March 22, 1962 (3)

Mr. STENNIS. Is it not true that it would be very disconcerting and confusing, not only at the election itself but in the campaigns, for the people to have two such lists, with the attendant uncertainty as to who would be eligible to vote in each election?

Mr. BYRD of Virginia. I do not think it would be practicable at all. As the Senator knows, I have been in public life for almost 50 y ears. To have two sets of voters I think would be thoroughly confusing to the people of the State. It would interfere with the judgment of the people in their attempt to indicate by their ballots their choices. Certainly they would be confused if there were two lists of electors.

Mr. STENNIS. Is it not true that the resulting confusion would detract from good government and clear understanding on the part of the people rather than make for strong Government?

Mr. BYRD of Virginia. I agree with the Senator.

Mr. STENNIS. I should like to ask the Senator another question. It is not a legal question but a question of logic. Article I, section 2, of the Constitution now states:

The Electors in each State shall have the Qualifications requisite for · Electors of the most nume ro us Branch of the State LegislaIf the State of Virginia had a so-called State list, under the direct language and mandate of the Constitution, would that not be the sole and only legal list, since the provision states:

The Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Mr. BYRD of Virginia. The Senator from Mississippi is a very great lawyer. Of course, I am not a lawyer, but I can certainly agree with him. I think it would be utterly confusing to have two lists of voters. There probably would be litigation, and in other respects it would be exceedingly confusing to elect the members of the General Assembly of Virginia with the use of one list and then elect a U.S. Senator or a Representative through the use of another list.

Mr. STENNIS. I do not mean to be personal about this point. I shall put what I have to say in the form of a question. I am sure that the Senator well remembers that when he was Governor of Virginia, he proposed a consolidation of many of the powers of government and the elimination of others from the State constitution. In effect, the voters of Virginia rewrote the constitution of Virginia and made it plainer and clearer, with more limited issues to be presented to the people. Is that not correct?

Mr. BYRD of Virginia. The Senator is correct.

Mr. STENNIS. Viewing the situation from a distance, does not the Senator think that time has proven the move was a most salutary one, that the people approached the question in a sound, capable way, and that they can approach the present problem, and whatever goes with it, in the same satisfactory and logical

Mr. BYRD of Virginia. I would not want to compliment my own administration as Governor.

Mr. STENNIS. Under the rules of the Senate I am not permitted to do so at this moment, but I wish the Senator from Virginia would comment on the subject.

Mr. BYRD of Virginia. The fact is that the State of Virginia is one of the few States in the Union that have ever adopted a constitution by submitting to the people for vote 87 proposed changes in an outmoded constitution that was adopted in reconstruction days, rather than through a constitutional convention. We were very _ successful in that procedure. The electorate understood what was being done. It was discussed, and I think the procedure was a much more democratic way of amending or changing the constitution than the calling of a constitutional convention, which would have sole power, as the Senator from Mississippi knows, to do what it pleased without being controlled by the electorate.

The process worked very successfully. If confusion results through our being required to have two lists of voters, I think an intolerable condition will result. The poll tax was reenacted in Virginia by a very large majority in 1928. It is my frank opinion that if the question of repealing the poll tax in Virginia for the right to vote for State and local officers, were submitted now to the people of Virginia, the proposal would be defeated. The money received from the poll tax, which is more than $1,600,000 goes to the operation of the public schools. Every cent of it goes to the public schools. A list of voters is provided, which prevents any question of improper registration and things like that. The procedure has worked very successfully with reference to the poll tax. I do not think it is unreasonable to ask a man or woman to pay $1.50, which goes to help educate his own children, for the privilege of voting. As the Senator from Mississippi has mentioned, we have no restrictions on registration.

While there is much talk about having 2 lists of voters, we know that we cannot control what the people back home will do. We do not know whether or not they would repeal the poll tax for the right to vote for local, county and State officers.

Mr. STENNIS. Is it true or not that in the Senator's State considerably more people pay the poll tax than vote in some of the elections in Virginia?

Mr. BYRD of Virginia. The Senator is correct.

