"ARTICLE XV. "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." 16 The peculiar language used, which gives color to the claim that citizens of the United States previously possessed the right of suffrage, was chosen to conciliate those who claimed that the Fourteenth Amendment had already conferred the franchise upon all citizens of the United States; 17 a position which the Supreme Court has since said was untenable.18 On April 10th, 1869, Grant approved an act of Congress which made the ratification of this amendment a condition precedent to the admission of Virginia, Mississippi and Texas to representation; 19 and on December 22d, an act which took from Georgia the representation that had been restored to her, and made her adoption of the Amendment a condition precedent to her rehabilitation.20 During the following year, the Amendment was ratified by the legislatures of the following States: Alabama, Arkansas, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, West Virginia and Wisconsin, thirty in all, twenty-nine only being essential to its adoption. Of these, the New York legislature, subsequent to the ratification by some, but before three-fourths of all the States had ratified, repealed the ratification of New York. Since enough ratifications were obtained without counting that State, the question became immaterial. The legislatures of Ohio and Georgia, to which the question was first submitted, refused a ratification; but a subsequent Ohio leg 16 McPherson, History of the Rebellion, pp. 403-405. 17 See the Speeches of Charles Sumner and George F. Edmunds in the Senate, Feb. 3, 1869; quoted by Judge Cooley in Story on the Consti- 18 U. S. v. Reese, 92 U. S., 214, 217. Supra, § 38. islature,21 and the Georgia legislature after its reorganization under an act of Congress,22 gave the ratifications of their respective States. The legislatures of California, Delaware, Kentucky, Maryland, unanimously, and New Jersey, voted against a ratification. In Tennessee, the Amendment failed to pass the House, and was never reported to the Senate by the Committee on Federal Relations, to whom it was referred. Oregon also failed to ratify.23 On March 30th, 1870, the Secretary of State filed a certificate stating that the Fifteenth Amendment had been adopted.24 25 The Fifteenth Amendment was self-executing, and immediately upon its adoption erased from all State constitutions and statutes the provisions obnoxious to its commands.26 "It does not confer the right of suffrage on any one. It merely invests citizens of the United States with the constitutional right of exemption from discrimination in the enjoyment of the elective franchise on account of race, color, or previous condition of servitude." 27 of an amendment to the Federal Constitution. His action was approved by a majority of the members present, some taking the position that the presence of two-thirds of the actual members of the house was sufficient in all cases. The amendment was ratified by two-thirds of the members and a majority of all originally elected, and then question as to its validity was raised in Congress. (McPherson, History of Reconstruction, pp. 490– 491, note; Corbin v. Butler, Taft's Senate Election Cases, continued by Furber, pp. 541, 551; infra, Ch. XVIII.) 25 Civil Rights Cases, 109 U. S., 3, 20. 26 Neal v. Delaware, 103 U. S., 370, 383. 27 U. S. v. Harris, 106 U. S., 629, 637; infra, §53. In Mills v. Green, 67 Fed. R., 818, which was afterwards reserved upon another point, and is a case of very doubtful authority, Judge Goff held that this amendment invalidated a registration law of South Carolina, § 53. The Power of Congress over the Right of Suffrage. The only express power of Congress to affect the right of suffrage within the States is contained in the second section of the Fifteenth Amendment, which provides "that the Congress shall have power to enforce this article by appropriate legislation." Pursuant to this, Congress may pass a law to protect the right to vote, at least for representatives in the lower House, by making criminal a conspiracy to prevent, by force or intimidation, a person from exercising his right of suffrage at such an election on account of his race, color, or previous condition of servitude.1 This amendment, however, gives Congress no power to legislate for the protection of any civil rights of colored men, or others, except the right to vote free from discrimination as aforesaid. It was the opinion of the Supreme Court of Pennsylvania, that the act of Congress which provided that "all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to the provost-marshal within sixty days after the proclamation hereinafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their right to become citizens, and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any right of citizens thereof," 3 was not a penalty for the original desertion previously committed, but for persistence in the crime, and consequently not an ex post facto law; and that the United States had the power, in the exercise of its right to punish the citizen of a State for a crime against the United States, to deprive him, by imprisonment or removal from the State, of his opportunity to vote, and, as incidental thereto, to deprive him of the right to vote.