March 22, 1962 (3)

The Senate resumed the consideration of the motion of the Senator from Montana [Mr. MANSFIELD] to proceed to the consideration of the joint resolution <S.J. Res. 29) providing for the establishing of the former dwelling house of Alexander Hamilton as a national monument.

Mr. BYRD of Virginia. Madam President, the Federal Constitution of the United States, including the first 10 amendments, certainly was one of the greatest national instruments ever written. It is the basic law of this Nation. Its amendment should be neither useless nor capricious. The Constitution itself prescribes the only manner in which it may be amended. The Senate should not shortcut the procedure at any point.

Yet today we have before us a proposed amendment which would have no direct application in 45 States; and we are confronted with an effort to employ most unorthodox procedure to bring it before the Senate.

The amendment would undermine a fundamental right guaranteed by the Constitution-the right of the respective States to establish their own qualifications for voting.

Senators representing the 45 States which do not have poll tax qualifications for voting may regard the proposed amendment-and the proposed procedure in the Senate-as of little importance to them.

I urge them to consider the fact that their States do have other qualifications for voting. If poll taxes can be struck down as a qualification for voting, so also may qualifications of some other nature.

This proposal should not be taken lightly. The seriousness of reserving to the States the right to establish voting qualifications-and the legitimacy of poll taxes as a qualification-are easily demonstrated.

In the · situation which has been developed in the Senate, these facts may best be demonstrated by a review of the reason and the logic of both poll taxes and the pertinent constitutional provisions.

One of the best reviews on these subjects I have ever seen was presented in the form of a brief in the relatively recent past by the late Abram P. Staples, of Roanoke, Va. Justice Staples enjoyed the reputation of being among the foremost constitutional lawYers in the country. He served Virginia well for yearsin the State senate, as attorney general, and on the State supreme court.

He wrote the brief as Attorney General of Virginia, and at the outset he summarized its reason and logic in six concise propositions. I quote these propositions from the Staples' brief, as follows: 1. The Constitution reserves in the States the exclusive power to determine the manner of choosing its electors to vote for President or Vice President of the United States, and confers no power whatsoever on Congress to legislate on this subject.

2. Article I, section 2, of the Constitution, and the 17th amendment , reserve unto the States the exclusive power to prescribe the qualifications of the electors for Members of the Senate and House of Representatives, and this power is in no way modified or impaired by the power delegated to Congress by article I, section 4, to regulate the time, place, and manner of holding elections.

3. The requirement of the payment of a poll tax as a prerequisite to the right to vote is a qualification of an elector within the meaning of article I, section 2, of the Constitution and of the 17th amendment.

4. Even if the requirement of the payment of a poll tax be deemed not to be a "qualification" of electors it is nevertheless a proper exercise of the reserved powers of the States over suffrage, as well as of the taxing powers of the States.

5. The Constitution protects the right to vote of only those who are qualified to vote under State statutes.

6. Whether a State has exercised its constitutional power to prescribe the qualification of electors in an unconstitutional manner so as to deprive citizens of rights guaranteed to them by the Constitution is a judicial question. and is for the courts, not the Congress, to determine.

Justice Staples then proceeded to take up the foregoing propositions in the order set out. His first proposition was that-

1. The Constitution reserves in the States the exclusive power to determine the manner of choosing its electors to vote for President or Vice President of the United States, and confers no power whatsoever on Congress to legislate on this subject.

On th i s proposition J u stice St a ples said:

The only provision of the Consti t ution relating to the power of appointment of electors is contained in article II, sect i on 1, of the Constitution, by which the States reserved unto themselves and conferred upon their own legislatures plenary power over the subject except as to the time of choosing the electors.

The second clause of the section provides, as follows:

Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. The fourth clause is as follows:

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States. Nothing can be clearer than the effect of these quoted provisions. In drafting and adopting the Constitution, the States were not conferring powers on themselves, they were reserving powers already possessed and conferring them upon their own legislatures. By these provisions the States delegated to Congress the power only to determine the time of choosing the electors, while they conferred on their own respective State legislatures the exclusive power to direct the manner in which said electors shall be appointed. There is no requirement that they shall be elected by the people, or, if so elected, what qualifications the legislature may prescribe for those privileged to vote for them. In fact, in the first presidential election, in 5 of the 11 States which had then ratified the Constitution, the appointment of electors was made by the State legislatures. McPherson v. Blacker, 146 U.S. 1, 36 L. Ed. 869, 875. In construing the second clause in the cited case, Mr. Chief Justice Fuller said:

The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their represen tatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.

And Chief Justice Puller said further: In short, the appointment and mode of ap p ointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray in Re Green, 134 U.S. 377, 379 (83: 951, 952) "no more officers or agents of the United States than are the members of the State legislatures when acting as electors of Federal Senators, or the people of the States when acting as the electors of Representatives in Congress." Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power, and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and Federal influence might be e x cluded.