As the distinguished Senator from Florida pointed out, there is a small vote in Virginia. But I think the real test about the voting restrictions, if there be such in Virginia, is with respect to those who are qualified to vote. There are ideas. 1,200,000 who are qualified to vote. It is true that they do not all vote, and I doubt that all who are qualified in other States to vote do so. Approximately 125,000 colored people in Virginia pay the poll tax. There is not the slightest effort to keep them from voting. A total of approximately $1,800,000 is collected through the poll tax, every dollar of which goes to the public schools.

Mr. STENNIS. Madam President, will the Senator yield for one more question?

Mr. BYRD of Virginia. I yield.

Mr. STENNIS. I put my statement in the form of a question in order to comply with the rules. - Does the Senator know that one of the great good fortunes in the life of the Senator from Mississippi was that while the Senator was Governor of Virginia, the Senator from Mississippi was a law student at the University of Virginia and received the inspiration of the Senator's leadership, guidance, and sound doctrine at that time?

Mr. BYRD of Virginia. I am glad that the University of Virginia had the honor of having the Senator as a student.

Mr. STENNIS. I thank the Senator from Virginia for yielding to me.

Mr. BYRD of Virginia. I continue with my statement.

In this connection, a very informative brief on the subject of the rights of individual States to establish their own voting qualifications was prepared some years back by the Honorable Frank J. Looney, of Louisiana.

Mr. Looney, at the time he prepared the brief, was chairman of the Democratic State Central Committee of Louisiana, and I am informed that he enjoyed the reputation of being a fine, able, and distinguished member of the Louisiana bar.

Mr. Looney's brief went to the very point of the present proposal to abolish the poll tax as a prerequisite for voting by constitutional amendment.

It is significant that Mr. Looney's brief was prepared after Louisiana had, by its own determinatior, eliminated the poll tax as a prerequisite in that State for voting. As a foreword to his discussion of the subject, Mr. Looney said:

QUALIFICATIONS OF VOTERS FOREWORD

Very recently a southern Member of the United States Senate appeared on the radio to champion his bill to abolish the poll tax as a qualification for voting in Federal primaries and general elections. He made two statements for which he offered no proof in law, logic, or fact, except United States v. Classic. The first statement was: There are three ways to abolish the poll tax (or was it to fix Federal qualifica tiona for electors?)­ the first by the State constitution; second, by State legislature; third, by Congress. The other statement was that there were two viewpoints as to whether or not Congress could fix qualifications for voters in State or local elections.

As to the first statement, he showed his preference by advocating Federal enactment of his bill. On the other proposition he expressed no opinion.

The purpose in this pamphlet is not to challenge the patriotism or intellectual qualifiactions of any Senator, but to attempt to provide data to set straight on a fundamental matter all who may entertain these The Constitution of the United States, article I, section 2, clause 1; said:

"SEcTioN. 2. 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."

This section was in the original Constitution, as adopted in convention September 17, 1787, and has never been amended in any way. On the contrary, it has been fortified by the seventeenth amendment, the first clause of which reads:

"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." The identity of the language as to qualifications shows no intention of changing one iota from the purposes of 1787. So that the same standard is to be understood as being accepted in 1787 and in 1912-13, or during and after 126 years. This is significant; especially in view of the fact that suffrage occupied the public and national mind as of utmost importance in 1869-70, as is evidenced by the fifteenth amendment, which did not pretend to fix qualifications for voters, but denied the State and the United States the power to abridge or deny the right of citizens to vote on account of race, color, or previous condition of servitude. There is no suggestion that a State should be prohibited from denying the right to vote for nonpayment of a tax.

We furthermore find language in the fourteenth amendment, 1866-68, which recognizes the right of States to deny the right to vote to male citizens, but penalize those States by reducing the basis of representation. See section 2, fourteenth amendment. Section 3 of this amendment distinguishes between electors and elected and imposes a disability (which could be and has been removed by Congress) merely against officials. The nineteenth amendment prohibits denial or abridgement of the right to vote on account of sex. This is the last constitutional provision dealing with suffrage, and again omits all reference to nonpayment of taxes.

