"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." " 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;21 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 estallishing 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 ary 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.

when those laws related to the election of members of the National Législature.

24

This controversy reached a judicial settlement in the case of Ex parte Siebold, decided in 1879. This suit arose out of the arrest of certain state-appointed judges of elections who were charged with interfering with and resisting supervisors and deputy marshals holding appointment from the Federal Government under the act of 1870. In behalf of the defendants it was maintained that the federal officials had been without constitutional authority, and, therefore, that the resistance offered them was not a legal offense.

The argument is stated by Justice Field in his dissenting opinion. He there takes the position that in granting to the Federal Government the authority to enact laws regulating the elections of Senators and Representatives, the intention of the framers of the Constitution had been simply to authorize the General Government to legislate in case the state government refused to take any steps whatever. He said: "The act was designed simply to give to the General Government the means of its preservation against a possible dissolution from the hostility of the States to the election of Representatives, or from their neglect to provide suitable means for holding such elections." As evidence that this was the intention, Madison's remarks in the Constitutional Convention and Hamilton's in The Federalist were cited. So long as the state laws are retained and administered by state officials, they cannot, argued Field, be properly regarded as federal laws, and Congress cannot provide for their federal supervision. "The act of Congress," he said, asserts a power inconsistent with and destructive of the independence of the States. The right to control their own officers, to prescribe the duties they shall perform, without the supervision or interference of any other authority, and the penalties to which they shall be subjected for a violation of duty is essential to that independence." After quoting from Kentucky v. Dennison, Field continues: "If it be incompetent

25

24 100 U. S. 371; 25 L. ed. 717.

25 24 How. 66; 16 L. ed. 717.

for the Federal Government to enforce by coercive measures the performance of a plain duty, imposed by a law of Congress upon the executive officer of a State [the rendition of fugitives from justice] it would seem to be equally incompetent for it to enforce by similar measures the performance of a duty imposed upon him by a law of a State. If Congress cannot impose upon a state officer, as such, the performance of any duty, it would seem logically to follow that it cannot subject him to punishment for the neglect of such duties as the State may impose. It cannot punish for the non-performance of a duty which it cannot prescribe.

Whenever, therefore, the Federal Government, instead of acting through its own officers, seeks to accomplish its purposes through the agency of officers of the States, it must accept the agency with the conditions upon which the officers are permitted to act.. When, therefore, the Federal Government desires to compel, by coercive measures and punitive sanctions, the performance of any duties devolved upon it by the Constitution, it must appoint its own officers and agents, upon whom its power can be exerted. Whatever Congress may properly do touching the regulations [governing elections] one of two things must follow: either the altered or the new regulation remains a state law, or it becomes a law of Congress. If it remains a state law, it must, like other laws of the State, be enforced through its instrumentalities and agencies, and with the penalties which it may see fit to prescribe, and without the supervision or interference of federal officials. If, on the other hand, it becomes a law of Congress, it must be carried into execution by such officers and with such sanctions as Congress may designate. With respect to the election of Representatives," Field concludes, as long as Congress does not adopt regulations of its own and enforce them through federal officers, but permits the regulations of the States to remain, it must depend for a compliance with them upon the fidelity of the state officers and their responsibility to their own government. All the provisions of the law, therefore, authorizing supervisors and marshals to interfere with those officers in the discharge of their duties and providing for criminal prosecu

tions against them in the federal courts, are, in my judgment, clearly in conflict with the Constitution."

The majority of the court, however, in their opinion say: "There is no declaration that the regulations shall be made either wholly by the state legislatures or wholly by Congress. If Congress does not interfere, of course they may be made wholly by the State; but if it chooses to interfere, there is nothing in the words to prevent its doing so, either wholly or partially. On the contrary, the necessary implication is that it may do either. It may either make the regulations, or it may alter them. If it only alters, leaving, as manifest convenience requires, the general organization of the polls to the State, there results a necessary co-operation of the two governments in regulating the subject. But no repugnance in the system of regulations can arise thence; for the power of Congress over the subject is paramount. It may be exercised as and when Congress sees fit to exercise it. When exercised, the action of Congress, so far as it extends and conflicts with the regulations of the State, necessarily supersedes them. This is implied in the power to make or alter.""

As to the supposed incompatibility of independent sanctions and punishments imposed by the two governments, for the enforcement of the duties required of their respective officers of election, and for their protection in the performance of those duties, the court say: "While the State will retain the power of enforcing such of its own regulations as are not superseded by those adopted by Congress, it cannot be disputed that if Congress has power to make regulations it must have the power to enforce them, not only by punishing the delinquency of officers appointed by the United States, but by restraining and punishing those who attempt to interfere with them in the performance of their duties; and if, as we have shown, Congress may revise existing regulations, and add to or alter the same as far as it deems expedient, there can be as little question that it may impose additional penalties for the prevention of frauds committed by the state officers in the elections, or for their violation of any duty relating thereto, whether arising from the common law or from any other law, state or national.