The opinion also quotes with approval from a r e port of the Senate Privileges and Elections Committee made in 1874, in which it is stated that "it is no doubt competent for the legislature to authorize the Governor, or the supreme court of the State, or any other agent of its will to appoint these electors." .

And referring to the provision of the 14th amendment penalizing the State representation in the House of Representatives where the right to vote at any election is denied or abridged except for crime, the Court said further:

The first section of the 14th amendment does not refer to the exercise of the elective franchise, though the second provides that ~f the right to vote is denied or abridged to any male inhabitant of the State having attained majority and being a citizen of the United States, then the basis of representation to which each State is entitled in the Congress shall be proportionately reduced. Whenever presidential electors are appointed by popular election, then the right to vote cannot be denied or abridged without invoking the penalty, and so of the right to vote for Representative in Congress, the executive and judicial officers of a State, or the members of the legislature thereof. The right . to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State. There is no color for the contention that under the amendments every male inhabitant of the State being a. citizen of the United States has from the time of his majority a right to vote for presidential electors (36 L. Ed. 878).

The 14th amendment applies to State officers as well as Federal, and, while it penalizes the States for the exercise of their power to deny or abridge the right to vote, it at the same time recognizes the existence of that power. It certainly does . not prohibit its exercise. The only power conferred on Congress is to reduce the State's representation.

It is clear, therefore, that nowhere does the Constitution confer on Congress any power to supervise or in any manner interfere with the State legislatures in directing the manner of appointment of a State's presidential electors, or in saying who may vote in elections to choose them, if the legislature directs that method of appointment and prescribes who may vote therein.

Justice Staples now discusses his second proposition, which was that--

2. Article I, section 2, of the Constitution, and the 17th amendment, reserve unto the States the exclusive power to prescribe the qualifications of the electors for Members of the Senate and House of Representatives, and this power is in no way modified or impaired by the power delegated to Congress by article I, section 4, to regulate the time, place, and manner of holding elections.

On this subject, Justice Staples said: "Article I, section 2, clause 1, provides: '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 17th amendment, clause 1, is as follows: 'The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for 6 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 legislature.'

"Article I, section 4, reads thus: 'The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, ex­ -cept as to the places of choosing Senators.' "The lOth amendment provides that 'The powers not delegated to the United States by the Constitution, nor prohibited by it t~ the States, are reserved to the States respectively, or to the people’.”

It is not contended that the States delegated to Congress the power to prescribe the qualifications of electors for the most numerous branch of the State legislatures. That power, then, was undoubtedly reserved by each of the several States unto itself. This automatically, as a matter of law, resulted in vesting in each State the power to determine the qualifications of electors for its Senators and Representatives in Congress, because the qualifications are fixed by article I, section 2, as the same as the electors for the State legislature. It is obvious, therefore, that a congressional power to prescribe qualifications for electors for Senators and Representatives would necessarily carry with it the power to fix the qualifications for voters for the State legislatures, since they must be the same. It is a fundamental and universally accepted principle governing the interpretation of the Constitution, where the respective powers of the State and Federal Governments are the subject of inquiry, that the States, in creating the Constitution, reserved all legislative powers which they did not grant to the Congress. If the Constitution had merely provided that each State should have the right to be represented in Congress by two Senators and a number of Representatives, without any provision at all as to their method of selection, each State would have possessed complete power to select its representatives in any manner it might see fit. When the Constitution was being drafted each State had unlimited sovereign powers with respect to the selection of any representatives it might send anywhere. Since the States already possessed this power, it is wholly inaccurate to speak of their conferring such power upon themselves. The situation was analogous to that in which the United States would find itself if a constitution of a League of Nations were being drafted. Would it be necessary for such a constitution to provide a method of seleCtion of our representatives in such a League? If the League constitution should entitle us to certain representatives, the Congress possesses ample power to determine the method of their selection. It need not derive it from the League constitution. If the League constitution did provide a particular method of selection of our representatives in the League, it would clearly operate as a restriction upon the powers of Congress, not as a grant of power.

It is likewise undoubtedly true that article I, section 2, of our Constitution was not a grant but a restriction upon the power of the States, in that it prohibited them from prescribing different qualifications for electors for Representatives in Congress than for those voting for the most numerous branch of their State legislatures. The States would clearly have had the right to fix different qualifications if the Constitution had been silent on the subject.

At this point Justice Staples turned to the interpretation by framers of the Constitution, and he said:

Alexander Hamilton, who took a leading part in drafting the Constitution and in expounding its meaning to the State legislatures then considering its adoption, emphasized the wisdom of the suffrage provision in article I, section 2.

The provision, he explained, necessitated the placing of the voting qualifications in the State constitution and removed it from State legislatures, for the obvious reason that there could be no election for members of a State legislature until the State constitution had provided for their election and the qualifications of their electors.

