On August 8, 1787, the section was approved unanimously by the Convention.

Later, during the campaign for ratification of the Constitution, article I, section 2, was defended in "The Federalist Papers." At the beginning of Federalist No. 52, the author states:

*** The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the Convention, therefore to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned *** To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the Convention. The provision, made by the Convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established by the State itself. ***99

Justice Story in his definitive analysis of the history of the Constitution notes the practicality of this section. "It would not be very easy for the Convention to frame any rule which would satisfy the scruples, the prejudices, or the judgments of a majority of its own members." 1

Article I, section 4, gives Congress the ultimate power to regulate the time, places, and manner of elections. However, the word "manner" as it appears in section 4 obviously relates only to the procedures of holding elections and not to the qualifications of the electors. According to Alexander Hamilton, writing in Federalist No. 60:

"The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the times, the places, the manner of elections. The qualifications of the persons who may choose, or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the [National] Legislature."

The Supreme Court, in cases I shall discuss later, has consistently upheld Hamilton's interpretation.

However, even these assurances of Hamilton and Madison as to the limited scope of article I, section 4, did not satisfy many of the States. For example, the States of New York, Pennsylvania, and South Carolina prefaced their ratification of the Constitution with provisos and expressions of concern that Congress should not make or alter State regulations respecting the time, places, and manner of holding elections for Senators and Representatives, except when the States did not act.

North Carolina resolved: "That Congress shall not alter, modify, or interfere in the times, places, and manner of holding elections for Senators and Representatives, or either of them, except when the legislature of any State shall neglect, refuse or be disabled by invasion or rebellion to prescribe the same."

1 "Story on the Constitution," p. 434.

Virginia, Massachusetts, and Rhode Island all passed similar resolutions on ratifying the Constitution.

According to no less authority than a former majority leader of the Senate, the late Henry Cabot Lodge, this section was only "*** put in because toward the close of the Revolution the States failed to send delegates, in many cases, to the Continental Congress, and during the Confederation they absolutely brought the Government to a standstill by their failure to provide representation at the seat of government, and this was put in to prevent the new Government from being paralyzed in that way." This is exactly the same representation that James Madison made to the Virginia ratifying convention.

It is abundantly clear that the framers of the Constitution and the States which ratified it intended that section 4 have only the most narrow and limited application-one far too narrow to embrace the bills before us.

Article II, section 1, paragraph 2, concerning the mode of choosing electors for President and Vice President, is clear and concise: "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress *

There can be no doubt that the framers intended the entire process of choosing electors to remain in the hands of the States.

It is interesting to note the extent of the qualifications established by the various States at the time the Constitution was adopted, as illustrated by the following excerpt from Walter Lippmann's "The Public Philosophy."

"The inhabitants of the United States who were qualified to vote for these delegates (to the ratifying conventions) were not large in number. They included no slaves, no women, and except in New York, only such males as could pass property and other highly restrictive tests. We do not have accurate figures. But according to the census of 1790 the population was 3,929,762. Of these, 3,200,000 were free persons and the adult males among them who were entitled to vote are estimated to have been less than 500,000. Using the Massachusetts figures as a statistical example, it may be assumed that less than 160,000 actually voted for delegates to all the ratifying conventions; and of those voting, perhaps 100,000 favored the adoption of the Constitution.

"The exact figures do not matter. The point is that the voters were not-and we may add that they have never been and can never be more than a fraction of the total population."

From the date of ratification until after the War Between the States, there was no restriction by either constitutional amendment or Supreme Court decisions upon the right of States to prescribe voter qualifications. During this time the first literacy tests appeared. In October 1855, Connecticut became the first State to adopt such a qualification, followed closely by Massachusetts on May 1, 1857.

The only two restrictions placed upon the States subsequent to the appearance of literacy tests are the 15th and 19th amendments to the Constitution. The 19th amendment, which prohibits the States or the United States from denying the right to vote on account of sex, appears to be largely irrelevant to our present study. However, from

the communications I have recently received, it would appear that some persons believe that the 15th amendment, which empowers Congress to enforce, by appropriate legislation, the right of citizens not to be denied the vote on account of race or color, would also empower Congress to pass legislation refusing to States the right to enforce an educational qualification. I cannot agree with this line of reasoning for, as the Supreme Court has said in the Lassiter decision, "Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show."

The 15th amendment does indeed prohibit any State from using race or color as a prerequisite for qualifying to vote. However, it should be remembered that in 1870, after the House passed its version of the 15th amendment, the Senate amended it to add prohibitions against discrimination on grounds of education. But this amendment was defeated by a vote of 133 to 37 in the House, and the ultimate conference report contained the present text of the amendment. It is patently ridiculous to argue that what Congress originally and explicitly refused to provide for in the amendment is now within the contemplation of the amendment and can now be effected by legislation allegedly enforcing the amendment. In looking further for the intent of Congress and the States in adopting the 15th amendment, it is well to note here the opinions of contemporary scholars.

One authority was George W. McCrary, a member of the Iowa bar and Member of the House of Representatives who had served as chairman of the Committee on Elections. In his book, "A Treastise on the American Law of Elections," published in 1875, McCrary said:

"Subject to the limitation contained in the 15th amendment to the Constitution of the United States, the power to fix the qualifications of voters is vested in the States. Each State fixes for itself these qualifications, and the United States adopts the State law upon the subject, as the rule in Federal elections, as will be seen by reference to section 11 of article I of the Constitution" (p. 7).

