Hiram W. Johnson noted that prior Senate practice indicated that commencement of the term of office should be the date by which a Senator-elect must meet the qualification requirements. Id. at 9652.
- 79 Cong. Rec. 9842 (June 21, 1935).