The provision made by the convention appears, therefore, to be the best that lay within their option-

He said.

It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established by the State itself. It will be safe to the United States, because being fixed by the State constitutions, it is not alterable by the State governments.

Hamilton also said that to have left the right of suffrage "open for the occasional regulation of the Congress, would have been improper."-the Federalist, No. LII.

It is significant that the initial power to regulate the "time, place and manner of holding elections" is lodged by article II, section 4, in the legislatures of the States. But as Hamilton explained, these legislatures would have no power to prescribe qualifications of their electors, because necessarily this must be done by the State constitution. It follows, then, that the power of Congress to make or alter such regulations is necessarily limited to the regulations which the State legislature could make; and prescribing the qualifications of their own electors is not one of them. Article I, section 2, does not purport to vest any power at all in the State legislatures. It contemplates that the voting standards shall be fixed by the States themselves, in their constitutions, but the power to regulate the time, place and manner of holding such elections is vested in the State legislatures, and this power is paramount to a conflicting State constitutional provision to regulate same. McPherson v. Blacker, 146 u.s. 1, 36 L. Ed. at page 874.

That it was the intention of the States to reserve to themselves complete control of suffrage is manifest from contemporaneous discussions of the subject. Objections were urged by those opposing the adoption of the Constitution that the power conferred on Congress of final control over the place of holding such an election would enable Congress to designate places so located that the wealthy and wellborn as they are called would dominate the choice of Repre- sentatives. Hamilton pointed out that people of that class were not segregated in particular localities, and that no such discrimination could be successfully practiced. He then added this significant statement:

The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect, or be elected. But this forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the constitution; and are unalterable by the legislature. (The Federalist No. LX.)

In the debates concerning the adoption of the Constitution at the Massachusetts convention, in discussing this question, it appears from page 28 of volume II of Elliot's Debates (2d ed.) that Mr. White expressed the view that Congress might prescribe "that none should be electors but those worth 50 or a 100 pounds sterling." To which it appears from page 51 of said volume that Mr. King, who with Hamilton was also a member of the style drafting committee, replied as follows:

The idea of the honorable gentleman from Douglass, • • •, transcends my understanding; for the power of control given by this section extends to the manner of election, not the qualifications of the electors.

See also to the same effect the statement of Mr. Nicholas, chairman of the Virginia convention; as reported in volume III, page 8, Elliot's Debates.

At page 71 of volume IV, Elliot's Debates, Mr. Steele, of North Carolina, referring to the election of Representatives in Congress, stated the following: Who are to vote for them? Every man who has a right to vote for a representative to our legislature will ever have a right to vote for a representative to the General Government. Does it not expres s ly provide that the electors in each State shall have the qualifications requisite for the most numerous branch of the State legislature? Can they, without a most manifest violation of the Constitution, alter the qualifications of the electors? The power over the manner of elections does not include that of saying who shall vote: the Constitution expressly says that the qualifications which entitled a man to vote for a State representative. It is, then, clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors shall elect-­ whether by ballot, or by vote, or by any other way. Is it not a maxim of universal jurisprudence, of reason and commonsense, that an instrument or deed of writing shall be so construed as to give validity to all parts of it, 1f it can be done without involving any absurdity?

At page 61 of the same volume, Mr. Davis, of North Carolina, in support of the granting of the power, stated the following:

If gentlemen will pay attention, they will find that, in the latter part of this clause, Congress has no power but what was given to the States in the first part of the same clause. They may alter the manner of holding the election, but cannot alter the tenure of their office. They cannot alter the nature of the elections; for it is established, as fundamental principles, that the electors of the most numerous branch of the State legislature shall elect the Federal representatives, and that the tenure of their office shall be for 2 years; • • • Here, in the firs"t part of the clause, this power over elections is given to the States, and in the latter part the same power is given to Congress, an~ extending only to the time of holding, the place of holding, and the manner of holding, the elections. Is this not the plain, literal, and grammatical construction of the clause? Is it possible to put any other construction on it, without departing from the natural order, and without deviating from the general meaning of the words, and every rule of grammatical construction. Twist it, torture it, as you may, sir, it is impossible to fix a different sense upon it.

Justice Staples then turned to decisions by the U.S. Supreme Court, and here he found that there is an unbroken line of decisions of the Supreme Court which recognize the exclusive power of the States to prescribe the suffrage qualifications of their electors, except insofar as they are restricted by the 15th and 19th amendments which forbid discriminations only because of race, color or previous conditions of servitude, or of sex. In Breedlove v. Suttles, 302 U.S. 277, 283, decided less than 5 years ago, the Supreme Court in a unanimous opinion said:

To make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the 14th amendment. Privilege of voting is not derived from the United States, but is conferred by the State and, save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate. Minor v. Happersett, 21 Wall. 162, 170 et seq., 22 L. ed. 627, 629; Ex parte Yarbrough, 110 U.S. 651, 664, 665, 28 L. ed. 274, 275, 4 S. Ct. 152; McPherson v. Blacker, 146 U.S. 1, 37, 38, 36 L. ed. 869, 878, 13 S. Ct. 3; Guinn v. United States, 238 U.S. 347, 362, 59 L. ed. 1340, 1346, 35 S. Ct. 926, L.R.A. 1916A, 1124. (82 L. ed. After taking up U.S. Supreme Court decisions, Justice Staples moved to decisions in State courts. In this respect he said:

There have been numerous State court decisions sustaining the validity of the poll tax qualification. It would unduly prolong this statement to undertake to review them. However, in the last volume of American Law Reports, Annotated (vol. 130) the case of Pirtle v. Brown, last above referred to, is reported, and in an annotation thereto, beginning on page 572, this proposition is stated: "The courts are unanimous in holding that failure to pay a valid poll tax imposed as a condition of voting has the effect of disqualifying the voter and rendering his vote invalid." In support of the statement, the annotation cites the Breedlove case, also Pirtle v. Brown, and innumerable decisions from the following States: Alabama, Arkansas, Delaware, Florida (five cases), Georgia, Kentucky, Louisiana, Massachusetts, Mississippi, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia.

From the "History of Judicial Decisions," Justi-ce Staples reviewed congressional and State action as follows: Congress has proposed two previous amendments to the Constitution, the purpose of each of which was to restrict the unlimited reserved power of the States over suffrage. The 15th amendment prohibits denial of the right to vote on account of forth. race, color, or previous condition of servitude, while the 19th amendment prohibits such denial on account of sex. If Congress considered that it possessed the power tp prohibit such denial, there would have been no necessity or reason for submission of these amendments. A prohibitory statute would have been sufficient in each case. Furthermore, the 14th amendment expressly recognizes the full power of the States over suffrage qualifications by conferring on Congress power to reduce the basis of representation of any State which may abridge or deny the right to vote of male citizens 21 years of age, except for participation in rebellion, or other crime. This provision, the Supreme Court, referring to the State's power over suffrage, held, recognizes the possession of the general power by the State, since the amendment seeks to regulate its exercise as to the particular subject with which it deals. (Guinn v. United States, 238 .u.s. 362.)

Thus, by submitting these amendments; the Congress has construed the Constitution as reserving in the States full power over suffrage requirements, and the States, by ratifying same, have placed a like construction on same.

Summarizing what has been said on this second proposition, it is clear beyond debate that, under the construction placed on sections 2 and 4 of article I of the Constitution, first, by the cotemporaneous statements of the framers of the Constitution; second, by the unanimous decisions of the Supreme Court of the United States and of the highest courts of the States; and third, by the actions of Congress and the States with respect to constitutional amendments regulating in certain particulars the State's exercise of its powers over suffrage, the States reserved unto themselves full and unlimited powers to prescribe who may vote at all elections, except as restricted by the provision that the qualifications to vote for their Senators and Representatives in Congress, should not be different from those prescribed for voters for the popular branch of the State legislatures.

Justice Staples' third proposition was:

3. The requirement of the payment of a poll tax as a prerequisite to the right to vote is a "qualification" of an elector within the meaning of article I, section 2, of the Constitution and of the 17th amendment.

And in this connection he said it has been contended that a requirement of payment of a poll tax as a prerequisite to voting for President or for a State's Senators and Representatives in Congress, is not a "qualification of voters or electors" in elections for these officers, but is "an interference with the manner of holding" such elections. Much of the testimony before the committees of Congress is to the effect that the great majority of those who do not pay the tax are too poor to do so. Their poverty would in most, though not all, cases also have reasonable relation to "intelligence, ability, and character," though recitals in the preambles of certain bills introduced in Congress deny this to be a fact. It might with greater truth be said that length of residence, or even citizenship itself, has no reasonable relation to intelligence, ability, wealth, character, and so

The word "qualification" is thus defined in Webster's · Dictionary:

A condition precedent that must · be complied with - for the attainment of a status, the perfection of a right, etc.; as the qualifica- tion of citizenship.

"Qualified voter" is defined as "one who possesses certain specific qualifications for voting, especially as to citizenship, age, and re _ residence, and sometimes also as to literacy and ownership of prop- . erty."

Alexander Hamilton, in his statement heretofore quoted herein, used the expression in connection with suffrage, "prescribing qualifications of property." Mr. Steele, in the North Carolina convention, in his statement also above quoted, interpreted the power of the State to prescribe qualifications of electors as the power to determine "who shall be the electors." Mr. Davie, in the same convention, in a statement also heretofore quoted herein, said that "it is established, as fundamental principle, that the electors of the most numerous branch of the State legislature shall elect the Federal representatives." He obviously construed the word "qualifications" as embracing all suffrage requirements. But under relatively recent bills before Congress, the Virginia electors for members of its legislature would not be the same as those for Virginia's U.S. Senators and Representatives.

