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  • CRS/LII Annotated Constitution Article I
    fraudulent ballots 342 But the bribery of voters although within reach of congressional power under other clauses of the Constitution has been held not to be an interference with the rights guaranteed by this section to other qualified voters 343 To accomplish the ends under this clause Congress may adopt the statutes of the States and enforce them by its own sanctions 344 It may punish a state election officer for violating his duty under a state law governing congressional elections 345 It may in short utilize its power under this clause combined with the nec p 121 essary and proper clause to regulate the times places and manner of electing Members of Congress so as to fully safeguard the integrity of the process it may not however under this clause provide different qualifications for electors than those provided by the States 346 Footnotes 323 5 Stat 491 1842 The requirement was omitted in 1850 9 Stat 428 but was adopted again in 1862 12 Stat 572 324 The 1872 Act 17 Stat 28 provided that districts should contain as nearly as practicable equal numbers of inhabitants a provision thereafter retained In 1901 31 Stat 733 a requirement that districts be composed of compact territory was added These provisions were repeated in the next Act 37 Stat 13 1911 there was no apportionment following the 1920 Census and the permanent 1929 Act omitted the requirements 46 Stat 13 Cf Wood v Broom 287 U S 1 1932 325 The first challenge was made in 1843 The committee appointed to inquire into the matter divided the majority resolving that Congress had no power to bind the States in regard to their manner of districting the minority contending to the contrary H Rept No 60 28th Congress 1st sess 1843 The basis of the majority view was that while Article I Sec 4 might give Congress the power to lay off the districts itself the clause did not authorize Congress to tell the state legislatures how to do it if the legislatures were left the task of drawing the lines L Schmeckebier Congressional Apportionment Washington 1941 135 138 This argument would not appear to be maintainable in light of the language inEx parte Siebold 100 U S 371 383 386 1880 326 46 Stat 13 1929 In 1967 Congress restored the single member district requirement 81 Stat 581 2 U S C Sec 2c 327 14 Stat 243 1866 Still another such regulation was the congressional specification of a common day for the election of Representatives in all the States 17 Stat 28 1872 2 U S C Sec 7 328 Article I Sec 4 and the Fifteenth Amendment have had quite different applications The Court insisted that under the latter while Congress could legislate to protect the suffrage in all elections it could do so only against state interference based on race color or previous condition of servitude James v Bowman 190 U S 127 1903 United States v Reese 92

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  • CRS/LII Annotated Constitution Article I
    limited the discretion granted in Arti p 110 cle I Sec 2 cl 1 and are more fully dealt with subsequently in the treatment of Sec 5 of the Fourteenth Amendment Notwithstanding the vesting of discretion to prescribe voting qualifications in the States conceptually the right to vote for United States Representatives is derived from the Federal Constitution 287 and Congress has had the power under Article I Sec 4 to legislate to protect that right against both official 288 and private denial 289 Footnotes 276 The clause refers only to elections to the House of Representatives of course and inasmuch as Senators were originally chosen by state legislatures and presidential electors as the States would provide it was only with the qualifications for these voters with which the Constitution was originally concerned 277 Minor v Happersett 21 Wall 88 U S 162 171 1875 Breedlove v Suttles 302 U S 277 283 1937 See 2 J Story Commentaries on the Constitution of the United States Boston 1833 576 585 278 The Fifteenth Nineteenth Twenty fourth and Twenty sixth Amendments limited the States in the setting of qualifications in terms of race sex payment of poll taxes and age 279 The Supreme Court s interpretation of the equal protection clause has excluded certain qualifications E g Carrington v Rash 380 U S 89 1965 Kramer v Union Free School District 395 U S 621 1969 City of Phoenix v Kolodziejski 399 U S 204 1970 The excluded qualifications were in regard to all elections 280 The power has been held to exist under Sec 5 of the Fourteenth Amendment Katzenbach v Morgan 384 U S 641 1966 Oregon v Mitchell 400 U S 112 1970 City of Rome v United States 446 U S 156 1980 281 Sec 4 e

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  • CRS/LII Annotated Constitution Article II