The original Constitution in article ll, section 1, clause 2, goes even further in delegating power to the States over selection of electors for President and Vice President. It reads:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors."

Clause 3 of the same article thus deals with the power of Congress in this matter, and in a limitative manner:

"The Congress may determine the Time of chusing the Electors and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." The 12th amendment provides the manner in which these electors evidence their votes, and, in event no person shall have received a majority, requires the House of Representatives to choose · by ballot, from the three highest voted for by the electors, the President. It preserves the original language, changing only the spelling of "chusing," and provides, "But in choosing the President, the votes shall be taken by states, the representation from each state having one vote."

The 20th amendment, which deals with the power only of the President and Vice President, Senators, and Representatives, amends portions of article n, section 1, clause 2, of the Constitution, but nowhere touches on the qualification of voters who should choose electors.

It is interesting and proper to note the accuracy of the language employed, both in the original Constitution and in the amendments, and especially · where the word "manner" is used.

The 12th amendment provides the manner in which these electors evidence manner as the legislature thereof may direct, a number of "electors." The word "elect" is nowhere used, and the manner of making the appointment and all matters incidental thereto, except as to times and days heretofore mentioned, are left to the discretion of the State legislatures. The selection of electors · is a function of the State, and the State is the recognized unit where the selection of a President is left to the House of Representatives. This has been emphatically asserted by the Supreme Court of the United States and will be shown in another part of this discussion.

The word "manner" has a different application in article I, section 4, clause 1, which reads, as in the original: .

"SECTION 4. 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, except as to . the Places of chus­ • * * " ing Senators."

This clause refers to "holding elections" only. In no way does it deal with the qualification of voters. Obviously, the members of the Constitutional Convention saw and made a clear distinction between what may be called the mechanics of elections, or r a ther, the mechanism, and the persons of electors.

Article I, section 5 , clause 1, still as origi na lly written, reads: "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members." Again d i stinguishing between the electors and the elected, as to qualifications. In another chapter the congressional interpret a tion of these sections will be treated.

Mr. Looney reviewed qualifications of voters in the Thirteen Colonies, as follows:

A reference to any standard encyclopedia will show the investig a tor that in the Colonies, both at the time of holding the Constitutional Convention and anterior thereto , provision was made as to qualification of voters. There were property qualifications in Connecticut, Massachusetts, Rhode Island, Delaware, New Jersey, New York (except in New York City and Albany), Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia; religious qualifications in Massachusetts, New York, and some others at times; limitation of suffrage to native-born subjects of England in Pennsylvania; to Englishmen or descendants and French Huguenots in South Carolina; and male suffrage only, in Virginia.

In 1787 all of the States required payment of taxes on real or personal property, and most of them required the ownership of a fairly valuable estate as a qualification for Governor, senator, or representative in the State legislature. A rather full statement of these provisions as to property and taxpaying qualifications is to be found in Minor v. Happersett (21 Wall. (U.S.) 162, 172-173). .

There was nothing in the Constitution as adopted to abridge or add to qualifications of voters in any State, but this subject was left in the hands of the States, with a full knowledge of the members of the Convention as to the different requirements in the different States.

In regard to the Articles of Confederation, Mr. Looney said:

For the reason that the Constitutional Convention distinguished between the manner of holding elections or making appointment of electors, or "chusing" Senators by legislators, attention is directed to the provision in the Articles of Confederation which were adopted July 9, 1778.

"Article v. For the more convenient management of the general interest of the united states. delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on . the first Monday in November, in every year, with a power reserved to each state, to recal its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year."

"In determining questions in the united states, in Congress assembled, each state shall have one vote."

This in the midst of war, shows how je !l. jealously each State guarded its right to' provide the qualifications of those who voted and who represented it and its pe · people, and the phraseology served as a guide , and in at least one instance as a model , to - be followed in preparing the Constitution. Compare article II, section 1, clause 2: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, Mr. Looney then summarized the proceedings in the Constitutional Convention, as follows:

When the Convention assembled, several members of the body offered drafts of constitutions. In order to provide a ready reference, the following citations will be of pages of Form a tion of the Union , a Government publication is s ued in 1927 under House Concurrent Re s olution No. 23 of date May 10, 1926.

