Section 2: The House of Representatives

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Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requis...

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Clause 1. Congressional Districting

Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each State be so structured that each elected representative should represent substantially equal populations. While this requirement has generally been gleaned from the equal protection clause of the Fourteenth Amendment, in Wesberry v. Sanders, the Court held that "construed in its historical context, the command of Art. 1, § 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."

Court involvement in this issue developed slowly. In our early history, state congressional delegations were generally elected at-large instead of by districts, and even when Congress required single-member districting and later added a provision for equally populated districts the relief sought by voters was action by the House refusing to seat Members- elect selected under systems not in compliance with the federal laws. The first series of cases did not reach the Supreme Court, in fact, until the States began redistricting through the 1930 Census, and these were resolved without reaching constitutional issues and indeed without resolving the issue whether such voter complaints were justiciable at all. In the late 1940s and the early 1950s, the Court utilized the "political question" doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr.

For the Court in Wesberry, Justice Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase "by the People," to guarantee equality of representation in the election of Members of the House of Representatives. Justice Harlan in dissent argued that the statements relied on by the majority had uniformly been in the context of the Great Compromise-Senate representation of the States with Members elected by the state legislatures, House representation according to the population of the States, qualified by the guarantee of at least one Member per State and the counting of slaves as three-fifths of persons-and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress, and that the Court action overrode a congressional decision not to require equally-populated districts.

The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the State present a principled justification for the deviations from equality which any districting plan presented. But in Kirkpatrick v. Preisler, a sharply divided Court announced the rule that a State must make a "good-faith effort to achieve precise mathematical equality." Therefore, "[u]nless population variances among congressional districts are shown to have resulted despite such [good-faith] effort [to achieve precise mathematical equality], the State must justify each variance, no matter how small." The strictness of the test was revealed not only by the phrasing of the test but by the fact that the majority rejected every proffer of a justification which the State had made and which could likely be made. Thus, it was not an adequate justification that deviations resulted from (1) an effort to draw districts to maintain intact areas with distinct economic and social interests, (2) the requirements of legislative compromise, (3) a desire to maintain the integrity of political subdivision lines, (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found, (5) an attempt to compensate for population shifts since the last census, or (6) an effort to achieve geographical compactness.

Illustrating the strictness of the standard, the Court upheld a lower court voiding of a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons. Adhering to the principle of strict population equality in a subsequent case, the Court refused to find a plan valid simply because the variations were smaller than the estimated census undercount. Rejecting the plan, the difference in population between the most and least populous districts being 3,674 people, in a State in which the average district population was 526,059 people, the Court opined that, given rapid advances in computer technology, it is now "relatively simple to draw contiguous districts of equal population and at the same time . . . further whatever secondary goals the State has."

Attacks on partisan gerrymandering have proceeded under equal-protection analysis, and, while the Court has held justiciable claims of denial of effective representation, the standards are so high neither voters nor minority parties have yet benefitted from the development.

Elector Qualifications

It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections solely in the discretion of the States, save only for the express requirement that the States could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature. This language has never been expressly changed, but the discretion of the States, and not only with regard to the qualifications of congressional electors, has long been circumscribed by express constitutional limitations and by judicial decisions. Further, beyond the limitation of discretion on the part of the States, Congress has assumed the power, with judicial acquiescence, to legislate to provide qualifications at least with regard to some elections.Thus, in the Voting Rights Act of 1965 Congress legislated changes of a limited nature in the literacy laws of some of the States, and in the Voting Rights Act Amendments of 1970 Congress successfully lowered the minimum voting age in federal elections and prescribed residency qualifications for presidential elections, the Court striking down an attempt to lower the minimum voting age for all elections. These developments greatly limited the discretion granted in Article I, § 2, cl. 1, and are more fully dealt with in the treatment of § 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, and Congress has had the power under Article I, § 4, to legislate to protect that right against both official and private denial.