    for a general ticket by vote of the people in districts by choice partly by the people voting in districts and partly by legislature by choice by the legislature from candidates voted for by the people in districts and in other ways as notably by North Carolina in 1792 and Tennessee in 1796 and 1800 No question was raised as to the power of the State to appoint in any mode its legislature saw fit to adopt and none that a single method applicable without exception must be pursued in the absence of an amendment to the Constitution The district system was largely considered the most equitable and Madison wrote that it was that system which was contemplated by the framers of the Constitution although it was soon seen that its adoption by some States might place them at a disadvantage by a p 429 division of their strength and that a uniform rule was preferable 68 State Discretion in Choosing Electors Although Clause 2 seemingly vests complete discretion in the States certain older cases had recognized a federal interest in protecting the integrity of the process Thus the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector 69 Its power to protect the choice of electors from fraud or corruption was sustained 70 If this government is anything more than a mere aggregation of delegated agents of other States and governments each of which is superior to the general government it must have the power to protect the elections on which its existence depends from violence and corruption If it has not this power it is helpless before the two great natural and historical enemies of all republics open violence and insidious corruption 71 More recently substantial curbs on state discretion have been instituted by both the Court and the Congress In Williams v Rhodes 72 the Court struck down a complex state system which effectively limited access to the ballot to the electors of the two major parties In the Court s view the system violated the equal protection clause of the Fourteenth Amendment because it favored some and disfavored others and burdened both the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice For the Court Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny 73 Then in Oregon v Mitchell 74 the Court upheld the power of Congress to reduce the p 430 voting age in presidential elections 75 and to set a thirty day durational residency period as a qualification for voting in presidential elections 76 Although the Justices were divided on the reasons the rationale emerging from this case considered with Williams v Rhodes 77 is that the Fourteenth Amendment limits state

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  • CRS/LII Annotated Constitution First Amendment
    accepted by an association formed to take part in a city referendum was invalidated 156 While Buckley had sustained limits on contributions as a prophylactic measure to prevent corruption or its appearance no risk of corruption was found in giving or receiving funds in connection with a referendum Similarly the Court invalidated a criminal prohibition on payment of persons to circulate petitions for a ballot initiative 157 Venturing into the area of the constitutional validity of governmental limits upon political spending or contributions by corporations a closely divided Court struck down a state law that prohibited corporations from expending funds in order to influence referendum votes on any measure save proposals that materially affected corporate business property or assets The free discussion of governmental affairs is the type of speech indispensable to decisionmaking in a democracy the Court said and this is no less true because the speech comes from a corporation rather than an individual 158 It is the nature of the speech not the status of the speaker that is relevant for First Amendment analysis thus allowing the Court to pass by the question of the rights a corporate person may have The materially affecting requirement was found to p 1099 be an impermissible proscription of speech based on content and identity of interests The exacting scrutiny that restrictions on speech must pass was not satisfied by any of the justifications offered and the Court in any event found some of them impermissible Bellotti called into some question the constitutionality of the federal law that makes it unlawful for any corporation or labor union to make a contribution or expenditure in connection with any election for federal office or in connection with any primary election or political convention or caucus held to select candidates for such office 159 Three times the opportunity has arisen for the Court to assess the validity of the statute and each time it has passed it by 160 One of the dissents in Bellotti suggested its application to the federal law but the Court saw several distinctions 161 Other aspects of the federal provision have been interpreted by the Court First in FEC v National Right to Work Committee 162 the Court unanimously upheld section 441b s prohibition on corporate solicitation of money from corporate nonmembers for use in federal elections Relying on Bellotti for the proposition that government may act to prevent both actual corruption and the appearance of corruption of elected representatives the Court concluded that there is no reason why unions corporations and similar organizations may not be treated differently from individuals 163 However an exception to this general principle was recognized by a divided Court in FEC v Massachusetts Citizens for Life Inc 164 holding the section s independent expenditure limitations not limiting expenditures but requiring only that such expendi p 1100 tures be financed by voluntary contributions to a separate segregated fund unconstitutional as applied to a corporation organized to promote political ideas having no stockholders