CHAPTER XXXVIII.

ELECTION OF MEMBERS OF CONGRESS.1

§ 234. Their Apportionment among the States.

The Constitution provides that the House of Representatives shall be composed of members chosen every second year by the people of the several States, and that they shall be apportioned among the States according to their several populations, the whole number of persons in each State, excluding Indians not taxed, being counted.2 The Fourteenth Amendment provides, however, that "when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive or judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twentyone years of age and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion

1 The Senate and House of Representatives are spoken of as two “ Houses " of Congress, the Senate being often termed the Upper House, and the House of Representatives, the Lower House, or, simply the "House."

2 The original provision of the Constitution (Art. 8, Sec. 88, Cl. 3) was as follows: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three."

By section 2 of the Fourteenth Amendment, it is provided that " Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." This amendment thus leaves it within the constitutional power of the States to place such restrictions as they may choose upon the exercise of the suffrage within their limits, but subject to a reduction of the number of representatives to which they are entitled in Congress to the extent to which the right to vote is denied to adult male inhabitants, citizens of the United States.

The Fifteenth Amendment, adopted two years later, places the absolute prohibition upon the States that "the right of citizens of the United States to vote shall not be denied or abridged on account of race, color or previous condition of servitude."

By some it has been argued that the Fifteenth Amendment is to be construed as repealing the clause of the Fourteenth Amendment relating to the reduction of the representation of the States, in that it renders constitutionally impossible the action which it was the object of that clause to deter the States from taking. This argument, though it has had the support of eminent authority, cannot be considered a sound one, for the clause of the Fourteenth Amendment provides for a reduction not simply in cases where adult male inhabitants, citizens of the United States, are denied the right to vote because of race, color or previous condition of servitude, but for any cause whatever, saving for participation in rebellion or other crime.

As is well known, most of the Southern States have, by various provisions adopted in their several constitutions, in large measure eliminated the negro vote. This has led to a certain amount of agitation both in the public press and in Congress for the enforcement of the reduction of representation clause of the Fourteenth Amendment, but as yet no decisive steps have been taken.^

3 E. g. Senator John Sherman, Recollections, I, 450. See also article by Mr. Emmet O'Neal in North American Review, Vol. 181, p. 530.

4 In the platform of the Republican party adopted by the National Convention in 1904 it was declared: "We favor such congressional action as shall determine whether, by special discriminations, the elective franchise in any State has been unconstitutionally limited, and, if such be the case, we demand that representation in Congress and in the Electoral College shall be proportionally reduced, as directed by the Constitution of the United States.”

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." 5

§ 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

6"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, s 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."

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

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

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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.