Clause 2. Qualifications of Members of Congress

Clause 2. No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an inhabitant of the State in which he shall be chosen.

When the Qualifications Must Be Possessed

A question much disputed but now seemingly settled is whether a condition of eligibility must exist at the time of the election or whether it is sufficient that eligibility exist when the Member-elect presents himself to take the oath of office. While the language of the clause expressly makes residency in the State a condition at the time of election, it now appears established in congressional practice that the age and citizenship qualifications need only be met when the Member-elect is to be sworn. Thus, persons elected to either the House of Representatives or the Senate before attaining the required age or term of citizenship have been admitted as soon as they became qualified.

Exclusivity of Constitutional Qualifications

Congressional Additions.-Writing in The Federalist with reference to the election of Members of Congress, Hamilton firmly stated that "[t]he qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature." Until the Civil War, the issue was not raised, the only actions taken by either House conforming to the idea that the qualifications for membership could not be enlarged by statute or practice. But in the passions aroused by the fratricidal conflict, Congress enacted a law requiring its members to take an oath that they had never been disloyal to the National Government. Several persons were refused seats by both Houses because of charges of disloyalty, and thereafter House practice, and Senate practice as well, was erratic. But in Powell v. McCormack, it was conclusively established that the qualifications listed in cl. 2 are exclusive and that Congress could not add to them by excluding Members-elect not meeting the additional qualifications.

Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and immunity from the process of a state court, that he had wrongfully diverted House funds for his own uses, and that he had made false reports on the expenditures of foreign currency. The Court determination that he had been wrongfully excluded proceeded in the main from the Court's analysis of historical developments, the Convention debates, and textual considerations. This process led the Court to conclude that Congress' power under Article I, § 5 to judge the qualifications of its Members was limited to ascertaining the presence or absence of the standing qualifications prescribed in Article I, § 2, cl. 2, and perhaps in other express provisions of the Constitution. The conclusion followed because the English parliamentary practice and the colonial legislative practice at the time of the drafting of the Constitution, after some earlier deviations, had settled into a policy that exclusion was a power exercisable only when the Member-elect failed to meet a standing qualifications because in the Constitutional Convention the Framers had defeated provisions allowing Congress by statute either to create property qualifications or to create additional qualifications without limitation, and because both Hamilton and Madison in the Federalist Papers and Hamilton in the New York ratifying convention had strongly urged that the Constitution prescribed exclusive qualifications for Members of Congress.

Further, the Court observed that the early practice of Congress, with many of the Framers serving, was consistently limited to the view that exclusion could be exercised only with regard to a Member-elect failing to meet a qualification expressly prescribed in the Constitution. Not until the Civil War did contrary precedents appear, and later practice was mixed. Finally, even were the intent of the Framers less clear, said the Court, it would still be compelled to interpret the power to exclude narrowly. "A fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them.' 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' own post-Civil War exclusion cases, against 'vesting an improper and dangerous power in the Legislature.' 2 Farrand 249." Thus, the Court appears to say, to allow the House to exclude Powell on this basis of qualifications of its own choosing would impinge on the interests of his constituents in effective participation in the electoral process, an interest which could be protected by a narrow interpretation of Congressional power.

The result in the Powell case had been foreshadowed earlier when the Court held that the exclusion of a Member-elect by a state legislature because of objections he had uttered to certain national policies constituted a violation of the First Amendment and was void. In the course of that decision, the Court denied state legislators the power to look behind the willingness of any legislator to take the oath to support the Constitution of the United States, prescribed by Article VI, cl. 3, to test his sincerity in taking it. The unanimous Court noted the views of Madison and Hamilton on the exclusivity of the qualifications set out in the Constitution and alluded to Madison's view that the unfettered discretion of the legislative branch to exclude members could be abused in behalf of political, religious or other orthodoxies. The First Amendment holding and the holding with regard to testing the sincerity with which the oath of office is taken is no doubt as applicable to the United States Congress as to state legislatures.

