The Elector Qualifications Clause

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

—Derek T. Muller

Introduction

Under the Constitution, the voters would elect members of the House of Representatives. The Constitution refers to these voters as electors, not to be confused with presidential electors. The Framers gave the states wide latitude to define the qualifications of these electors. The power to determine who would elect members of Congress would not be with Congress, but with the states. In short, the qualifications to vote for representatives in Congress would mirror the qualifications to vote for members of the most numerous branch of the state’s legislature. The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth amendments have restricted the types of qualifications states may enact. Courts have often acknowledged the broad power of states to determine elector qualifications. These cases have affirmed this power while recognizing some federal constraints on that power, including Congress’s limited power to override those qualifications.

History Before 1787

After the Declaration of Independence was signed, eleven states ratified constitutions.¹ Nine of those constitutions included specific elector qualifications.² Two referenced those qualifications already in place in their respective states.³

Age and residency were common requirements, and many states limited voting to property owners (“freeholders”) or taxpayers.⁴ North Carolina, for instance, limited voting in its lower house to “freemen” (those who were not enslaved) who were twenty-one years of age, had been inhabitants of the state for twelve months, and “paid public taxes.”⁵ Pennsylvania restricted the vote to those who “paid public taxes” or were the “sons of freeholders.”⁶ Massachusetts required that voters own “a freehold estate within the same town” as their residence “of the annual income of three pounds, or any estate of the value of sixty pounds.”⁷ New York limited voting outside of the cities of Albany and New York to “freeholder[s], possessing a freehold of the value of twenty points . . . or [who] have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to this state.”⁸

Several state constitutions also included religious qualifications for voters. South Carolina, for example, required voters to believe in God and “in a future state of rewards and punishments.”⁹ Rhode Island restricted the vote to Christian freemen.¹⁰ Connecticut also restricted the vote to freemen, who were required to be “trusted pillars of the commonwealth.”¹¹ In practice, the franchise was essentially limited to Protestants in Connecticut, because Judaism and Roman Catholicism were not tolerated.¹² Other states made religion a precondition for the protection of inhabitants’ rights that may have indirectly affected the right to vote.¹³ New Hampshire guaranteed equal protection to Christians, New Jersey ensured the rights of Protestants, and Pennsylvania protected the rights of those who believed in God.¹⁴

The Constitutional Convention

By 1787, state restrictions on electors based on age, residency, property ownership, and religion had been widely adopted. These state restrictions on the franchise likely informed how the Framers would have understood federal elector voter qualifications.

During the Constitutional Convention, the Framers agreed to a House of Representatives that would be chosen by the people of the several states, but they debated how voter eligibility for the lower chamber would be determined. James Wilson of Pennsylvania observed that “[i]t was difficult to form any uniform rule of qualifications for all the States.”¹⁵ Some states might oppose a national rule of voter eligibility, which could have threatened ratification of the Constitution.¹⁶ The states already imposed qualifications for their own voters. It would be difficult to restrict the franchise for federal officeholders to a set of voters narrower than those allowed under the existing state qualifications. Wilson argued that “[i]t 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.”¹⁷ James Madison of Virginia warned that “[t]he qualifications of electors and elected were fundamental articles in a Republican Govt.” and that “[i]f the Legislature could regulate those of either, it can by degrees subvert the Constitution.”¹⁸ Over the entire course of the constitutional debates, several delegates, including John Dickinson of Delaware and Gouverneur Morris of Pennsylvania, proposed requiring that the electors of the House be limited to freeholders, but a majority of the delegates ultimately preferred to defer to the states.¹⁹

On August 8, delegates voted to approve the Elector Qualifications Clause as it had been presented by the Committee of Detail.²⁰ The Committee of Style later modified the clause slightly without controversy.²¹ The clause provides that in each state, the voters for the members of the House of Representatives shall have the same qualifications as those permitted to vote for the “most numerous Branch of the State Legislature.”²² The “most numerous” branch would generally be the larger, lower house. The Constitution thus gave the states authority for determining elector qualifications.

The Ratification Debates

The Elections Clause granted Congress the power to “make or alter such [state] Regulations” regarding “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.”²³ As a textual matter, however, this power was limited to “holding Elections”—not the qualifications for voting. Both Alexander Hamilton and James Madison contended that the Elections Clause and the Elector Qualifications Clause were independent and did not overlap. In Federalist No. 60, Hamilton wrote that the national government’s authority under the Elections Clause “would be expressly restricted to the regulation of the times, the places, and the manner of elections” and that under the Elector Qualifications Clause, the “qualifications of the persons who may choose . . . are defined and fixed in the Constitution, and are unalterable by the [national] legislature.”