1. Edmund Randolph ' s plan, presented May 29, 1787 (p . 116):

"4. Resolved, That the members of the first branch of the Nation a l Legislature ought to be elected by the people of the sever a l States :;~? --- · ye a r for the term of ---, Alexander H a milton's plan presented June 18 , 1787 (p. 979) after providing for an "assembly" and a s e nate a s the legislature of the United St a tes :

"11. The assembly to consist of persons elected by the people to serve for 3 years."

In Charles Pinckney ' s draft, article III, read: " 'The members of the House of Deleg a tes shall be chosen every --- · year by the people of the several States; and the qualifications of the electors shall be the same as those of the electors in the several States for their legislatures." (This language is not found in Formation of the Union, where the plan is skeletonized, p. 664, but in Elliott's Debate, 2d ed.) The language as to qualifications seemed to have influenced the phraseology used in the Constitution which substituted "electors of the most numerous branch of the State legislature" for "the i r legislatures."

After consider i ng different plans and proposals affecting the qualifications of electors, the Committee of Detail to whom the plans and resolutions had been referred, on August 6, submitted its report (p. 471). Under article IV, section 1, they recited, "The Members of the House of Representatives shall be chosen every second year by the people of the several States comprehended within this Union . The qualification of the Members shall be the same from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures. " A comparison with article I, section 2, clause 1, shows the above idea abbreviated and made more concise. -

The Committee of Detail were: Rutledge , of South Carolina; Edmund Randolph, of Virginia; Nathaniel Gorham, of Massachusetts, who was chairman of the Committee of the Whole; Oliver Ellsworth and James Wilson, of Pennsylvania. John Rutledge was offered a place on the first U.S. Supreme Court and was afterward appointed Chief Justice. Edmund Randolph was Washington's first Attorney General. Oliver Ellsworth was Chief Justice of the Supreme Court. J a mes Wilson was a member of that Court. The legal ability of their fitness to distinguish between shades of meaning in words employed to state a legal requirement cannot be questioned.

In the convention notes of Rufus King of date August 7 ("Formation of the Union," p. 873) , when the phrase "Electors to be the same as those of the most numerous branch of the State legislature," King quotes Morris, who offered as an alternative, "to add a clause · giving to the National Legislature powers to alter the qualifications." Whereupon Ellsworth said, "If the Legislature( i.e., Congress) can alter the qualifications they may disqualify three-fourths, or a greater portion, of the electors. This would go far to cre a te aristocracy-the States have staked t h eir liberties on the qualifications which w e have proposed to confirm."

John • Dickinson wished to confine . the electors to freeholders, saying, "not from freeholders but from those who are not freeholders, free governments have been endangered" (pp. 873-874); and Madison said "I am in favor of entrusting the right of suffrage to freeholders only" (p. 874).

On August 8 the discussion being con· tinued, Gorham spoke as follows: "The qualific a tions (being such aa the several States prescribe for electors of their most numerous branch of the legislature) stand well. * * * There is no risk in allowing th e m e rch a nts and mechanics to be electors they have been so time immemorial in this country and in E n gland. We must not disregard a rd the habits, usages, and prejudices of the p e ople" (pp. 815-816). . . In M a dison ' s own notes, August 17 , 1787 (p . 487), he reports Mr . Gouverneur Morris "Another objection against the claU E e as it stands is that it makes the qualifications of the Nat i onal Legislature depend on the will of the States, which he thou g ht not proper." On this same date he reports James Wilson as stating. "This part of the report was well cons i dered by the committee, and he did not think it could be chan g ed for the better It was difficult to form an y rule of qualifica- t i ons for all the State s . Unnecessary innovations, he thought, too, should be avoided. It would be hard and disagreeable for the same persons at the same time, to vote for representatives i ves in the State legislature and to be excluded from a vote for those in the National Legislature" (p. 487). Madison also reports, "Mr. Ellsworth thought the qualifications of the electors stood on the most c t proper footing. The right of suffra g e was a t e nder point, and strong l y guarded by m_ os t of the State constitutions. The people W i ll not readily subscribe to the N a tion a l Constitution if it should subject them to be disfranchised. The States are the best jud g es of the circumstances !> t a :n ces and temper of th e ir o w n people" (p . 487). _ · Dr. Franklin said among other things: "He did not think the elected had any right in any case to narrow the pr i vilegeE of the elec­ tors” (p. 491) . "Mr. Rutled g e thought the Idea of . restraining the right of suffrage to the freeholders a very unadvised one" (p. 491). There may be those who will insist that these arguments are based on the fear that the power vested in the National Legislature, or m other words "the elected," might disfranchise, rather than enfranchise, but it is plain that the sword is two-edged, and Congress being without the power by fixing qualifications to diminish the number of electors, is equally without power to increase the electorate.