and not serving as a front for a business corporation or union One of the rationales for the special rules on corporate participation in elections elimination of the potential for unfair deployment of corporate wealth for political purposes has no applicability to such a corporation formed to disseminate political ideas not to amass capital 165 The other principal rationale protection of corporate shareholders and other contributors from having their money used to support political candidates to whom they may be opposed was also deemed inapplicable The Court distinguished National Right to Work Committee because restrictions on contributions require less compelling justification than restrictions on independent spending and also explained that given a contributor s awareness of the political activity of MCFL as well as the readily available remedy of refusing further donations the interest protecting contributors is simply insufficient to support Sec 441b s restriction on independent spending 166 What the Court did not address directly was whether the same analysis could have led to a different result in National Right to Work Committee 167 Clarification of Massachusetts Citizens for Life was afforded by Austin v Michigan State Chamber of Commerce 168 in which the Court upheld application to a nonprofit corporation of Michigan s restrictions on independent expenditures by corporations The Michigan law like federal law prohibited such expenditures from corporate treasury funds but allowed them to be made from separate segregated funds This arrangement the Court decided serves the state s compelling interest in assuring that corporate wealth accumulated with the help of special advantages conferred by state law does not unfairly influence elections The law was sufficiently narrowly tailored because it permits corporations to make independent political expenditures through segregated funds that accurately reflect contributors support for the corporation s political views 169 Also the Court concluded that the Chamber of Commerce was unlike the MCFL in each of the three distinguishing features that had justified an exemption from operation of the federal law Unlike MCFL the Chamber was not organized solely p 1101 to promote political ideas although it had no stockholders the Chamber s members had similar disincentives to forego benefits of membership in order to protest the Chamber s political expression and by accepting corporate contributions the Chamber could serve as a conduit for corporations to circumvent prohibitions on direct corporate contributions and expenditures 170 Footnotes 140 The basic federal legislation regulating campaign finances is spread over several titles of the United States Code The relevant principal modern laws are the Federal Election Campaign Act of 1971 86 Stat 3 as amended by the Federal Election Campaign Act Amendments of 1974 88 Stat 1263 and the Federal Election Campaign Act Amendments of 1979 93 Stat 1339 2 U S C 431 et seq and sections of Titles 18 and 26 The Federal Corrupt Practices Act of 1925 43 Stat 1074 was upheld in Burroughs v United States 290 U S 534 1934 but there was no First Amendment challenge All States of course extensively regulate elections

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  • CRS/LII Annotated Constitution Fourteenth Amendment
    permit deviation from the usual rules the Court then proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict scrutiny 111 Also narrowly approached was the issue of the effect of the District s activities the Court focusing upon the assessments against landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and non landowning residents of such functions as flood control The approach taken in this case seems different in great degree from that in prior cases and could in the future alter the results in other local government cases These cases were extended somewhat in Ball v James 112 in which the Court sustained a system in which voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they owned The entity was a water reclamation district which stores and delivers water to 236 000 acres of land in the State and subsidizes its water operations by selling electricity to hundreds of thousands of consumers in a nearby metropolitan area The entity s p 1896 board of directors was elected through a system in which the eligibility to vote was as described above The Court thought the entity was a specialized and limited form to which its general franchise rulings did not apply 113 Finding that prevention of raiding the practice whereby voters in sympathy with one party vote in another s primary election in order to distort that election s results is a legitimate and valid state goal as one element in the preservation of the integrity of the electoral process the Court sustained a state law requiring those voters eligible at that time to register to enroll in the party of their choice at least 30 days before the general election in order to be eligible to vote in the party s next primary election 8 to 11 months hence The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment the Court held and it was because of the plaintiffs voluntary failure to register that they did not meet the deadline 114 But a law which prohibited a person from voting