upon, or a discrimination against, the individual rights of a citizen of the United States removing into the State, and excluded from voting therein by state legislation. The question might arise if an exclusion from the privilege of voting were founded upon the particular State from which the person came, excluding from that privilege, for instance, a citizen of the United States coming from Georgia and allowing it to a citizen of the United States coming from New York or any other State. In such case an argument might be urged that, under the Fourteenth Amendment of the federal Constitution, the citizen from Georgia was, by the state statute, deprived of the equal protection of the laws. Other extreme cases might be suggested."

In this case the court held valid a state law requiring persons coming into the State to make a declaration of their intention of becoming citizens and residents of the State before they could claim the right to be registered as voters. The court say: "The statute, so far as it provides conditions precedent to the exercise of the elective franchise within the State, by persons coming therein to reside . is neither an unlawful discrimination against any one in the situation of the plaintiff in error nor does it deny to him the equal protection of the laws, nor is it repugnant to any fundamental or inalienable rights of citizens of the United States, or a violation of any implied guaranties of the federal Constitution."

§ 239. Though Determined by State Law, the Right to Vote for Representatives is a Federal Right.

A distinction is to be made between the right to vote for a Representative to Congress and the conditions upon which that right is granted. In the preceding section it has been shown that the right to vote is conditioned upon and determined by state law. But the right itself, as thus determined, is a federal right. That is to say, the right springs from the provision of the federal Constitution that Representatives shall be elected by those who have the right in each State to vote for the members of the most numerous branch of the state legislature. The Constitution thus

14

gives the right but accepts, as its own, the qualifications which the States severally see fit to establish with reference to the election of the most numerous branch of their several state legislatures. This is the doctrine laid down by the Supreme Court in Ex parte Yarbrough in which they say: "But it is not correct to say that the right to vote for a member of Congress does not depend upon the Constitution of the United States. The office, if it be properly called an office, is created by that Constitution and by that alone. It also declares how it shall be filled, namely, by election. Its language is: '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 the electors of the most numerous branch of the state legislature.' (Article I, Section 2.) 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 of members of Congress. Nor can they prescribe the qualifications 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. It adopts the qualification thus furnished as the qualification of its own electors for members of Congress. It is not true, therefore, that members of Congress owe their right to vote to the state law in any sense which makes the exercise of the right depend exclusively on the law of the State." 15

14 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274.

15 The opinion continues: "Counsel for petitioners, seizing upon the expres sion found in the opinion of the court in the case of Minor v. Happersett (21 Wall. 162; 22 L. ed. 627) that the Constitution of the United States does not confer the right of suffrage upon any one," without reference to the connection in which it is used, insists that the voters in this sense do not owe their right to vote in any sense to that instrument. But the court was combatting the argument that this right was conferred on all citizens, and therefore upon women as well as men. In opposition to that idea, it was said the Constitution adopts as the qualification for voters of members of Congress that which prevails in the State where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of

In Wiley v. Sinkler, 16 an action brought in one of the federal circuit courts against the board of managers of a general state election to recover damages in the sum of twenty-five thousand dollars for wrongfully rejecting the plaintiff's vote for a member of the House of Representatives of the United States. The defendants demurred on the grounds that the court had no jurisdiction because it did not affirmatively appear on the face of the complaint that a federal question was involved, and because the verdict for an amount sufficient to give the court jurisdiction would be excessive. Upon error to the federal Supreme Court, that tribunal held that a federal right was directly involved for the State for the description of the class. But the court did not intend to say that when the class or the person is thus ascertained, his right to vote for a member of Congress was not fundamentally based upon the Constitution, which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors. The Fifteenth Amendment of the Constitution, by its limitation on the power of the States in the exercise of their right to prescribe the qualifications of voters in their own elections and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the National Government, and was not intended to be left within the exclusive control of the States. It is in the following language: Sec. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude. Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.

