Congressional action

9971

On March 22, 1954, during the 2d session of the 83d Congress, Representative Laurence Curtis of Massachusetts introduced House Concurrent Resolution 218, dealing with the subject of residence requirements for voting. In its original form, the resolution proposed that Congress recommend to the States "the immediate enactment of appropriate legislation to enable a person to vote for Federal officials, when such person would be eligible to vote for such Federal officials but for the residence requirements of the State in which he is residing." The resolution was reported by the Committee on House Administration. On August 5, 1954, unanimous consent was requested for its immediate consideration, but objection was heard. On August 9, the resolution was successfully called up. A committee amendment attaching an explanatory preamble was accepted, as was a revision of the body of the resolution to broaden its application to all, not just Federal, elections. In addition, the word "suggests" was substituted for "recommends" and "consideration" was inserted in lieu of "immediate enactment." In this form the concurrent resolution was agreed to by the House. It died in the Senate."

Mr. Curtis reintroduced his proposal in the following Congress as House Concurrent Resolution 94. It passed the House on June 30, 1955." The Senate agreed to the resolution on January 16, 1956. The final text read as follows: "Whereas many citizens are deprived of the right to vote because they have recently moved from one State to another and have not subsequent to such move complied with the residence requirements of the State to which they have moved; and

"Whereas it is desirable that citizens should be entitled to vote for the office of President and Vice President whether or not they had moved from one State to another; and

"Whereas such disfranchisement could be avoided by reciprocal arrangements between the several States which would recognize the right of a citizen who had moved from one State to another to continue to vote in the State from which he had moved for such reasonable period of time as would enable him to fulfill the residence requirements in the State to which he had moved: Therefore be it

"Resolved by the House of Representatives (the Senate concurring), That the Congress expresses itself as favoring, and recommends to the several States the consideration of appropriate legislation to enable a person to vote for President and Vice President when such person would be eligible to vote but for the fact that he had moved from one State to another and had not yet fulfilled the residence requirements of such State to which he had moved."

Note that the third paragraph of the resolution appears to endorse State legislation similar to the Connecticut model.

Congress has taken no further action in this field. Two resolutions were introduced during the 1st session of the 86th Congress but neither was reported out of committee. One was introduced on February 17, 1959, by Senator Pat McNamara of Michigan. It called for a constitutional amendment prescribing maximum qualifications for voting in Federal elections as (1) citizenship, (2) age 21, and (3) 1-year residence in a State." On September 10, 1959, Representative John Brademas of Indiana introduced House Joint Resolution 524 which proposed a constitutional amendment restricting State voter qualifications to those of "nonage, nonresidence, or imprisonment."

Constitutionality of Federal Legislation 19

99 78

May Congress regulate by legislation the residence qualification of voters in Federal elections? Apparently it may not. Other than unenforceable recommendations to the States, such as House Concurrent Resolution 94, 84th Congress, described above, it would appear that an amendment to the Constitution of the United States is the only method available to Congress for modifying such requirements.

71 Congressional Record, 83 Cong., 2 sess., Aug. 5, 1954: 13468-13469.

72 Ibid.

78 Congressional Record, 83 Cong., 2 sess., Aug. 9, 1954: 13816.

74 Congressional Record, 84 Cong., 1st sess., June 30, 1955: 12395-12396.

75 Congressional Record, 84 Cong., 2 sess., Jan. 16, 1956: 533.

70 70 Stat. 84.

S.J. Res. 51. Digest of Public Bills, 86 Cong., 1 sess., final issue, 1959, p. B-4. 78 Ibid., p. F-30.

79 This section is based largely upon a previously prepared memorandum by Mollie Z. Margolin of the American Law Division, Legislative Reference Service.

Under the terms of article I, section 2, clause 1, and amendment XVII of the Constitution, the people of the several States are guaranteed the right to vote for Representatives and Senators.80 But in both instances the Constitution states further that "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature (s)." Thus, while the States may not directly prescribe the qualifications of voters for Members of Congress as such, the qualifications the States prescribe for electors of the most numerous branch of their legislatures are adopted by the Constitution for this purpose.