in the primary election of a political party if he has voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided inasmuch as it constituted a severe restriction upon a voter s right to associate with the party of his choice by requiring him to forgo participation in at least one primary election in order to change parties 115 A less restrictive closed primary system was also invalidated the Court finding insufficient justification for a state s preventing a political party from allowing independents to vote in its primary 116 It must not be forgotten however that it is only when a State extends the franchise to some and denies it to others that a right to vote arises and is protected by the equal protection clause If a State chooses to fill an office by means other than through an election neither the equal protection clause nor any other constitutional provision prevents it from doing so Thus in Rodriguez v p 1897 Popular Democratic Party 117 the Court unanimously sustained a Puerto Rico statute which authorized the political party to which an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation Neither the fact that the seat was filled by appointment nor the fact that the appointment was by the party rather than by the Governor or some other official raised a constitutional question The right of unconvicted jail inmates and convicted misdemeanants who typically are under no disability to vote by absentee ballot remains unsettled In an early case applying rational basis scrutiny the Court held that the failure of a State to provide for absentee balloting by unconvicted jail inmates when absentee ballots were available to other classes of voters did not deny equal protection when it was not shown that the inmates could not vote in any other way 118 Subsequently the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register and vote absentee while those confined in the counties of their residences could not or whether the statute s jumbled distinctions among categories of qualified voters on no rational standard made it wholly arbitrary 119 Footnotes 94 Lassiter v Northampton County Bd of Elections 360 U S 45 50 51 1959 95 Article I Sec 2 cl 1 House of Representatives Seventeenth Amendment Senators Article II Sec 1 cl 2 presidential electors See Article I Sec 4 cl 1 and discussion supra pp 118 21 96 Fourteenth Amendment Sec 2 Justice Harlan argued that the inclusion of this provision impliedly permitted the States to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws Reynolds v Sims 377 U S 533 589 1964 dissenting Carrington v Rash 380 U S 89 97 1965 dissenting Oregon v Mitchell 400 U S 112 152 1970 concurring and dissenting Justice Brennan undertook a rebuttal of this position in Oregon v Mitchell supra at 229 250 concurring and dissenting But see Richardson v Ramirez 418 U S 24 1974 where Sec 2 was relevant in precluding an equal protection challenge 97 Lassiter v Northampton County Bd of Elections 360 U S 45 51 1959 98 Reynolds v Sims 377 U S 533 561 62 1964 99 Kramer v Union Free School Dist 395 U S 621 626 28 1969 See also Hill v Stone 421 U S 289 297 1975 But cf

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  • CRS/LII Annotated Constitution Fourteenth Amendment
    a matter of degree very much a matter of consider ing the facts and circumstances behind the law the interest which the State claims to be protecting and the interest of those who are disadvantaged by the classification 131 Thus in order to assure that parties seeking ballot space command a significant measurable quantum of community support Texas was upheld in treating different parties in ways rationally constructed to achieve this objective Candidates of parties whose gubernatorial choice polled more than 200 000 votes in the last general election had to be nominated by primary elections and went on the ballot automatically because the prior vote adequately demonstrated support Candidates whose parties polled less than 200 000 but more than 2 percent could be nominated in primary elections or in conventions Candidates of parties not coming within either of the first two categories had to be nominated in conventions and could obtain ballot space only if the notarized list of participants at the conventions totalled at least one percent of the total votes cast for governor in the last preceding general election or failing this if in the 55 succeeding days a requisite number of qualified voters signed petitions to bring the total up to one percent of the gubernatorial vote W hat is demanded may not be so exessive or impractical as to be in reality a mere device to always p 1901 or almost always exclude parties with significant support from the ballot but the Court thought that one percent or 22 000 signatures in 1972 falls within the outer boundaries of support the State may require 132 Similarly independent candidates can be required to obtain a certain number of signatures as a condition to obtain ballot space 133 A State may validly require that each voter participate only once in each year s nominating process and it may therefore disqualify any person who votes in a primary election from signing nominating or supporting petitions for independent parties or candidates 134 Equally valid is a state requirement that a candidate for elective office as