*

"The right of suffrage is not a natural right, nor is it an absolute, unqualified personal right. It is a right derived in this country from constitutions and statutes. It is regulated by the States, and their power to fix the qualifications of voters is limited only by the provisions of the 15th amendment."

A former Speaker of the House and Member of the Senate, James G. Blaine in his memoirs, "Twenty Years of Congress," published in 1886. recalled that:

"The 15th amendment, now proposed, did not attempt to declare affirmatively that the Negro should be endowed with the elective franchise, but it did what was tantamount, in forbidding to the United States or to any State the power to deny or abridge the right to vote on account of race, color, or previous condition of servitude. States that should adopt an educational test or a property qualification might still exclude a vast majority of Negroes from the polls, but they would at the same time exclude all white men who could not comply with the tests that exclude the Negro. In short, suffrage by the 15th amendment was made impartial, but not necessarily universal, to male citizens above the age of 21 years."

Mr. Justice Story said of the 15th amendment:

"What is particularly noticeable in the case of this article is the care with which it confines itself to the particular object in view. The pressure of a particular evil was felt; the reproach of a great wrong was acknowledged; and that evil was to be remedied, and that wrong redressed. There was no thought at this time of correcting at once and by a single act all the inequalities and all the injustice that might exist in the suffrage laws of the several States. There was no thought or purpose of regulating by amendment, or of conferring upon Congress the authority to regulate, or to prescribe qualifications for, the privilege of the ballot. From the beginning the States had exercised that authority, and however diverse had been their action, there was no complaint of any resulting evil which in any case had become of national importance except the single one at which this article was aimed. The correction of this was consequently the immediate need, and whatever else was wrong or impolitic might properly be left to the action of the States where the subject was left when the Constitution was framed." (Vol. 2, p. 719, "Story on the Constitution" (1891).)

The import of this is clear: That Congress and the States intended the 15th amendment to mean exactly what it said. The color of a man cannot be a reason to grant or deny him the right to vote. But, all other qualifications, which have no reasonable relation to race or color, are left entirely to the wisdom of the States.

On April 8, 1913, the 17th amendment, which provides for the popular election of Senators was ratified. The first paragraph of this amendment states:

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for 6 years, and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."

I have searched the Congressional Record to determine if there was any attempt by Congress at the time the 17th amendment was being drafted to limit the authority of the States to prescribe the qualifications of voters for Senators. I cannot find such a suggestion, and there was no dissent to the provision giving that authority explicitly to the States. Senator Henry Cabot Lodge, Sr., correctly interpreted the above quoted paragraph of the amendment during the debate in the following words:

"After the State fixes the qualification and status of the voter, then the right to cast that vote for a United States Senator, if this amendment should be adopted and finally become a part of the Constitution, would be a right dependent upon the Constitution of the United States and guaranteed by it, and Congress would have the power to protect and assure any elector the exercise of that right. While the National Government could not in the first instance say who should vote, yet after the State should determine who its voters were, then the National Government can step in and guarantee to everyone whose status has been fixed by the State the right to exercise that franchise; and this may be done by any law which, in the wisdom of Congress, it deems sufficient to accomplish the purpose."

In the 123 years that elapsed between the adoption of the original Constitution and the adoption of the 17th amendment, no change occurred in the overwhelming intent of the people that responsibility for determining who should exercise the suffrage should remain in the hands of the States.

In the 1959 report of the Civil Rights Commission, it was recommended that the Constitution be amended to accomplish the same objective which the bills now before us seek to accomplish. Although I agree with the three dissenting members who reported that such an amendment is undesirable; nevertheless, if the great majority of citizens believe that the amendment is necessary, then an amendment would be the legal and appropriate method to secure their wish and the only constitutional method of doing so.

I do not know what precipitated the Commission's remarkable turnabout from the 1959 recommendation of a constitutional amendment to the 1961 recommendation for legislation such as S. 2750. But as we are all aware, the Constitution is the same today as it was in 1959. Those sections which give to the States the right and duty to prescribe the qualifications of voters have not disappeared. They have not been repealed; and the meanings of articles I and II and of the 17th amendment stand as firm today as the day these sections were adopted.

CASE LAW

Having discussed the historical development of the relevant portions of the Constitution, I now turn to the Supreme Court interpretation of these sections.

In this connection, I think it is sufficient to quote briefly from those Supreme Court opinions which are generally held to be the guiding cases in this area of our law. The development of the case law is evinced by the Court in construing the Federal Constitution and laws, as well as relevant provisions of constitutions and statutes of the States.

In Minor v. Happersett, 88 U.S. 162 (1874), the Court discussed suffrage and its relation to the 14th amendment. The opinions of Chief Justice Waite makes it clear that the proponents of this bill can find no comfort in the provisions of the 14th amendment:

"The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guarantee for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the Constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen."

Other than quoting the above case, it is not necessary to dwell on the 14th amendment. For if that amendment was meant to deal with suffrage, then the 15th amendment would be mere surplusage.

The subject of the 15th amendment, on the other hand, is clearly limited to suffrage:

"Section 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.

"Section 2. The Congress shall have power to enforce this article by appropriate legislation."