"While it is quite true, as was said by this court in United States v. Reese (92 U. S. 214; 23 L. ed. 563) that this article gives no affirmative right to the colored men to vote, and is designed primarily to prevent discrimination against him whenever the right to vote may be granted to others, it is easy to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words 'white men' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, being paramount to the state law, and a part of the state law, it annulled the discriminating word 'white,' and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any further constitutional provision of a State which should give the right of voting exclusively to white people, whether they be men or women. Neal v. Delaware, 103 U. S. 370; 26 L. ed. 567. In such cases this Fifteenth Article of Amendment does, proprio vigore, substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right." 16 179 U. S. 58; 21 Sup. Ct. Rep. 17; 45 L. ed. 84.

"the right to vote for members of the Congress of the United States is not derived merely from the Constitution and laws of the State in which they are chosen, but has its foundation in the Constitution of the United States." 17 The amount of damages claimed, the court held, to be " peculiarly appropriate for the determination of a jury," and that no opinion of the court would "justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the circuit court." 18

§ 240. Federal Control of Congressional Elections.

According to the Constitution, "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 choosing Senators."

In this clause sufficient authority is given the Federal Government, should it so see fit, to assume entire and exclusive control of the elections of Senators and Representatives; to establish by acts of Congress. the regulations governing the same, and to apply and enforce these regulations by federal officials and tribunals.

The United States government did not exercise any of the power thus given it until 1842 when, conceiving that the system employed in some States of electing all the members of the House of Representatives upon a general ticket (that is, one according to which each voter voted for as many Representatives as there were Representatives to be elected from his State) gave an undue power to the political party in the majority in the State, Congress enacted a law declaring that each member should be elected by a separate district composed of contiguous territory.19 In 1866 an

act was passed regulating the election of Senators by the state 17 Citing Ex parte Yarbrough, 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274.

18 As to constitutionality of federal regulation and protection, and the federal character of the right to vote for Representatives to Congress, see In re Coy, 127 U. S. 731; 8 Sup. Ct. Rep. 1263; 32 L. ed. 274; Mason v. Missouri, 179 U. S. 328; 21 Sup. Ct. Rep. 125; 45 L. ed. 214; Swafford v. Templeton, 185 U. S. 487; 22 Sup. Ct. Rep. 783; 46 L. ed. 1005.

19 85 Stat. at L. 491.

legislatures. In 1873 Congress again acted, providing by law that the election of Representatives in all of the States should occur upon the same day, namely, the Tuesday following the first Monday in November, 1876, and on the same day of every second year thereafter.20 In like manner Congress fixed the day for election of presidential electors.

By act of 1872, amended by that of February 14, 1899, it is provided that "all votes for Representatives in Congress must be by written or printed ballot or voting machine, the use of which has been duly authorized by the state law; and all votes received or recorded contrary to this section shall be of no effect."

Other federal laws prohibit interference in elections by federal troops, or army or navy officers; and by the law of 1870 it is provided generally at all elections that no persons shall be prevented from voting because of race, color or previous condition of servitude.22

A general law enacted in 1870 (amended in 1871), entitled a law "To enforce the Rights of Citizens of the United States to Vote in the Several States of the Union," while not itself estab lishing positive regulations of its own, provided for the appointment of marshals and supervisors of elections to see to it that the state laws governing elections of Representatives to Congress were fairly and effectively executed.23

This right of oversight was, however, resisted by some of the States upon the ground that, though the United States might establish regulations of its own, appoint officials to execute them, and compel the officials of the State as well as private citizens to conform to them, it had no right or power to control state officials in the execution of the laws enacted by their own States, even

20 By act of March 3, 1875, this provision was made "not to apply to any State that has not yet changed its day of election and whose Constitution must be amended in order to effect a change in the day of election of state officers in said State." The elections in the States of Maine, Vermont and Oregon at present are held under this provision.

21 Rev. Stat., §§ 2003, 5530, 5528.

22 Rev. Stat, § 2004. This law was of course enacted under authority given by the Fifteenth Amendment.

23 This law was repealed February 8, 1894.