State Additions.-However much Congress may have deviated from the principle that the qualifications listed in the Constitution are exclusive when the issue has been congressional enlargement of those qualifications, it has been uniform in rejecting efforts by the States to enlarge the qualifications. Thus, the House in 1807 seated a Member-elect who was challenged as not being in compliance with a state law imposing a twelve-month durational residency requirement in the district, rather than the federal requirement of being an inhabitant of the State at the time of election; the state requirement, the House resolved, was unconstitutional. Similarly, both the House and Senate have seated other Members- elect who did not meet additional state qualifications or who suffered particular state disqualifications on eligibility, such as running for Congress while holding particular state offices.

The Supreme Court reached the same conclusion as to state power, albeit by a surprisingly close 5-4 vote, in U.S. Term Limits, Inc. v. Thornton. Arkansas, along with twenty-two other States, all but two by citizen initiatives, had limited the number of terms that Members of Congress may serve. In striking down the Arkansas term limits, the Court determined that the Constitution's qualifications clauses establish exclusive qualifications for Members that may not be added to either by Congress or the States.Six years later, the Court relied on Thornton to invalidate a Missouri law requiring that labels be placed on ballots alongside the names of congressional candidates who had "disregarded voters' instruction on term limits" or declined to pledge support for term limits.

Both majority and dissenting opinions in Thornton were richly embellished with disputatious arguments about the text of the Constitution, the history of its drafting and ratification, and the practices of Congress and the States in the nation's early years, and these differences over text, creation, and practice derived from disagreement about the fundamental principle underlying the Constitution's adoption.

In the dissent's view, the Constitution was the result of the resolution of the peoples of the separate States to create the National Government. The conclusion to be drawn from this was that the peoples in the States agreed to surrender only those powers expressly forbidden them and those limited powers that they had delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retain them. Thus, "where the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it." The Constitution's silence as to authority to impose additional qualifications meant that this power resides in the states.

The majority's views were radically different. After the adoption of the Constitution, the states had two kinds of powers: reserved powers that they had before the founding and that were not surrendered to the Federal Government, and those powers delegated to them by the Constitution. It followed that the States could have no reserved powers with respect to the Federal Government. "As Justice Story recognized, 'the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them.... No state can say, that it has reserved, what it never possessed.'" The States could not before the founding have possessed powers to legislate respecting the Federal Government, and since the Constitution did not delegate to the States the power to prescribe qualifications for Members of Congress, the States did not have any such power.

Evidently, the opinions in this case reflect more than a decision on this particular dispute. They rather represent conflicting philosophies within the Court respecting the scope of national power in relation to the States, an issue at the core of many controversies today.

Clause 3. Apportionment of Seats in the House

Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons].The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut, five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

The Census Requirement

The Census Clause "reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the States, would determine the manner of conducting the census." These determinations "all suggest a strong constitutional interest in accuracy." The language employed - "actual enumeration" - requires an actual count, but gives Congress wide discretion in determining the methodology of that count. The word "enumeration" refers to a counting process without describing the count's methodological details. The word "actual" merely refers to the enumeration to be used for apportioning the Third Congress, and thereby distinguishes "a deliberately taken count" from the conjectural approach that had been used for the First Congress. Finally, the conferral of authority on Congress to "direct" the "manner" of enumeration underscores "the breadth of congressional methodological authority." Thus, the Court held in Utah v. Evans, "hot deck imputation," a method used to fill in missing data by imputing to an address the number of persons found at a nearby address or unit of the same type, does not run afoul of the "actual enumeration" requirement. The Court distinguished imputation from statistical sampling, and indicated that its holding was relatively narrow. Imputation was permissible "where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely."

While the Census Clause expressly provides for an enumeration of persons, Congress has expanded the scope of the census by including not only the free persons in the States, but also those in the territories, and by requiring all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court, and is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action.