The Attorney General of the United States and these three appointees to the Supreme · e Court of the United States being of one mind in understanding the phrase "electors to be the same as those of the most numerous . branch of the State legislature,” how can a contrary interpretation be honestly accepted by any intelligence, 155 years thereafter? _ Mr. Looney quoted from Federalist Paper No. 52, as attributed to Alexander Hamilton, as follows:

"I shall begin with the House of Representatives * * • The first view to be taken of this part of the Government, relates to the qualifications of the electors and the elected.

"Those of the former are to be the sam · e with those of the electors of the most numerous branch of the . State legislatures. The definitions of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the Convention, _ tion, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation · of the Congress would have been improper for the reason just mentioned. • * * The provision made by the Convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State; because it is conformable to the standard already estab- lished or which may be established by the State itself" (p. 290).

The above was written by Hamilton, according to that best of authorities, General Washington. Hamilton believed not only in centralized government but in monarchical government, and we cannot charge him with States rights which influenced his explanation of the clear language of the Constitution and its exclusive-its properly exclusive-meaning.

In contrast to the provision for electors, the Federalist, No. LII, discusses the "elected": "The qualifications of the elected, being less carefully and properly defined by the State constitution, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the Convention" (p. 291).

Continuing, Mr. Looney said:

In the State conventions held to consider adoption of the Constitution, there were no resolutions criticizing the phrase, "the Electors in each State shall have the Qualifications requisite for Electors in the most numerous Branch of the State Legislature." There were, however, evidences of dissatisfaction with the concluding language of article I, section 4, clause 1, referring to times, places, and manner of holding elections, and which read, "but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Massachusetts, on February 7, 1788, recommended "That Congress do not exercise the powers vested in them by the fourth section of the first article, but in cases where a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress agreeably to the Constitution." (Elliott's Debates, 2d ed., p. 54.)

South Carolina, on May 27, 1788: "And whereas it is essential to the preservation of the rights reserved to the several States, and the freedom of the people, under the operations of the general government, that the right of prescribing the manner, time, and places of holding the elections to the Federal legislature, should be forever annexed to the sovereignty of the several States: This Convention doth declare, that the same ought to remain to all posterity, a perpetual and fundamental right in the local, exclusive of the interference of the general government, except in cases where the legislatures of the States shall refuse or neglect to perform and fulfill the same, according to the tenor of the said Constitution." (Elliott's Debates, 2d ed., p. 350.)

New York on July 26, 1886, "in full confidence • • • that the Congress will not make or alter any regulation in this State, respecting the times, places, and manner of holding elections for Senator or Representative, unless the legislature of this State shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same" (Elliott, 2d ed., p. 363) .

Rhode Island, on May 29, 1789, copied without change the New York declaration, and added after the final word there, a comma and the words "and that in those cases such power will only be exercised until the legislature of this State shall make provision in the premises."