And the Supreme Court itself has interpreted the State's power to prescribe suffrage qualifications as embracing the entire . field of determining who may vote. In the Yarbrough case, supra, the Court said the States "define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall - vote for Members of Congress in that State. It adopts the qualification thus · furnished as the qualification of its own electors for Members of Congress." It was after this judicial interpretation of the language used in section 2 of article I · that the same language was employed in the 17th amendment with respect to the qualification of voters for U.S. Senators. It is an elementary principle of the law that Congress is absolutely bound by this judicial interpretation of language afterward adopted in amending · the Constitution. It cannot enlarge its own powers by changing the judicially fixed meaning of words.

As before pointed out, the Yarbrough case, in which the language quoted was used, was cited with approval in the recent Breedlove and Classic cases, and in Swafford against Templeton, supra-decided in 1902-and the language itself was quoted with approval in the year . 1900 in Wiley against Sinkler, supra. It cannot be successfully denied that the Supreme Court has repeatedly held that the States have the absolute and exclusive right to prescribe who may vote in such elections.

Justice Staples continued by saying: The word "qualification" with respect to suffrage has from and before the foundation of our Government continued at all times to be used in the sense of defining the class or classes of persons who are entitled to vote. As pointed out above, the word was so interpreted by the framers of the Constitution, and those debating its adoption in various State conventions. In addition to those above mentioned, in the 1937 edition of "Elliot's Debates," volume 5, supplement, page 385, it appears that in the discussion in the Constitutional Convention concerning the adoption of what is now section 2 of article I, Mr. Gouverneur Morris moved to amend it by striking out "beginning with the words 'qualifications of electors'" so as to "restrain the right of suffrage to freeholders." "Give the votes to people who have no property," he · said, "and they will sell them to the rich, who will be able to buy them." Mr. Wilson thought "it would be difficult to form any uniform rule of qualifications for all States"; and that "it would be very hard and disagree- able for the same persons, at the same time, to vote for representatives in the State legis- was: lature, and to be excluded from a vote for those in the National Legislature." Colonel Mason observed that some of the States had "extended the right of suffrage beyond the freeholders," and that "a power to alter the qualifications would be a dangerous power in · the hands of the Legislature" (Congress). He thought property qualifications should not be confined to ownership of land. Mr. Ellis- worth found difficulty in defining the freehold and favored giving to "every man who pays a tax" the right "to vote for the repre- sentative who is to levy and dispose of · his money." "Taxation and representation ought to go together," he said. James Madison was undecided "whether the constitutional qualification ought to be freehold,·· but said the right of suffrage ought not to be left to be regulated by the Legislature (Con- gress). Mr. Rutledge opposed "restraining the right of suffrage to the freeholders." Mr. Morris' proposed amendment was defeated and the section in its present form was adopted by the Convention.

It is obvious from the discussion by the members of the convention that the words "right of suffrage" were considered by them as synonymous in meaning with "qualification of electors ~ · as used in section 2 of article I.

And this interpretation of "qualifications" of voters or electors has persisted to the present time. Volume 29 of Corpus Juris Secundum-1941-in the article on “Elec- tions," carries as its second main heading the words "Qualifications and Disqualifica- tions of Voters." Under this there are vari- ous requisites of qualification discussed. Section 28, page 50, under the subheading "Property," states that "unless required by the constitutions or by valid statutory regulations the ownership of property is not a qualification for voting." Section 29, page 51, has the subtitle "Payment of Taxes," and states that "unless required by the constitu- tion or statutes payments of taxes is not a qualification for voting." And note 37, page 52, contains this statement: "Constitutional amendment qualifying electors who have paid poll taxes to vote 'at any election' was held to include municipal elections." And likewise, in 18 American Jurisprudence- 1938-in the article on "Elections," under the main heading "Electors," and the subheading "Qualifications," the article treats of the various requisites of voting qualifications, among them being citizenship, age, sex, and residence. The 7th requisite considered is entitled "Ownership of Property," and in section 70, page 225, it is stated that, unless prohibited by the constitution of the State, its "legislature may prescribe property qualifications." The eighth requisite considered in said article is entitled "Payment of Taxes," and in section 72, page 227, appears this sentence: "Whether the adoption of the 19th amendment to the Federal Constitution had the effect of rendering women subject to a poll tax qualification theretofore applicable to men only is a question which has been answered in the affirmative in some jurisdictions and in the negative in others." The word "qualification" is used in this article in referring to the payment of poll taxes and other taxes as a prerequisite to the right to vote.

It is clear, therefore, that from the time of the foundation of our Government and up to and including the present, the requirement of payment of a tax as a prerequisite to the right of suffrage has been deemed a suffrage "Qualification." But the power of the State to so condition suffrage is not dependent upon the meaning of the words "Qualifications of Electors," as will appear from the following discussion of the fourth proposition.