Although taking an enlarged view of its census power, Congress has not always complied with its positive mandate to re-apportion representatives among the States after the census is taken. It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929, it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called "method of major fractions," which had been earlier employed in the apportionment of 1911, and which has now been replaced with the "method of equal proportions." Following the 1990 census, a State that had lost a House seat as a result of the use of this formula sued, alleging a violation of the "one person, one vote" rule derived from Article I, § 2. Exhibiting considerable deference to Congress and a stated appreciation of the difficulties in achieving interstate equalities, the Supreme Court upheld the formula and the resultant apportionment. The goal of absolute population equality among districts "is realistic and appropriate" within a single state, but the constitutional guarantee of one Representative for each state constrains application to districts in different states, and makes the goal "illusory for the Nation as a whole."

While requiring the election of Representatives by districts, Congress has left it to the States to draw district boundaries. This has occasioned a number of disputes. In Ohio ex rel.

Davis v. Hildebrant, a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to state legislatures by the Constitution, the Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution.

Clause 4. Vacancies

Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

In general

The Supreme Court has not interpreted this clause.

Clause 5. Officers and Power of Impeachment

Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

In general

See analysis of Impeachment under Article II, section 4.

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The phrase "one person, one vote" which came out of this litigation might well seem to refer to election districts drawn to contain equal numbers of voters rather than equal numbers of persons. But it seems clear from a consideration of all the Court's opinions and the results of its rulings that the statement in the text accurately reflects the constitutional requirement. The case expressly holding that total population, or the exclusion only of transients, is the standard is Burns v. Richardson, 384 U.S. 73 (1966), a legislative apportionment case. Notice that considerable population disparities exist from State to State, as a result of the requirement that each State receive at least one Member and the fact that state lines cannot be crossed in districting. At least under present circumstances, these disparities do not violate the Constitution. U. S. Department of Commerce v. Montana, 503 U.S. 442 (1992).

Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College Dist., 397 U.S. 50 (1970) (local governmental units).

376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).

376 U.S. at 7.

Act of June 25, 1842, 5 Stat. 491.

Act of February 2, 1872, 17 Stat. 28.

The House uniformly refused to grant any such relief. 1 A. HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES 310 (1907). See L. SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT 135-138 (1941).

Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932); Wood v. Broom, 287 U.S. 1 (1932); Mahan v. Hume, 287 U.S. 575 (1932).

369 U.S. 186 (1962).

Wesberry v. Sanders, 376 U.S. 1 (1964).

376 U.S. at 7-18.

376 U.S. at 20-49.

Kirkpatrick v. Preisler, 385 U.S. 450 (1967), and Duddleston v. Grills, 385 U.S. 455 (1967), relying on the rule set out in Swann v. Adams, 385 U.S. 440 (1967), a state legislative case.

394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969).

Kirkpatrick v. Preisler, 394 U.S. 526 , 530 (1969).

394 U.S. at 531.

394 U.S. at 533. People vote as individuals, Justice Brennan said for the Court, and it is the equality of individual voters that is protected.

Id. Political "practicality" may not interfere with a rule of "practicable" equality.

394 U.S. at 533-34. The argument is not "legally acceptable."

394 U.S. at 534-35. Justice Brennan questioned whether anything less than a total population basis was permissible but noted that the legislature in any event had made no consistent application of the rationale.

394 U.S. at 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.

394 U.S. at 536. Justifications based upon "the unaesthetic appearance" of the map will not be accepted.

White v. Weiser, 412 U.S. 783 (1973). The Court did set aside the district court's own plan for districting, instructing that court to adhere more closely to the legislature's own plan insofar as it reflected permissible goals of the legislators, reflecting an ongoing deference to legislatures in this area to the extent possible.