Decisions of u.s. courts were reviewed by Mr. Looney to the following exte:_t: Bradley, Circuit Justice, in Federal Case No. 14, page 897, U.S. v. Cruikshank, speaking of the 15th amendment, declares, "It does not confer the right to vote. That is the prerogative of the State laws. It only confers a right not to be excluded from voting by reason of race, color, or previous condition of servitude, and this is all the right that Congress can enforce. It confers upon citizens of the African race the same right to vote as white citizens. It makes them equal. This is the whole scope of the amendment. The powers of Congress, therefore, are confined within this scope." And, again, "It is not the right to vote etc." which is guaranteed to all citizens. Congress cannot interfere with the regulation of that right by the States except to prevent, by appropriate legislation, any distinction as to race, color, or previous condition of servitude. The State may establish any other ing. conditions and discriminations it pleases, whether as to age, sex, property, education, or anything else." (Of course, "sex" has been added by the 19th amendment.) This case was decided in 1874.

In 1875, the case of U.S. v. Reese (92 U.S. 214) was decided by the Supreme Court of the United States, wherein, on page 217, the Court said, "The 15th amendment does not confer the right of suffrage upon anyone • • • ." This case is of particular interest because of the discussion of the capitation tax in the dissent of Justice Clifford. Justice Clifford thus states the Kentucky law, "Such citizens, without distinction of race, color, or previous condition of servitude, in order that they may be entitled to vote at any such election (i.e., a municipal election) must be free male citizens over 21 years of age, have been a resident of the city at least 6 months, and of the ward in which he resides at least 60 days prior to the day of election, and have paid the capitation tax assessed by the city on or before the 15th of January preceding the day of election • • •" (92 U.S., p. 226). "Payment of the capitation tax on or before the 15th of January preceding the day of the election, is, beyond all doubt, one of the prerequisite acts, if not the only one referred to in that part of the section." The section referred to is section 3 of the Enforcement Act of Congress of May 31, 1870, 16 Statutes at Large 140. Section 3 of the Enforcement Act is explained by Judge Clifford, page 228, and by the Court's opinion, page 216, as providing, "Whenever, under the constitution and laws of a State, or the laws of a Territory, any act is or shall be required to be done by any such citizen as a prerequisite to qualify to entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, be deemed and held as a performance in law of such act." Judge Clifford further states, page 229, "Obviously, the payment of the capitation tax on or before the time mentioned is a prerequisite to qualify the citizen to vote." And again, page 231, "Had Congress intended by the third section of that act to abrogate the election law of the State creating the prerequisite in question, it is quite clear that the second section would have been wholly unnecessary."

Judge Hunt in his dissent, page 247, says: "By the 2d section of the 14th amendment, each State had the power to refuse the right of voting, at its elections, to any class of persons, the only consequence being a reduction of its representation in Congress, etc. • • • This was understood to mean, and did mean, that if any one of the late slaveholding States should desire to exclude all its colored population from the right of voting at the expense of reducing its representation in Congress, it could do so." Judge Hunt quotes the act of Congress, pages 239-240, and quotes from the indictment in this case, which specifically alleged "that by the · statute · o:f Kentucky to entitle one to vote in an election in that State the voter must possess certain qualifications recited and have paid a capitation tax assessed by the city of Lexington; that James F. Robinson was the collector of said city entitled to collect said tax; that Garner, in order that he might be entitled to vote, did offer • • • to pay any capitation tax, There is a recognition after the passage of the 15th amendment, by the Department of Justice and the courts, as well as by Congress, of the States right to make a capitation or poll tax a prerequisite to voting. 1884, in the Ku Klux cases ( 110 U.S. 651), after quoting article I, section 2, the Court said: "The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures do not do this with reference to the election for Members of Congress, nor can they prescribe the qualifications for voters for those eo nomine. They 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." Later in this decision the Court said: "It is as essential to the successful working of the Government that the great organisms of its executive and legislative branches should be the free choice of the people, as that the original form of it should be."

