Elector Qualifications

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

Article I, Section 2, Clause 1

At the Constitutional Convention, the Framers debated whether the electors of the House of Representative should be limited to freeholders, or whether they should incorporate state voting laws by requiring that whoever the state decided is eligible to vote for "the most numerous Branch of the State Legislature" is also eligible to vote for the House of Representatives. The majority of the delegates preferred to defer to the states and approved the Elector Qualifications Clause. As James Wilson summarized in records of the Convention, "It was difficult to form any uniform rule of qualifications for all the States." Unnecessary innovations, he thought, should also be avoided: "It would be very hard & disagreeable for the same persons, at the same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the Natl. Legislature."

Thus, the Constitution gives authority for determining elector qualifications to the states. The Seventeenth Amendment adopted the same qualifications language to apply to the popular election of United States Senators. This authority is superseded only insofar as the Constitution itself forbids the denial of equal protection and the exclusion of voters on specific grounds, such as race (Fifteenth Amendment), sex (Nineteenth Amendment), failure to pay a poll tax or other tax (Twenty-fourth Amendment), and, for those eighteen years old or older, age (Twenty-sixth Amendment).

Article I, Section 4, allows Congress to "make or alter such [state] Regulations" regarding "the Times, Places and Manner of holding Elections for Senators and Representatives," but, as a textual matter, Congress's power is about "holding Elections"—not about who votes, which is the express focus of Section 2. Both Alexander Hamilton and James Madison believed the two clauses to be independent in this way. Hamilton, in The Federalist No. 60, said of Article I, Section 4, that the national government's "authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or may be chosen...are defined and fixed in the Constitution; and are unalterable by the [national] legislature." (Emphasis in original.) In The Federalist No. 52, Madison wrote of Article I, Section 2: "To have left it [the definition of the right of suffrage] open for the occasional regulation of Congress, would have been improper...." Hamilton and Madison believed that generally the state constitutions, and certainly not Congress, would determine who could vote.

The Supreme Court has applied the Equal Protection Clause of the Fourteenth Amendment to invalidate certain state regulations that excluded classes of voters from the franchise. In Kramer v. Union Free School District No. 15 (1969), the Court declared that it was unconstitutional to limit school district elections to property holders or to those who had children enrolled in the district schools.

The Court has also upheld congressional regulation of federal elections over contrary state laws. In Oregon v. Mitchell (1970), a decision of limited precedential value, five Justices in a highly fractured series of opinions voted to uphold federal legislation—passed prior to the adoption of the Twenty-sixth Amendment, which was ratified a little over six months after the Court's decision—that required the states to allow eighteen-year-olds to vote in federal elections. While it is true that in this case a majority of the Justices did vote to uphold a statute that dictated who could vote in federal elections, only one of the five Justices who did so—Justice Hugo L. Black—relied on Article I, Section 4 (power of Congress to regulate the times, manner, and places of elections). The other four relied on interpretations of Congress's enforcement authority under the Fourteenth and Fifteenth Amendments. In City of Boerne v. Flores (1997), the Court ruled that Congress may not assert authority under Section 5 of the Fourteenth Amendment "to enforce" the amendment by prohibiting state actions not closely related to violations of the amendment. The Court has not yet directly applied this principle to congressional statutes regulating suffrage.

Accordingly, it would seem that reliance on Article I, Section 4, to trump Article I, Section 2, lacks textual support, and only Justice Harry A. Blackmun endorsed it in 1970. "Rather, the general rule is that Congress may pass laws superseding the states' determination of elector qualifications only when confronted with a deliberate denial of either a specific constitutional guarantee of the right to vote or of equal protection under the Fourteenth Amendment."

In Tashjian v. Republican Party of Connecticut (1986), the Supreme Court, by a 5–4 majority, used the First Amendment to restrict the application of the Elector Qualifications Clause in primary elections. In that case, a Connecticut law that required a closed primary conflicted with a Connecticut Republican Party rule that permitted independent voters to vote in Republican primaries for federal and statewide offices. The Court said that the Connecticut law violated freedom of association.

The majority also held that the implementation of party rules—that had established qualifications for voting in congressional elections differing from the voting qualifications in elections for the more numerous house of the state legislature—did not violate the Elector Qualifications Clause (or the Seventeenth Amendment). Primaries are subject to these clauses, the Court said, but the purpose of those clauses is satisfied "if all those qualified to participate in the selection of members of the more numerous branch of the state legislature are also qualified to participate in the election of Senators and Members of the House of Representatives." There is no need for "perfect symmetry." Justice John Paul Stevens, joined by Justice Antonin Scalia, dissented: "The Court nevertheless separates the federal qualifications from their state counterparts, inexplicably treating the mandatory ‘shall have' language of the clauses as though it means only that the federal voters ‘may but need not have' the qualifications of state voters."

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Roger Clegg
President and General Counsel
Center for Equal Opportunity