Karcher v. Daggett, 462 U.S. 725 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State Bd. of Elections, 777 F. Supp. 634 (N.D. Ill. 1991) (three-judge court), in which the court adopted a congressional-districting plan in which 18 of the 20 districts had 571,530 people each and each of the other two had 571,531 people.

The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative apportionment case, but no doubt should exist that congressional districting is covered. See Badham v. Eu, 694 F. Supp. 664 (N.D. Cal.) (three- judge court) (adjudicating partisan gerrymandering claim as to congressional districts but deciding against plaintiffs on merits), aff'd, 488 U.S. 1024 (1988); Pope v. Blue, 809 F. Supp. 392 (W.D.N.C.) (three-judge court) (same), aff'd, 506 U.S. 801 (1992).

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.

Minor v. Happersett, 88 U.S. (21 Wall.) 162 , 171 (1875); Breedlove v. Suttles, 302 U.S. 277 , 283 (1937). See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 576-585 (1833).

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.

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 Dist., 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.

The power has been held to exist under § 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).

§ 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended.

Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).

Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.

Oregon v. Mitchell, 400 U.S. 112 , 119 -131, 135-144, 239-281 (1970).

Oregon v. Mitchell, 400 U.S. 112 , 134 , 147-150, 236-239, 285-292 (1970).

Oregon v. Mitchell, 400 U.S. 112 , 119 -131, 152-213, 293-296 (1970).

"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." Ex parte Yarbrough, 110 U.S. 651 , 663 (1884). See also Wiley v. Sinkler, 179 U. S. 58 , 62 (1900); Swafford v. Templeton, 185 U.S. 487 , 492 (1902); United States v. Classic, 313 U.S. 299 , 315 , 321 (1941).

United States v. Mosley, 238 U.S. 383 (1915).

United States v. Classic, 313 U.S. 299 , 315 (1941).

See S. Rep. No. 904, 74th Congress, 1st sess. (1935), reprinted in 79 CONG. REC. 9651-9653 (1935).

1 HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 418 (1907); 79 CONG. REC. 9841-9842 (1935); cf. HINDS' PRECEDENTS, supra § 429.

No. 60 (J. Cooke ed. 1961), 409. See also 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 623-627 (1833) (relating to the power of the States to add qualifications).

All the instances appear to be, however, cases in which the contest arose out of a claimed additional state qualification.

Act of July 2, 1862, 12 Stat. 502. Note also the disqualification written into § 3 of the Fourteenth Amendment.

1 HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 451, 449, 457 (1907).

In 1870, the House excluded a Member-elect who had been re-elected after resigning earlier in the same Congress when expulsion proceedings were instituted against him for selling appointments to the Military Academy. Id. at § 464. A Member-elect was excluded in 1899 because of his practice of polygamy, id. at 474-80, but the Senate refused, after adopting a rule requiring a two-thirds vote, to exclude a Member-elect on those grounds. Id. at §§ 481- 483. The House twice excluded a socialist Member-elect in the wake of World War I on allegations of disloyalty. 6 CANNON'S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 56-58 (1935). See also S. Rep. No. 1010, 77th Congress, 2d sess. (1942), and R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. DOC. NO. 71, 87th Congress, 2d sess. (1962), 140 (dealing with the effort to exclude Senator Langer of North Dakota).

395 U.S. 486 (1969). The Court divided eight to one, Justice Stewart dissenting on the ground the case was moot. Powell's continuing validity was affirmed in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the Court in its holding that the qualifications set out in the Constitution are exclusive and may not be added to by either Congress or the States, id. at 787- 98, and by the dissent, who would hold that Congress, for different reasons could not add to qualifications, although the States could. Id. at 875-76.

The Court declined to reach the question whether the Constitution in fact does impose other qualifications. 395 U.S. at 520 n. 41 (possibly Article I, § 3, cl. 7, disqualifying persons impeached, Article I, § 6, cl. 2, incompatible offices, and § 3 of the Fourteenth Amendment). It is also possible that the oath provision of Article VI, cl. 3, could be considered a qualification. See Bond v. Floyd, 385 U.S. 116 , 129 -131 (1966).