The Supreme Court of the United States discussed the point in Ex parte Yarborough (110 U.S. 651, 663):

"The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the population branch of their own legislature, and the Constitution of the United States says the same persons shall vote for members of Congress in that State. It adopts the qualification thus furnished as the qualification of its own electors for members of Congress." It would appear, therefore, that the right to vote for Members of Congress is derived from the United States Constitution, and Congress may legislate to protect the rights of those who qualify under State law. But Congress may not legislate as to the qualifications of the voters since this power is given by the Constitution to the States. As in the case of the 15th and 19th amendments, which forbid the States to deny any citizen the voting privilege on account of race, color, previous condition of servitude, or sex, it would require a constitutional amendment to effect any change in the residence requirement for electors of Senators and Representatives.

Insofar as the election of the President and Vice President is concerned, article II, section 1, clause 2 of the Constitution of the United States provides:

"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. * * *"

The word "appoint" in this clause has been interpreted in its broadest sense. Thus, the appointment and mode of appointment of Presidential and Vice Presidential electors are said to belong exclusively to the States." If this be so, in a State which selects as its mode of appointment election by the people, the qualifications of the voters are part of this mode. Such qualifications are therefore State responsibilities reserved to them by the Constitution.

APPENDIX

DRAFTING COMMITTEE OF STATE OFFICIALS

SUGGESTED LEGISLATION

[Title should conform to state requirements. The following is a suggestion: "An Act Concerning the Temporary Retention of the Elective Franchise by Electors Who Have Removed from the State."]

(Be it enacted, etc.)

Section 1. Each person who is properly registered as an elector in any [election] [voting] district in this state and who has removed to another state shall retain his right to vote for presidential electors to be nominated or elected, or for President and Vice President of the United States in any preferential or other direct primary election for nomination or preference of candidates for said office, and not other wise, in the [election] [voting] district from which he has removed, for a period of [fifteen months] after such removal, provided he shall not, during such period, have become an elector in such other state. The provisions of this section shall be in addition to and not in substitution for any voting rights otherwise enjoyed by an elector of this state.

80 See, Wiley v. Sinkles (1900), 179 U.S. 58, 62; Swafford v. Templeton (1902), 185 U.S. 487, 492; U.S. v. Aczel (1915), 219 Fed. 917, 929.

81 McPherson v. Blacker, 146 U.S. 1, 27, 35.

1 The period should be sufficient to acquire voting residence in new state.

Source: Suggested State legislation program for 1955. P. 79.

Section 2. Votes cast in accordance with the provisions of this act shall be by absentee ballot, the form of which shall be prescribed by the Secretary of State pursuant to the provisions of [Insert reference to law governing absentee voting in general].

Section 3. [Insert penalty provisions, if desired, regarding double voting.] Section 4. [Insert effective date.]

SUGGESTED CONSTITUTIONAL AMENDMENT

"SECTION 1. Every citizen of the United States of the age of twenty-one years or older who has resided in any State or Territory six months and in the voting precinct three months, immediately before offering to vote, shall be entitled to vote at any primary election or other election therein, in which candidates for any public office are nominated or elected, except that the privilege of voting shall not extend to persons in confinement for crime nor to persons adjudicated unsound of mind.

"SECTION 2. Congress shall have power to enforce this Article by appropriate legislation."

Source: McGovney, Dudley D. The American suffrage medley versity of Chicago Press, 1949.

P. 181.

Chicago, Uni

(The following is reprinted from Good Housekeeping, July 1960:)

THE IRON CURTAIN AROUND THE BALLOT Box

(By Eugene Burdick (coauthor of "The Ugly American"))

Most States provide that ex-felons, insane persons, and noncitizens cannot vote in elections. This seems reasonable. But there is a huge group of people who are intelligent and sane, who have not been in prison, and who are citi zens-but who cannot vote. They cannot vote for a single reason: they are mobile. No one thinks this is particularly reasonable, but no one is doing much about it. Meanwhile, there are a vast and steadily growing number of Americans who are currently disenfranchised.

