ELECTIONS AND ELECTION CAMPAIGNS Ch. 8 § 6 § 5.7 The House refused to § 6. Elector Qualifications; overturn an election in a Registration state with a ‘‘county unit’’ primary election system, The original Constitution and under which less populous Bill of Rights left the determina- counties were entitled to a tion of qualifications required of disproportionately larger electors to vote for Members of electoral vote than other the House entirely up to the counties in the same state. states.(10) At the time of the adop- tion of the Constitution, qualifica- On Apr. 27, 1948, the House tions based on status, such as adopted without debate House property ownership, were a wide- Resolution 553, dismissing the spread prerequisite to the exercise Georgia election contest of Lowe v of voting rights. Since that time, Davis.(8) the power of the states to pre- Parliamentarian’s Note: The scribe the qualifications of electors House thereby refused to invali- for Representatives and for Sen- ( ) date the Georgia ‘‘county unit’’ ators 11 has been severely pro- system for primaries, requiring scribed by constitutional amend- ments extending the franchise to use of county electoral votes rath- U.S. citizens without regard to er than popular votes for choosing such matters as race, color, or nominees. Under that system each sex,(12) and by federal legislation candidate was required to receive protecting the integrity of the con- a majority of county unit votes for gressional electoral process.(13) nomination, and unit votes were allotted to less populous counties 10. U.S. Const. art. I, § 2, clause 1. See also House Rules and Manual §§ 6, 7 rather than strictly on the basis of (1973). ( ) population. 9 11. The 17th amendment altered the Constitution in directing the election 1965), 22364 (Aug. 31, 1965), 24263– of Senators by the people of the 92 (Sept. 17, 1965). state, rather than by the state legis- 8. 94 CONG. REC. 4902, 80th Cong. 2d latures. Sess. 12. See the 15th amendment (race, color, 9. See the elections committee report in previous condition of servitude); the the case, H. REPT. NO. 1823, 80th 19th amendment (sex); the 24th Cong. 2d Sess. The Supreme Court amendment (poll tax); the 26th later invalidated the use of the amendment (age). ‘‘county unit’’ system. Gray v Sand- 13. For a summary of such legislation, ers, 372 U.S. 368 (1963). see Constitution of the United States 865 Ch. 8 § 6 DESCHLER’S PRECEDENTS The first step in the voting proc- congressional elections as long as ess for electors is voting registra- the requirements do not con- tion. Although registration is pri- travene constitutional provisions marily regulated by the states, or conflict with preemptive federal congressional authority to pre- legislation enacted pursuant to empt state regulation extends to law.(17) Residency requirements, the registration process.(14) Civil absence of a previous criminal rights legislation enacted by Con- record, and an objective require- gress has provided for federal reg- ment of good citizenship are ex- istrars and other procedures to in- amples of allowable voter quali- sure that citizens qualified under fications.(18) the Constitution are not denied The first voter qualification voting participation by rejection of which was prohibited from consid- registration applications on an ar- eration by the states was race, bitrary or discriminatory basis.(15) In judging election contests, the 17. See Harman v Forssenius, 380 U.S. House or Senate may have occa- 528 (1965); Davis v Schnell, 81 F sion to construe state laws regu- Supp 872 (D. Ala. 1949), aff’d, 336 lating registration and the effect U.S. 933. (16) Although the Constitution itself of violations thereof. does not confer federal voting rights The states may prescribe rea- on any person or class of persons, sonable qualifications for voting in Kuffman v Osser, 321 F Supp 327 (D. Pa. 1971), the electors do not owe of America: Analysis and Interpreta- their right to vote to a state law pre- tion, S. Doc. No. 92–82, 108–111, 92d scribing qualifications for the most Cong. 2d Sess. (comments to U.S. numerous branch of their own legis- Const. art. I, § 4, clause 1). lature in any sense which makes the 14. See United States v Louisiana, 225 F exercise of the right depend exclu- Supp 353 (D. La. 1963), aff’d, 380 sively on the state law. Ex parte U.S. 145; Katzenbach v Original Yarbrough, 110 U.S. 663 (1884); Knights of Ku Klux Klan, 250 F United States v Mosley, 238 U.S. 883 Supp 330 (D. La. 1965). (1915). 