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. Reese" 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."

And in United States v. Cruikshank10 the court say: "In 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."

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."

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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. Williams13 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.

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

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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 Yarbrough1 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

11 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274.

15 The opinion continues: "Counsel for petitioners, seizing upon the expression 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 com batting 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.