Most States require that before you can vote, even for the President of the United States, you must have lived in your Staate, county, and voting district certain lengths of time. Usually the periods are 1 year in the State, 90 days in the county, and 30 days in the district, but they are much longer in some States. If you merely move across the street 30 days before an election, you can lose your right to vote. Only recently have we come to realize that this antiquated voting requirement is depriving a great many people of one of their most fundamental rights as citizens of the United States-that is, their right to vote.

Take the case of Jim Mainard as an example of how the system works. The name is changed, but the facts are true. Jim, 35 years old and a college graduate with an IQ of 132, is regarded by his corporation as a promising executive. His wife is also a college graduate, and they have three children. Jim was recently transferred from New York to California as the result of a promotion, which also raised his salary to $9,600 a year. The company plans for Jim to spend 2 years in Los Angeles and then to move to San Francisco and there take over management of its west coast headquarters.

The Mainards were unable to vote for the Governor and U.S. Senator and Congressman in California last year, and this year they will be unable to vote for the President of the United States-to say nothing of the possibility of a whole range of ballot proposition which could affect them very directly. The Mainards-to put it quite bluntly-have been disenfranchised.

"We have been moving around so much," Jim says, "that I haven't voted even once since I left college. To have been able to vote in New York, I would have had to have lived in the State 1 year, the county 4 months, and the district 30 days. I lived in the State 1 year all right, but I was on a training program which moved me from one branch of the company to another, each in a different county. Also, the company, like most large organizations, makes a point of moving you in the middle of the summer so that your children can start the school year without missing time. As a result, we always arrived in the new county in August. This never gave us time to qualify for the 4 months' county residency before the November election rolled around."

Not only do most companies move their executive personnel during the summer, but in many large cities the fall is "moving time." As a result, there is a great flow from the city to the suburbs and from one district within the city to another. Many of these people, unless they have taken elaborate precautions, have found themselves unable to vote when the next election came. This August, when Jim Mainard is transferred to San Francisco, he will again have to meet a county residency requirement in time to vote this year.

This is, you might say, an exceptional situation, one of the tiny, but unavoidable, cases that occur in a complex modern society. You would be wrong. Bureau of the Census Abstracts and Sociological Studies indicate that somewhere between 5 and 10 million people move in the United States every year. Most of these "mobiles," as they are called, will be unable to vote in the year they move. Indeed, it is quite possible that if these people were allowed to vote many State and even presidential elections would turn out differently. Scholars have noted, for example, that presidential elections are usually decided by very narrow margins. Even in the "landslide" choice of President Eisenhower in 1956, if 4 percent of the voters had voted differently, Adlai Stevenson might be President today.

It is not, however, the final result of the elections which causes sociologists and psychologists to be concerned. They are much more worried about the psychological damage to a citizen who is, time after time, denied the right to vote. Part of the American promise, a glowing part of our tradition, driven home to us from childhood, is that each of us can share in the shaping of our political life by casting a ballot. But for utterly trivial reasons we now find millions of citizens deprived of the right to vote.

Who are the people hurt by the invisible wall around the ballot box? In general, they are precisely the people who act in the best American traditionthose who have the gumption to pull up stakes and move to take advantage of new opportunities. William Whyte, author of "The Organization Man," the study of the business executive, has proved that the person who moves most often is usually in the higher income brackets. The authors of "They Went to College" have discovered that the higher the educational level of an individual, the more he will move about the country, seeking the best opportunities.

There are a substantial number of mobiles who do not fit this description, of course. This group is made up of migratory workers; workers in such seasonal jobs as lumber, construction, and dam building; drifters; and a sizable number of what we used to call hoboes. In general, these people, psychologists tell us, have little political interest and little political information. They seldom wish to register, and they seldom vote. However, there is considerable evidence that if there were a simple, easily understood manner of registration their political interest would be stimulated. It is altogether possible that they might be turned into active, participating citizens. We should, in any case, make the effort.

There is a third great group of Americans discriminated against by the present voting laws. This consists of the hundreds of thousands of loyal Americans who make their careers in the Army, Navy, Air Force, or Marine Corps or who spend several years in these branches of the Armed Forces as part of their military obligation. The theory is that a serviceman and his family will keep up political ties in their home State. The simple fact is that many career people never serve in their home State, know little or nothing of its politics, and, at the same time, are denied the right to vote in the localities in which they live. A revision or elimination of the residency laws would allow these people to enter the political life of the communities in which they are stationed.