15. See, for example, 42 USC § 1971 (a) 18. Lassiter v Northampton County (2), (e). See also South Carolina v Board of Elections, 360 U.S. 45 Katzenbach, 383 U.S. 301 (1966), (1959). construing registration provisions of In relation to Presidential elec- the Voting Rights Act of 1965. For tions, Congress abolished state early federal court approval of fed- durational residency requirements eral registrars, see In re Sundry and provided for absentee balloting. Citizens, 23 F Cas. 13 (Ohio 1878). See United States v Arizona, 400 16. See §§ 6.1, 6.2, infra. U.S. 112 (1970). 866 ELECTIONS AND ELECTION CAMPAIGNS Ch. 8 § 6 color, or previous condition of ser- and under the 14th amendment vitude; the 15th amendment pro- Congress may act to prevent state vided not only that the right of interference with any citizen’s vot- citizens to vote should not be de- ing rights.(2) Under article I, sec- nied on those grounds but also tion 4, clause 1 of the Constitu- granted Congress the power to en- tion, Congress can legislate force the amendment by appro- against private as well as state in- priate legislation. Race as a sub- terference but only in relation to ( ) stantive qualification in elections federal elections. 3 and primaries,(19) as well as proce- Congress has enacted a number dural requirements which effec- of statutes, dating from 1870 to tively handicap the exercise of the the present, providing a variety of franchise on account of race, were remedies against interference (4) barred.(20) with voting rights. Some of those statutes have provided for Under the 15th amendment, federal officials to actively super- Congress may legislate to protect vise congressional elections in the the suffrage in all elections, both state and federal, against state in- 420, rehearing denied, 364 U.S. 855; terference based on race, color, or South Carolina v Katzenbach, 383 previous condition of servitude,(1) U.S. 301 (1939). 2. Katzenbach v Morgan, 384 U.S. 641 19. The same test to determine discrimi- (1966); Oregon v Mitchell, 400 U.S. nation or abridgement of right to 112 (1970). vote as applied in a general election 3. See Ex parte Siebold, 100 U.S. 371 should be applied to a primary elec- (1880); Ex parte Yarbrough, 110 U.S. tion, and a resolution of a political 651 (1884); United States v Classic, party limiting membership to white 313 U.S. 299 (1941). citizens where membership in a po- 4. For early legislation, see Carr, Fed- litical party was an essential quali- eral Protection of Civil Rights: Quest fication was an unconstitutional pro- for a Sword (Ithaca, 1947). Later vision. Smith v Allwright, 321 U.S. acts were the Civil Rights Act of 649 (1944), rehearing denied, 322 1957, Pub. L. No. 85–315, 71 Stat. U.S. 769. For Congress’ authority 634; Voting Rights Act of 1960, Pub. over primaries, see § 7, infra. L. No. 86–449, 74 Stat. 86; Civil 20. See Wayne v Wilson, 307 U.S. 268 Rights Act of 1964, Pub. L. No. 88– (1939). 352, 78 Stat. 241; Voting Rights Act 1. See James v Bowman, 190 U.S. 127 of 1965, Pub. L. No. 89–110, 79 Stat. (1903); United States v Reese, 92 437; Civil Rights Act of 1968, Pub. L. U.S. 214 (1876); Larche v Hannah, No. 90–284, 82 Stat. 73; Civil Rights 177 F Supp 816 (D. La. 1959), re- Act of 1970, Pub. L. No. 91–285, 84 versed on other grounds, 263 U.S. Stat. 314. 867 Ch. 8 § 6 DESCHLER’S PRECEDENTS states and directed suspension of actual abridgment of voting rights otherwise permissible voting tests, or of a connection between the such as literacy requirements,(5) challenged Member and the al- which are designed and adminis- leged abridgment. tered so as to deny voting rights Other state-ordered voter quali- ( ) in a discriminatory way. 6 fications have been removed by On occasion, titles to seats in way of amendment of the federal the House have been challenged Constitution. The right to vote re- for reason of denial of voting gardless of sex was established in rights, either through a system- 1919 with the adoption of the (7) atic state pattern or through 19th amendment. The right of all private action by either the can- citizens to vote without paying a (8) didate or party officials. On poll tax was affirmed through the many such occasions, challenges adoption of the 24th amendment, and contests have been dismissed following the passage by the or denied due to the difficulty in House but not by the Senate of a obtaining substantial evidence of bill in the 80th Congress to make 5. For permissible literacy require- unlawful a poll tax in any federal ments, see Lassiter v Northampton election.(9) County Board of Elections, 360 U.S. The right of citizens to vote has 45 (1959); Trudeau v Barnes, 65 F2d been set by the 26th amendment 563 (5th Cir. 1933), cert. denied, 290 U.S. 659.