Justice Staples' fourth proposition 4. Even if the requirement of the payment of a poll tax be deemed not to be a "qualification" of electors it is nevertheless a proper exercise of the reserved powers of the States over suffrage, as well as of the taxing powers of the States.

His brief in this regard said:

It is essential in determining the power of the States over suffrage-that is, on what classes of persons the State will confer the : privilege of . voting-tq keep in mind the nature of the action taken by the several States in formulating and adopting the Federal Constitution. It is elementary that the States were not conferring powers on themselves. They already possessed absolute sovereign powers. Some of these powers they were contemplating surrendering or granting to the proposed Federal Government. Such as they would not grant, obviously they would retain, but, to remove · any possible doubt on this point, they adopted the lOth amendment expressly providing for such reservation of powers not delegated. When the Constitution was adopted, each State :Possessed and exercised unlimited power over suffrage, generally prescribing some qualification or condition such as ownership of property or payment of taxes. In Minor v. Happersett, C8 U.S. (21 Wall.), 162, 22 L. ed. 627, 629-630, Mr. Chief Justice Waite thus stated the suffrage requirements contained in the various State constitutions at the time of the adoption of the Federal Constitution:

"Upon an examination of those constitutions we find that in no State were all citizens permitted to vote. Each State determined for itself who should have that power. Thus, in New Hampshire, 'Every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of 21 years of age and upwards, excepting paupers and persons excused from paying taxes at their own request,' were its voters; in Massachusetts 'Every male inhabitant of 21 years of age and upwards, having a freehold estate within the Commonwealth of the annual income of 3 pounds, or any estate of the value of 60 pounds'; in Rhode Island 'Such as are admitted free of the company and society' of the Colony; in · connecticut such persons as had 'Maturity in years, quiet and peaceable behavior, a civil conversation, and 40 shillings freehold or 40 pounds personal estate,' if so certified by the selectmen; in New York 'Every male inhabitant of full age who shall have personauy · resided within one of the counties of the State for 6 months immediately preceding the day of election • • • if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of 20 pounds within the county, or have rented a tenement therein of the yearly value of 40 shillings, and been rated and actually paid taxes to the State'; · ln New Jersey 'All inhabitants * * * of full age who are worth 50 pounds, proclamation money, clear estate in the same, and have resided in the county in _ which they claim a vote for 12 months immediately preceding the election'; in Pennsylvania 'Every freeman of the age of 21 years, having resided in the State 2 years next before the election, and within that time paid a State or county tax which shall have been assessed at least 6 months before the election'; in Delaware and Virginia •as exercised by law at present'; In Maryland 'All freemen above 21 years of age having a freehold of 50 acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of 30 pounds current money, and having resided in the county in which they offer to vote 1 whole year next preceding the election'; in North Carolina, for Senators, 'All freemen of the age of 21 years who have been inhabitants of any one county within the State 12 months immediately preceding the day of election, and possessed of a freehold within the same county of 50 acres of land for 6 months next before and at the day of election,' and for members of the House of Commons 'All freemen of the age of 21 years who have been inhabitants in any one county within the State 12 months immediately preceding the day of any election, and shall have paid public taxes'; in South Carolina 'Every free white man of the age of 21 years, being a citizen of the State and having resided therein 2 years previous to the day of election, and who hath a freehold of 50 acres of land, or a town lot on which he hath been legally seized and possessed at least 6 months before such election, or (not hav· ing such freehold or town lot) hath been a resident within the election district in which he offers to give his vote 6 months before said election, and hath paid a tax the preceding year of 3 shillings sterling toward the support of the government'; and in Georgia 'Such citizens and inhabitants of the State as shall have attained to the age of 21 years, and shall have paid tax for the year next preceding the election, and shall have resided 6 months · within the county.'

“In this condition of the law in respect to suffrage in the several States, it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed if intended, would have been expressly declared."

Thus were the various States · exercising their sovereign powers with respect to conferring the right of suffrage upon their citizens. Whether the requirements to be met in each State be termed a "qualifications of electors" or be referred to by any other term or word or words, the States possessed and exercised the unlimited power over suffrage and the granting of the voting privilege. In adopting the Federal Constitution, the States did not grant to Congress any of their powers over suffrage. They did, however, in article I, section 2, restrict their own powers over suffrage requirements of electors for their congressional representatives so that they could not prescribe for such electors "qualifications" different from the ones prescribed for those entitled to vote for the popular branch of their own legislatures. If the payment of a tax as a prerequisite to the right of suffrage is a "qualification," then the States must prescribe the same requirement for both classes of electors referred to in section 2. If, however, it is not a qualification, then the States undoubtedly have the power to require the payment of the tax for those voting for their Members of Congress and Senators, without requiring it of those voting for members of their legislatures. It is obvious that the broader the meaning of the term "qualificat i ons of electors" the greater the restriction imposed on the suffrage powers of the States by section 2, because the restriction applies only to "qualifications." The power of the St a tes to impose conditions or requirements of suffrage other than "qualifications" is in no way restricted by section 2, or by any other provision of the Constitution as origin a lly adopted. And this interpretation of section 2 merely as a restriction upon State power was adopted in the Classic case, supra, as appears from the following language in the opinion:

"Such right as is secured by the Constitution to qualified voters to choose Members of the House of Representatives is thus to be exercised in conformity to the requirements of State law subject to the restrictions prescribed by section 2 and to the authority conferred on Congress, by section 4, to regulate the times, places, and manner of holding elections for Representatives." (313 u.s . 310 . )

The absolute power of the States over suffrage requirements, except as restricted by article I, section 2, and by the 15th and 19th amendments, has been repeatedly asserted by the Supreme Court. and never questioned in any of its decisions. The powers of the States are thus stated in United States v. Reese, 92 U.S. (2 Otto) 214, 23 L. ed. 563, "The 15th amendment does not confer the right of suffrage upon anyone. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another, on account of race, color, or previous condition of servitude. Before its adoption, this could be done.

"It was as much within the power of a State to exc l ude citizens of the United States from voting on account of race, etc., as it was on account of age, property or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guarantee against this discrimination; now there is."

And this principle is likewise clearly reaffirmed in Breedlove v. Suttles, supra, the Court saying: "Privilege of voting is not derived from the United States, but is conferred by the State and, save as restrained by the 15th and 19th amendments, the State may condition suffrage as it deems appropriate." The only constitutional provision restricting the State's power over suffrage other than the two amendments referred to is section 2 of article I, and if the requirement of a poll tax payment is not a "qualification," then that section has no application.

But the requirement of p a yment of the poll tax as a prerequisite to the privilege of voting is the valid exercise of the taxing power of the State, as well as the suffrage power. In the Breedlove case the Court said: "'Exaction of payment before registration undoubtedly serves to aid collection from electors desiring to vote, but that use of the State's power is not prevented by the Federal Constitution." The proponents of legislation on this subject do not point out any power conferred on Congress thus to interfere with the States' exercise of their taxing powers. Alexander Hamilton did not con.sider that Congress was being given any such power, for he said, in No. XXXIII of the Federalist, that a law passed by Congress­ "abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of a power not granted by the Constitution." The proceeds from poll taxes in Virginia are used for the purpose of operation of public schools, and there are many persons whose children are in the schools who pay no other tax or make any other contribution to them. The obstruction to the collection of - these revenues cannot be justified by an~ power conferred on Congress by the Constitution. ·

It is clear, therefore, that Congress possesses no power to regulate or interfere with the exercise by the States of their power to prescribe suffrage requirements, or of their power to lay and collect the poll The fifth proposition in Justice Staples' brief will next be considered. It held that:

5. The Constitution protects the right to vote of only those who are qualified to vote under State statutes.

His reasoning was as follows:

The excerpts from the opinions in the Cl a ssic case, supra, and the four cases therein cited, and from the Breedlove case, which have been heretofore quoted in this statement, conclusively show that, so far as decisions of the Supreme Court can be considered an authoritative interpretation of the Constitution, the right of a person to vote for his State's Representatives and Senators in Co n gress depends upon whether the State has conferred upon him the privilege of voting for members of the most numerous branch of the legislature of the State. When that privilege has been so conferred on him, then, and not until then, does the Constitution give him the right to vote for these Federal Representatives and Senators. It is, therefore, unnecessary to repeat what has already been so clearly expressed in the opinions referred to, but attention is again directed to the fact that within the last year the Supreme Court has, in effect, reaffirmed those decisions by its refusal to grant a writ of certiorari in the case of Firtle v. Brown, supra.

Justice Staples' last proposition, the sixth, was:

6. Whether a State has exercised its constitutional power to prescribe the qualifications of electors in an unconstitutional manner so as to deprive citizens of rights guaranteed to them by the Constitution is a judicial question, and is for the courts, not the Congress, to determine.

While such a proposal is not directly before us at this time, there are those who currently contend that the Federal Government can outlaw State qualifications for voting by statute.

On this general proposition, Justice Staples said:

Those arguing in favor of the constitutionality of Federal statutory restraint in this area lay much emphasis upon the fact that the right to vote for a State's Senators and Representatives in Congress is derived from the Constitution. This principle is not new, but, as above pointed out, was laid down in the Yarbrough case in 1884. It has been seized upon, however, as the basis of a claim that it constitutes a new source of congressional regulatory powers over suffrage. But this contention is not new. It was thus answered in Newberry v. U n ited States, 256 U.S. 232, 249:

"We find no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from section 4. The Government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."

