In various States of the Union property, educational, and other qualifications upon the right to vote have been established. These limitations upon adult male suffrage have not, however, been held to warrant an application of the reduction of representation clause of the Fourteenth Amendment. To quote the words of Cooley: "To require the payment of a capitation tax is no denial of suffrage, it is demanding only the preliminary performance of public duty and may be classed, as may also presence at the polls, with registration, or the observance of any other preliminary to insure fairness and protect against fraud. Nor can it be said that to require ability to read is any denial of suffrage. To refuse to receive one's vote because he was born in some particular country rather than elsewhere, or because of his color, or because of any natural quality or peculiarity which it would be impossible for him to overcome, is plainly a denial of suffrage. But ability to read is within the power of any man, it is not difficult to attain it, and it is no hardship to require it. On the contrary the requirement only by indirection compels one to appropriate a personal benefit he might otherwise neglect. It denies to no man the suffrage, but the privilege is freely tendered to all, subject only to a condition that is beneficial in its performance and light in its burden. If a property qualification, or the payment of taxes upon property when one has none to be taxed, is made a condition to suffrage, there may be room for more question.'

§ 235. The Mode of Apportionment.

In the first Congress representatives were apportioned among the States according to a rough estimate as to their respective populations. Since that time new apportionments have been based upon the figures of the decennial censuses.

5 Principles of Constitutional Law, edition of 1898, p. 292. The state courts have very generally held that reasonable registration and other laws for the protection of the ballot against fraud, intimidation, ignorance, etc., are not unconstitutional under the state Constitution as adding to the qualifications laid down. Cf. Cooley, Const. Lim., 7th ed., Ch. XVIII.

The first apportionment bill passed by Congress was vetoed by President Washington as unconstitutional in that it provided for a representative for each thirty thousand of population, the minimum fixed by the Constitution, and also an additional number to the States having the largest fractions left over after the division was made.

Until 1842 fractions of populations left over by the dividing of the populations of the several States by the number selected for determining the number of representatives, went unrepresented. Since that time, however, where these fractions have exceeded a half of the ratio number, an additional representative has been allowed,

§ 236. Congressional Districts.

The division of the States into congressional districts for the purpose of selecting representatives is left to the state legislatures. Congress has, however, provided that these districts shall be composed of contiguous territory. It has become an established rule of political practice, though not one of constitutional obligation, that a representative shall be a resident of the district in which he is elected. Representatives are, however, occasionally elected by districts in which they do not reside, and in such cases there is no question as to their right to sit. In certain cases, congressmen at large, that is, from the whole State, are elected. This happens when a State has not been divided into districts, or where, after a reapportionment, an additional representative or representatives have been allotted a State and that State has not re

"Construing the Constitution to authorize a process by which the whole number of representatives should be ascertained on the whole population of the United States, and afterwards 'apportioned among the several States according to their respective numbers,' the Senate [in an amendment which the House accepted] applied the number thirty thousand as a divisor to the total population, and taking the quotient which was one hundred and twenty, us the number of representatives given by the ratio which had been adopted in the House where the bill originated, they apportioned that number among the several States by that ratio, until as many representatives as it would give were allotted to each. The residuary numbers were then distributed among the States having the highest fractions." Marshall, Life of Washington, V, 319. Cf. Foster, Commentaries on the Constitution, I, 395.

districted itself so as to provide the necessary additional districts. In such cases, of course, only the additional representatives are elected at large.

§ 237. Members of the House of Representatives: by Whom Elected.

The Constitution provides that for the election of Representatives to Congress, "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislature." This places the determination of who may exercise the suffrage wholly within the control of the States, except for the restriction placed upon them by the Fifteenth Amendment. There thus exists the rather curious fact that the National Government though able to control its citizenship by naturalization is not able to confer the suffrage for the election even of its own officials; whereas the States may confer, and, indeed, in a number of instances have conferred this suffrage upon persons not citizens of the United States.7

§ 238. The Right to Vote for Representatives not a Necessary Incident of National Citizenship.

8

That the suffrage is not a necessary incident of federal citizenship is declared by the Supreme Court in Minor v. Happersett, a case in which it was argued that a woman, a citizen of the United States, was, as such, entitled to a vote. In this case the direct question was presented whether all citizens are necessarily voters. This the court answered by declaring that the United States has no voters of its own creation in the States. After going on to show that at the time the Constitution was adopted and ever since, the right of suffrage in the States had not been coextensive with that of citizenship, the opinion concludes: "For nearly

7 E. g., upon aliens who have declared their intention to become citizens but have not yet taken out their final papers. Hare (American Constitutional Law. p. 529) denies the constitutionality of this. He says: "Reading the Constitution in the light of the Fifteenth Amendment, the just inference would seem to be that national citizenship is a prerequisite to the right of suffrage." This view is plainly incorrect.

821 Wall. 162; 22 L. ed. 627.

ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. Being unanimously of the

opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the court below.”

It cannot be said, therefore, that the right to vote either at federal or state elections is in any case determined directly by federal law. Even the Fifteenth Amendment does not itself give to any one the right. In United States v. Reese9 the court say: "The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen over another, on account of race, color, or previous condition of servitude. It follows that the Amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude."

“In

And in United States v. Cruikshank10 the court say: Minor v. Happersett (21 Wall. 162; 22 L. ed. 627) we decided that the Constitution of the United States has not conferred the right of suffrage upon any one, and that the United States have no voters of their own creation in the States. In United States v. Reese (92 U. S. 214; 23 L. ed. 563), just decided, we held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in

992 U. S. 214; 23 L. ed. 563.

10 92 U. S. 542; 23 L. ed. 588.

the exercise of that right on account of race, etc., is. 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."

11

In a much later case, Pope v. Williams, the court again say: "The privilege to vote in any State is not given by the federal Constitution or by any of its Amendments."

In Neal v. Delaware,12 a case decided but a little later, the court, however, point out that the effect of the Amendment by abolishing ipso facto all limitations in state laws and constitutions founded upon race, color, or previous condition of servitude, may in effect operate to qualify certain persons to vote who otherwise would not have the right. The opinion says: "Beyond all question the adoption of the Fifteenth Amendment had the effect, in law, to remove from the state constitution, or render inoperative, that provision which restricts the right of suffrage to the white There is, then, an excision or erasure of the word 'white' in the qualification of voters in this State; and the Constitution is now to be construed as if such word had never been there."

race.

Although, as appears from the foregoing, the right of determining the conditions upon which the suffrage is granted lies exclusively within the discretion of the several States, subject only to the limitation of the Fifteenth Amendment, it may happen that state suffrage laws may be rendered invalid because in violation of certain other general limitations laid upon the States. Thus, for example, a disfranchising law, operating as to particular individuals as a bill of attainder, or as an ex post facto law, or as tending to destroy a republican form of government in the State, or as favoring the citizens of certain States above those of other States would probably be held void.

In Pope v. Williams 13 the court say: "It is unnecessary in this case to assert that under no conceivable state of facts could a state statute in regard to voting be regarded as an infringement

11 193 U. S. 621; 24 Sup. Ct. Rep. 573; 48 L. ed. 817.

12 103 U. S. 370; 26 L. ed. 567.

13 193 U. S. 621; 24 Sup. Ct. Rep. 573; 48 L. ed. 817.