* Although Congress has no further powers to affect the right of that discriminated against ignorant voters, white as well as black. § 53. 1 Ex parte Yarbrough, 110 U. S., 651. See also U. S. v. Reese, 92 U. S., 214, 218. 2 Civil Rights Cases, 109 U. S., 3. 3 Act of March 23, 1865, 13 St. at L., p. 490. See U. S. R. S., § 1996. 4 Huber v. Reilly, 53 Pa. St., 112; s. c. Brightly's Election Cases, 69; McCrary on Elections (3d ed.), § 87. suffrage within the States, it may regulate the exercise of that right in the election of members of Congress, under the clause of the Constitution which grants the express power to regulate the time, place and manner of such elections.5 This will be discussed subsequently. Under its power to admit States into the Union, Congress may refuse to act until a State constitution has been adopted containing provisions as to the right of suffrage that meet its approval. Under color of this power, and that to guarantee to each State a republican form of government, Congress imposed as a condition of the rehabilitation of the reconstructed States, that each of their constitutions should be so amended as to grant the right of suffrage to all— "male citizens of said State twenty-one years old and upward, of whatever race, color or previous condition, who have been residents of said State for one year previous to such election, except such as may be disfranchised for participation in rebellion or felony at common law."7 And in each of the acts readmitting them to representation Congress provided that the State constitution "shall never be so amended or changed as to deprive any citizens of the United States of the right to vote who are entitled to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State; Provided that any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters. "8 These statutes are inoperative upon the power of those States to amend their constitutions so as to restrict the right of suffrage within the limitations of the Fifteenth Amendment.9 Congress has the absolute power to regulate and restrict the suffrage in the Territories, and in the District of Columbia, al 5 Constitution, Article I, Section 4. 6 Constitution, Article IV, Section 3. 714 St. at L., p. 429; supra, § 38, over note 103. › Supra, § 37. Sproule v. Fredericks, 69 Miss., 898: s. c. 11 So. Rep., 472; Pollard's Lessee v. Hagan, 3 How., 212, 223, 228; Permoli v. First Municipality, 3 How., 589, 610; Strader v. Graham, 10 How., 82; Withers v. Buckley, 20 How., 84, 93. 10 though it abridges the rights of electors under previous laws; provided that in so doing it does not enact a bill of attainder or an ex post facto law,11 or a discrimination on account of race, color, or previous condition of servitude.12 In the exercise of this power, Congress may prohibit a polygamist to vote, even though he does not actually cohabit with more than one wife, if, after having previously contracted a polygamous marriage, he continues to live with two or more women in the same family, treating them as his wives in all respects except actual sexual connection; and it may authorize a territorial legislature to disfranchise from the rights to vote and hold office all persons who themselves teach, advise, or encourage polygamy, or are members of any order or association which gives such teaching, advice, or encouragement.13 In this manner the Constitution has been circumvented. § 54. Limitations of the Federal Constitution on the Power of the States over the Right of Suffrage. The only limitations imposed by the Federal Constitution upon the power of the States to regulate the right of suffrage are the Fifteenth Amendment, the guaranty to each State of a republican form of government,1 and the inhibitions against the enactment of bills of attainder and ex post facto laws.2 The Fifteenth Amendment has been previously considered.3 Should a State so restrict the right of suffrage as to establish a narrow oligarchy, Congress under its power to guarantee to all the inhabitants of the State a republican form of government may perhaps abrogate so much of the State legislation or constitution as contains the restriction.4 Some authorities hold that disfranchisement, either directly or 10 Murphy v. Ramsey, 114 U. S., 15, 45; Innis v. Bolton, 2 Idaho T., 407; s. c. 17 Pac. Rep., 264; Wooley v. Watkins, 2 Idaho T., 555. 11 Constitution, Article I, Section 9. 12 Fifteenth Amendment. 18 Davis v. Beason, 133 U. S., 333, 347; but see State v. Findley, 20 Nevada, 198; s. c. 19 Pac. Rep., 241; where under a State constitution giving every male citizen except convicts and paupers the right to vote, it was held that Mormons could not be excluded by means of a test - oath or otherwise. § 54. 1 Constitution, Article IV, Section 4. 2 Ibid., Article I, Section 10. 4 Constitution, Article IV, Section 4; supra, § 38, and infra. |