In 1914, in Guinn v. U.S. (238 U.S. 347), speak i ng of the 15th amendment, the Court said: "It is true also that the amendment does not change, modify, or deprive the States of their full power as to suffrage except, of course, as to the subject with which the amendment deals and to the extent that obedience to its command is necessary. Thus the authority over suffrage which the States possess and the limitation which the amendment imposes are coordinate and one may not destroy the other without bringing about the destruction of both" (p. 362). In stating the Government's contentions, the Court had just previously said: "It (the United States) says State power to provide for suffrage is not disputed, although, of course, the authority of the 15th amendment and the limitation on that power which it imposes is insisted upon" (p. 359). In 1916, in U . S. v. Gradwell (243 U.S. 476), the Court reviewed the acts of Congress in regulating the conduct of congressional elections, and said of this (p. 483): "It will be seen from this statement of the important features of these enactments that Congress by them committed to Federal officers a very full participation in the process of the election of Congressmen, from the registration of voters to the final certifying of the results, and that the control thus established over such elections was comprehensive and complete."

In 1919 in Hawke v. Smith (253 U.S. 221), on page 227, the Court said: "A legislature was then (i.e., in 1787) the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning. Article I, section 2, prescribes the qualifications of electors of Congressmen as those 'Requisite for Electors in the most numerous Branch of the State Legislature.'" And on page 228: "There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the States. When they intended that direct action by the people should be had, they were no less accurate ln the use of apt phraseology to carry out such purpose. The Members of the House of Representatives were required to be chosen by the people of the several States" (art. I, sec. 2).

In 1920, in Newberry v. United States (256 U.S. 232), on page 249, we read, "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 decision then quotes from Judge Iredell (afterward of this Court) in the North Carolina Convention of 1788, "• • • the same observation may be made as to the House of Representatives, since as they are to be chosen by the electors of the most numerous branch of each State legislature, if there are no State legislatures, there are no persons to choose the House of Representatives" (p. 249). On page 255, the Court said, "Section 4 was bitterly attacked in the State conventions of 1787-89, because of its alleged possible use to create preferred classes and finally to destroy the State. • • • Mr. Hamilton asserted, 'The truth is that there is no method o:t securing to the voter 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 o:t 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, LX.) The history of the times indicates beyond reasonable doubt that 1f the Constitution makers had claimed for this section the latitude we are now asked to sanction, it would not have been ratified." (See Story, Constitution, sees. 814, et seq.) It is highly noteworthy that the two authorities above cited, Alexander Hamilton and Justice Story, were perhaps, with Chief Justice Marshall, the most prominent proponents of a strong National Government and in no wise equally strong advocates of State sovereignty.

In 1931, 1n Smiley v. Holm (285 U.S. 355, p. 366), Chief Justice Hughes (Cardo2:a took no part): "The subject matter is the times, places, and manner of holding elections for Senators and Representatives. It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; 1n short to the numerous requirements as to the procedure and safeguards which experience shows are necessary in order to enforce the funda.m.ental rights involved. • • • All this is comprised in the subject o:t times, places, and manner o:t holding elections and involves lawmaking in its essential features and most important aspect." This case involved the power of the Governor to veto a congressional redistricting act passed by the legislature. There the Court said, "At the time of the adoption of the Federal Constitution it appears that only two States had provided for a veto upon the passage of legislative bills. • • • But the restriction which existed 1n the case of these States was well known.

In the same year, in the case of Koenig v. Flynn (285 U.S. 375), the argument of Henry Epstein, late candidate for attorney general and his brief, cosigned by John J. Bennett, contained authorities to sustain their contention that fixing the boundaries of congressional districts "calls for the exercise of the lawmaking function." And the brief of James A. Farley, filed PY Robert F. Wagner and John J. O'Connor, argued that "the phrase 'prescribed in each State by the legislature thereof' means legislation in each State by whomsoever each State has determined to be its lawmaking power."

It is true that the question of qualifications is not raised 1n these cases, but the language of the U.S. Constitution which gives the Congress the power to make oralter such regulations is specifically explained in Smiley v. Holm, which is given as the basis for the Supreme Court's decision in the Koenig case. It is to be noted that not only are qualifications for voters distinguished from tlle time, places, and manner of holding elections, but these latter provisions are in section 4 while the former are in the first clause of section 2 and are part of the same sentence that creates the House of Representatives.