That Congress may enact laws to protect the right to vote for Federal representation of persons - entitled to vote for - State legislators is not denied by anyone. But protecting the right to vote and · conferring such 583 . ) a right are essentially different powers. The first has to do with regulating the machinery for holding elections, the latter relates solely to suffrage. The first power was by the Constitution conferred by the States on their own legislators in section 4 of article I, subject to the supervisory regulation of Congress, while the right of suffrage was wholly reserved to the States to be controlled primarily by State constitutions, subject only to the restriction that the qualifications of voters for State legislators and Federal representatives be the same. The . Constitution conferred no supervisory power on Congress over the actions of the States in prescribing suffrage requirements. And there was no reason why it should. The representatives sent by a State were to be . its own representatives, not those of other States, so why should the latter dictate the suffrage requirements of the former? The debates of the convention show that it was the intention that the Senators, especially, should represent the interests of the States, as such, and safeguard against Federal usurpations of power or encroachments on the powers reserved to the States. The Supreme Court has emphatically stated that U.S. Senators "cannot properly be said to hold their places 'under the Government of the United States.' " Burton v. United States, 202 U.S. 344, 369. The reason Congress was given supervisory power over the time, place, and manner of holding elections for representatives was that it was feared some of the State legislatures might fail to provide election machinery and the Congress might die for want of adequate membership. The debates clearly show this, and that the fear arose from the action of the Rhode Island legislature in failing to provide for the selection of its Members in the Congress of the old confederation.

It is also argued by some that the poll tax qualification results in fraud, in that some persons buy up poll tax receipts for others and thus influence their votes . This may or may not be true. But even if it is, buying up fraudulent receipts and presenting them at elections is not a compliance with the laws here sought to be annulled, but is a violation of same. Furthermore, it is an act committed in the holding of the election, and Congress possesses ample power to prevent and punish such acts under section 4. Is it not common knowledge that fraudulent acts in connection with elections occur on a much larger scale in States other than those here under attack?

If the State laws under attack operate as a fraud on the United States, the courts have ample jurisdiction so to find and apply the appropriate remedy. But the c . courts have unanimously held exactly the opposite, including the Supreme Court (in denying certiorari in Pirtle v. Brown, supra). Protection of constitutional rights is primarily a judicial function and it is for the courts to say whether they have been violated.

It is argued that James Madison was in favor of universal suffrage at the time of the convention. The argument is not supported by his statements, and his native State of Virginia at that time a property qualifica- tion which he seemed to favor in the con- vention, as above pointed out. In the Virginia Constitutional Convention of 1829 , in advocating · the extension of suffrage to housekeepers and heads of families, he said: "It would be happy if a state of society could be found or framed, in which an equal voice in making the laws might be allowed to every individual bound to obey them. But this is a theory which, like most theories, confessedly requires limitations and modifications. And the only question to be decided, in this as in other cases, turns on the particular degree of departure, in practice, required by the essence and - object of the theory itself.” (Elliot’s Debates, vol. V, p. Another argument advanced by some in denial of the State's exclusive power over suffrage is that they might say that only Democrats or only Republicans may vote, or that only a certain religious sect could exercise that privilege. Such arbitrary ac- tion would be an obvious denial of the equal protection of the laws (14th amendment), and the courts would undoubtedly so hold. But the courts have unanimously held that the poll tax qualification does not deny equal protection.

Extravagant statements are made to the effect that it is necessary for Congress to possess the power of supervising suffrage in order to preserve the existence of the Government. The answer is that the Government has existed and prospered since its beginning without any such congressional power and has grown into the richest and most powerful one in the world, although during a large part of that time a great number of States had poll tax or ture. similar voting qualifications.

The argument is made to the effect that although the States formerly possessed the power to prescribe a property qualification or one requiring payment of taxes, the Constitution has undergone a metamorphosis in recent years and this power has disappeared. They would reverse the time honored principle that the long undisputed exercise of powers is the best test of their possession and substitute in its place a rule that the sovereign powers of the States have but a lifespan and perish with age, instead of becoming more firmly fixed and rooted.

Madam President, I have read to Senators the remarkably fine statement made by one of the leading members of the Supreme Court of Virginia, Justice Staples.

Mr. STENNIS. Madam President, while the Senator is on that point, will he yield to me for a question?

Mr. BYRD of Virginia. I yield.

Mr. STENNIS. In connection with article I, section 2, of the Constitution, I should like to ask the Senator whether he believes that if the proposed amendment becomes a part of the Constitution, he thinks it would be possible to have two sets of electors, that is, a list of electors for State elections and another list of electors for so-called Federal elections?

The reason I ask the question is that, as the Senator knows, it has been argued that having two such lists would be practicable. Does the Senator think that it would; and, if so, why?

Mr. BYRD of Virginia. I think it would be very impracticable. I would not say that it would be absolutely impossible, but it would so confuse the voters, in my opinion, that we would not obtain the direct expression from the people that we should get. It would be confusing to have two lists of votersone set of electors for Federal officials way? and one set for local and State officers.