an independent or in a regular party must not have been affiliated with a political party or with one other than the one of which he seeks its nomination within one year prior to the primary election at which nominations for the general election are made 135 So too a state may limit access to the general election ballot to candidates who received at least 1 of the primary votes cast for the particular office 136 But it is impermissible to print the names of the candidates of the two major parties only on the absentee ballots leaving off independents and other parties 137 Also invalidated was a requirement that independent candidates for President and Vice President file nominating petitions by March 20 in order to qualify for the November ballot 138 Footnotes 120 Turner v Fouche 396 U S 346 362 63 1970 voiding a property qualification for appointment to local school board

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  • CRS/LII Annotated Constitution Fifteenth Amendment
    the same right as white persons And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people 6 Grandfather Clauses Until quite recently the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties Of several devices which have been voided one of the first to be held unconstitutional was the grandfather clause Beginning in 1895 several States enacted temporary laws whereby persons who had been voters or descendants of those who had been voters on January 1 1867 could be registered notwithstanding their inability to meet any literacy requirement Unable because of the date to avail themselves of the exemption African Americans were disabled to p 1941 vote on grounds of illiteracy or through discriminatory administration of literacy tests while illiterate whites were permited to register without taking any tests With the achievement of the intended result most States permitted their laws to lapse but Oklahoma s grandfather clause had been enacted as a permanent amendment to the state constitution A unanimous Court condemned the device as recreating and perpetuating the very conditions which the Fifteenth Amendment was intended to destroy 7 The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons except those who voted in 1914 who were qualified to vote in 1916 but who failed to register between April 30 and May 11 1916 with some exceptions for sick and absent persons who were given an additional brief period to register should be perpetually disenfranchised The Fifteenth Amendment Justice Frankfurter declared for the Court nullified sophisticated as well as simple minded modes of discrimination It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race 8 The impermissible effect of the statute said the Court was automatically to continue as permanent voters without their being obliged to register again all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause whereas African Americans prevented from registering by that clause had been afforded only a 20 day registration opportunity to avoid permanent disenfranchisement The White Primary Indecision was displayed by the Court however when it was called upon to deal with the exclusion of African Americans from participation in primary elections 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by

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  • CRS/LII Annotated Constitution Seventeenth Amendment
    and special interest groups through purchase of legislative seats and the neglect of duties by legislators as a consequence of protracted electoral contests Prior to ratification however many States had perfected arrangements p 1966 calculated to afford the voters more effective control over the selection of Senators State laws were amended so as to enable voters participating in primary elections to designate their preference for one of several party candidates for a senatorial seat and nominations unofficially effected thereby were transmitted to the legislature Although their action rested upon no stronger foundation that common understanding the legislatures generally elected the winning candidate of the majority and indeed in two States candidates for legislative seats were required to promise to support without regard to party ties the senatorial candidate polling the most votes As a result of such developments at least 29 States by 1912 one year before ratification were nominating Senators on a popular basis and as a consequence the constitutional discretion of the legislatures had been reduced to little more than that retained by presidential electors 1 Very shortly after ratification it was established that if a person possessed the qualifications requisite for voting for a Senator his right to vote for such an officer was not derived merely from the constitution and laws of the State in which they are chosen but had its foundation in the Constitution of the United States 2 Consistent with this view federal courts declared that when local party authorities acting pursuant to regulations prescribed by a party s state executive committee refused to permit an African American on account of his race to vote in a primary to select candidates for the office of U S Senator they deprived him of a right secured to him by the Constitution and laws in

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