This brings us to the case of United States v. Classic (313 U.S. 299), which has been declared by the U.S. Senator first referred to as an authority for his position. An examination of the facts on which this case was founded refutes any contention that it · even suggests an interference with the right of the States to fix qualifications for voters. Mr. Justice Stone, now Chief Justice, states that "The questions for decision are whether the right of qualified voters to have their ballots counted is a right secured by the Constitution within the meaning of sections 19 and 20 of the Criminal Code, and whether the acts of appellees charged in the indictment violate those sections" (p. 307). On page 308, "The charge • • • was that the appellees conspired • • • to injure and oppress citizens in the full exercise and enjoyment of rights and privileges secured to . them by the Constitution and laws of the United States; namely (1) the right of qualified voters who cast their ballots in the primary elections to · have their ballots counted as cast for the candidate of their choice." It is obvious that the qualifications of voters was not an issue in this case, but the voters involved were unquestioned qualified voters, and the question was fraud in holding a primary election.

On the other hand, in the Classic case, the Court said, "That the free choice by the people of representatives of Congress subject only to the restrictions to be found in sections 2 and 4 of article I and elsewhere in the Constitution, was one of the great purposes of our constitutional scheme of government cannot be doubted" (p. 316). Again, the Court said, "As we have said, a dominant purpose of section 2 so far as the selection of representatives in Congress is concerned, was to secure to the people the right to choose representatives by the designated electors, that is to say, by some form o:t election." The restrictions, of course, are those imposed by the phrase, "The Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch · Of the State Legislature," and "the designated electors" are the electors designated in the same phrase. We may add that as far back as the 14th Congress ( 1815-17) in the case of Potterfield v. McOoy (C. and H. 267, 270), where there had been an agreement between the two candidates as to the classes of voters that were to be admitted, the committee to whom the contest was referred, held that the agreement of parties could not enlarge or diminish the rights of voters and decided the votes to be legal or illegal according to the Virginia law and the House adopted the report of the committee.

In conclusion, Mr. Looney said:

The other question raised was as to the right of Congress to fix qualifications for voters in State or local elections. This matter should be set at rest by the authorities heretofore cited, but the exact matter has been dealt with in a definite manner. First, there 1s nothing anywhere 1n the Constitution itsel:f fixing the qualifications for voters in State elections; second, in three places we find provisions 1n the Constitution that leave to the State or its governmental agencies the determination of the electorate:

(a) Article I, section 2, "The Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," to vote for Representative;

(b) Article I, section 3, clause 1, "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."

(c) "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, etc.," to vote for President and Vice President.

(d) The first and third cited provisions have never been changed.

Article I, section 3, clause 1, has been changed by the 17th amendment and made to conform to article I, section 2, clause 1, by making the same qualifications, to wit: "Electors of the most numerous branch of the state legislatures," the electors of U.S. Senators.

In Hawke v. Smith (253 U.S. 221), the Court said, page 227, "It is not the function of courts or legislative bodies, National or State, to alter the methods which the Constitution has fixed."

In United States v. Cruikshank (92 U.S. 542), page 556 · : "The right to vote in the States comes :from the States; but · the right of exemption from the prohibited discrimination comes · from the United States. The first has not been granted or secured by the constitution of the United States; but the last has been." This decision was · rendered by Chief Justice Waite in 1876. . . .

The same Court at the same term, the same Justice speaking, in United States v. Reese (92 U.S. 214), on page 218, said, "Tlle _ power of Congress to legislate at all upon the subject of voting at S . State elections rests upon this amendment." These decisions were rendered during the days when factions pressed hard for legislation and adjudication that would make the Congress supreme and give it :full jurisdiction over the situation in the South, and the above two cases arose in Louisiana and Kentucky, respectively.

In McPherson v. Blocker (146 U.S. 1), decided in October 1892, the Court considered a · Michigan statute requiring electors for President to be elected by districts instead · of the State at large, and held it valid. In the course of its decision, the Court said, "The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the State." These comprehensive words, "the right to vote," necessarily preclude intervention by Congress and conclude all discussion, so that views contrary to the Supreme Court's continual rulings as to State elections cannot be treated as resting upon logic or law.

Madam President, I yield the floor.