In Federalist No. 52, Madison wrote that, because of its place “as a fundamental article of republican government,” it “would have been improper” for the Constitution to “have left [the suffrage right] open for the occasional regulation of the Congress.” Madison also thought it would have been improper for the same reason to place this power entirely in the hands of state legislatures. Instead, the Elector Qualifications Clause struck something of a compromise. Qualifications for “that branch of the federal government which ought to be dependent on the people alone” would generally be set by state constitutions, which established suffrage rules, and likely not easily be modified by state legislatures. In Madison’s view, the House should not be “rendered too dependent on the State [legislatures].”

There was no meaningful opposition to the Elector Qualifications Clause by the Anti-Federalists.

Subsequent Amendments

Four constitutional amendments have expressly prohibited denying or abridging the right to vote on specific grounds: the Fifteenth Amendment (race, color, or previous condition of servitude); the Nineteenth Amendment (sex); the Twenty-Fourth Amendment (failure to pay any tax); and the Twenty-Sixth Amendment (age). The Supreme Court of the United States has also held that the Equal Protection Clause of the Fourteenth Amendment forbids certain arbitrary voter qualifications. Harper v. Virginia State Board of Elections (1966) found that a state may not restrict the right to vote in state or local elections on the basis of ability to pay a tax.²⁴ Such a classification based on wealth has “no relation to voting qualifications” under the Equal Protection Clause.²⁵ The Elector Qualifications Clause applies only to federal elections, but these amendments have affected qualifications of voters for both federal and state elections (although the Twenty-Fourth Amendment speaks only of federal elections).

The Seventeenth Amendment, which guaranteed the popular election of Senators, adopted the qualifications for the “Electors of the most numerous Branch of the State Legislature.”

Judicial Precedent

The Supreme Court has taken different approaches to the Elector Qualifications Clause. One line of cases granted deference to the state’s powers to set voter qualifications. For example, Lassiter v. Northampton County Board of Elections (1959) emphasized that states have “broad powers” under the Elector Qualifications Clause to impose a literacy test,²⁶ and Richardson v. Ramirez (1974) expressly held that a state may disqualify ex-felons from voting.²⁷

However, a second line of cases has found limitations on state power to limit the franchise more generally under the Equal Protection Clause. Kramer v. Union Free School District No. 15 (1969) reviewed restrictions on the franchise with skepticism.²⁸ The Court found unconstitutional a law that limited voting in local school board elections to parents of students or those who owned property. The Court has also held that the First Amendment right of association for political parties may restrict the authority of states to prescribe qualifications for primary elections.²⁹ For example, a state cannot require a closed primary limited to registered members of a political party if a political party’s rules allow independents to vote.³⁰ Moreover, implementation of party rules that established different qualifications for voting in congressional elections than in elections for the more numerous house of the state legislature did not violate the Elector Qualifications Clause or the Seventeenth Amendment.³¹

Open Questions

• What is the relationship between the Elector Qualifications Clause and the Equal Protection Clause?
• What restrictions on voter qualifications are still permissible?
• Are the rules for political parties limiting the pool of voters who may participate in primary elections for members of Congress subject to any limitations?

1. Forrest McDonald, Original Unintentions: The Franchise and the Constitution, 40 Modern Age 344, 346 (1998). ↩︎
2. Id. ↩︎
3. Id. at 347. ↩︎
4. Id. at 346–48. ↩︎
5. N.C. Const. of 1776, art. VIII. ↩︎
6. Pa. Const. of 1776, ch. II, § 6. ↩︎
7. Mass. Const. of 1780, ch. I, § 3, art. IV. ↩︎
8. N.Y. Const. of 1777, art. VII. ↩︎
9. S.C. Const. of 1778, art. XIII. ↩︎
10. McDonald, supra at 347. ↩︎
11. Id. ↩︎
12. Id. at 346–47. ↩︎
13. 13. Id. ↩︎
14. N.H. Const. of 1783, pt. I, art. VI; N.J. Const. of 1776, art. XIX; Pa. Const. of 1776, ch. I, § 2. ↩︎
15. 2 Farrand’s 201. ↩︎
16. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 23–24 (2000). ↩︎
17. 2 Farrand’s 201. ↩︎
18. Id. at 250. ↩︎
19. 1 Farrand’s 364, 368; 2 Farrand’s 139, 151, 153, 163–64, 178, 209, 565, 590, 651. ↩︎
20. 2 Farrand’s 216. ↩︎
21. Id. at 565, 590. ↩︎
22. Art. I, § 2, cl. 1. ↩︎
23. Art. I, § 4. ↩︎
24. 383 U.S. 663 (1966). ↩︎
25. Id. ↩︎
26. 360 U.S. 45, 50–51 (1959). ↩︎
27. 418 U.S. 24, 56 (1974). ↩︎
28. 395 U.S. 621, 622, 626–29 (1969). ↩︎
29. Cal. Democratic Party v. Jones, 530 U.S. 567, 577 (2000); Clingman v. Beaver, 544 U.S. 581, 591, 593–94 (2005). ↩︎
30. Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 (1986). ↩︎
31. Id. at 228–29. ↩︎