Residency requirements grew out of the need to prevent rigged elections. Candidates used to organize their supporters like small armies, having them march from poll to poll and vote again and again, giving new name and address at each polling place. Some city machines began to "import" voters. For example, large numbers of voters were brought into Memphis from Arkansas, across the Mississippi River. These "visitors" voted and revoted in the city. In cities such as Philadelphia, it was not unusual to have 60,000 illegal votes cast in a single election. The only restraint on multiple and corrupt voting was the ability of the opposition to stop it. Voting, originally conceived as a right of every citizen, was becoming a right which was exercised in an atmosphere of guerrilla, rowdy, alcoholic warfare.

By 1890 most States were moving to correct these flagrant outrages through a registration procedure calling for a residency requirement, which stated that a voter had to have lived in the State, county, and district a set time. The

residency requirement made sense for two reasons. First, it allowed voting officials to verify the voters by checking their names against the addresses. Second, it was reasonable to assume that it would take a new resident some time to learn the issues and personalities involved in State and local politics. Today, however, the conditions which made fraudulent voting possible have almost completely disappeared. The big-city boss, for example, no longer has great masses of newly arrived, politically ignorant immigrants to deploy and have vote as he sees fit. Voting officials have also developed sound techniques, along with a corps of people who understand them well. Today both the voting officials and representatives of the political parties watch elections like hawks, ready to pounce at the faintest sign of irregularity.

There are available any number of sensible procedures which would make it possible for newcomers to vote and which would still eliminate fraudulent voting. One ingenious possibility, among many, would take advantage of the rapidity and skill with which modern electronic machinery can handle cards and information. With this system each newcomer would merely identify himself properly when he entered a new State. He would then be issued a voting license, which would indicate the district and county in which he lived. This information would be coded onto a card and kept in the State capitol, along with separate cards for all other voters. At voting time the voter would receive a keyed card, which would tell him where to vote. A duplicate of the card would go to the designated polling place. When the voter moved out of the district or county, he would merely drop his "license" in the mail, indicating his new address, and the machines would automatically assign him to a new precinct. Such a procedure not only would be workable and avoid the ponderous registration procedures now effective in most States, but would, in all probability, be cheaper than the present system.

Today, moreover, it is no longer necessary for a person to have lived a year in a State before he understands its politics. In recent years we have developed our means of communication and education in enormous strides. If a person has been in a State a short time, -he has had access to enough information on which to base a political decision-through newspapers, television, and radio and through the activities of such nonpartisan organizations as the League of Women Voters. Also, all candidates and parties go to elaborate pains to put their programs before the voters.

There is every indication that American mobility will increase, rather than decrease, in the future. Air travel is getting even quicker and less expensive. Railways have developed family plans that make it easier to move cross-country. The unrolling of the freeways across America is a constant invitation to the venturesome to strike out for new frontiers. Whole communities of trailers now dot the Nation. Around the cities are thick belts of suburban homes which are built, financed, and designed for a rapid turnover in occupancy. It has become almost effortless for a family to wind up its affairs, move a thousand miles, and set up a new home. The rotation and training plans of big corporations and government agencies, the natural impulse of Americans to move on, the increased ease of moving all assure sociologists that an increasing number of our population will become mobile.

The need for doing something to protect the voting rights of this growing number of mobile citizens is made more urgent by the fact that this year we will again vote for a President. If the voting laws remain unchanged, at least 5 million intelligent voters will be denied the privilege of casting their ballot.

This is not a party issue. The denied vote cuts across party lines. It is a national issue, and it is time something was done about it on a nationwide basis

(The following is a study prepared by Walter Kravitz, History and Government Division, Legislative Reference Service, Library of Congress, dated March 28, 1961.)

STATE ACTION TO LOWER THE VOTING AGE, 1943-60

Since the introduction in the 78th Congress, 1st session, of House Joint Resolution 39, calling for a constitutional amendment to extend the right to vote to citizens 18 years of age or older, at least 47 State governments have dealt with the matter of lowering the voting age in one way or another. This report presents a State-by-State survey of such action, followed by a summary of the most important of these.