395 U.S. at 550.

H. Rep. No. 27, 90th Congress, 1st sess. (1967); 395 U.S. at 489-493.

Powell v. McCormack, 395 U.S. 486 , 518 -47 (1969).

395 U.S. at 522-31.

395 U.S. at 532-39.

395 U.S. at 539-41.

395 U.S. at 541-47.

395 U.S. at 547-48.

The protection of the voters' interest in being represented by the person of their choice is thus analogized to their constitutionally secured right to cast a ballot and have it counted in general elections, Ex parte Yarbrough, 110 U.S. 651 (1884), and in primary elections, United States v. Classic, 313 U.S. 299 (1941), to cast a ballot undiluted in strength because of unequally populated districts, Wesberry v. Sanders, 376 U.S. 1 (1964), and to cast a vote for candidates of their choice unfettered by onerous restrictions on candidate qualification for the ballot. Williams v. Rhodes, 393 U.S. 23 (1968).

Bond v. Floyd, 385 U.S. 116 (1966).

385 U.S. at 129-31, 132, 135.

385 U.S. at 135 n.13.

1 HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 414 (1907).

514 U.S. 779(1995). The majority was composed of Justice Stevens (writing the opinion of the Court) and Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting were Justice Thomas (writing the opinion) and Chief Justice Rehnquist and Justices O'Connor and Scalia. Id. at 845.

Article I, § 2, cl. 2, provides that a person may qualify as a Representative if she is at least 25 years old, has been a United States citizen for at least 7 years, and is an inhabitant, at the time of the election, of the State in which she is chosen. The qualifications established for Senators, Article I, § 3, cl. 3, are an age of 30 years, nine years' citizenship, and being an inhabitant of the State at the time of election.

The four-Justice dissent argued that while Congress has no power to increase qualifications, the States do. 514 U.S. at 845.

Cook v. Gralike, 531 U.S. 510 (2001).

See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995).

514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846-65.

514 U.S. at 802.

514 U.S. at 798-805. And see id. at 838-45 (Justice Kennedy concurring). The Court applied similar reasoning in Cook v. Gralike, 531 U.S. 510 , 522 -23 (2001), invalidating ballot labels identifying congressional candidates who had not pledged to support term limits. Because congressional offices arise from the Constitution, the Court explained, no authority to regulate these offices could have preceded the Constitution and been reserved to the states, and the ballot labels were not valid exercise of the power granted by Article I, § 4 to regulate the "manner" of holding elections. See discussion under Federal Legislation Protecting Electoral Process, infra.

The part of this clause relating to the mode of apportionment of representatives among the several States was changed by the Fourteenth Amendment, § 2 and as to taxes on incomes without apportionment, by the Sixteenth Amendment.

Utah v. Evans, 122 S. Ct. 2191, 2206 (2002).

Id.

Utah v. Evans, 122 S. Ct. 2191 (2002).

See also Wisconsin v. City of New York, 517 U.S. 1 (1996), in which the Court held that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute; and Franklin v. Massachusetts, 505 U.S. 788 (1992), upholding the practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the States of last residence. The mandate of an enumeration of "their respective numbers" was complied with, it having been the practice since the first enumeration to allocate persons to the place of their "usual residence," and to construe both this term and the word "inhabitant" broadly to include people temporarily absent.

Knox v. Lee (Legal Tender Cases). 79 U.S. (12 Wall.) 457 , 536 (1971) ("Who questions the power to [count persons in the territories or] collect[ ] . . . statistics respecting age, sex, and production?").

For an extensive history of the subject, see L. SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT (1941).

46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a.

U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992).

503 U.S. at 463. "The need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50," the Court explained. Id.

241 U.S. 565 (1916).

Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).


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