The 17th Amendment provides that senators be elected by the people directly.
Article I, Section 3, adopted as part of the Constitution on Sept. 17, 1787, originally provided that two senators from each state shall be chosen by the state legislature. The idea was proposed by delegate John Dickinson, a Delaware lawyer and politician.
The House of Representatives introduces a resolution calling for direct election of senators. From as early as the 1820s, growing conflict between political powers in various state legislatures means that a number of Senate seats go unfilled. For example in Indiana, the conflict between Democrats in the southern half of the state and the emerging Republican Party in the northern half prevents the election of any candidate for more than two years. As regional tensions over slavery and states’ rights increase – leading to the Civil War – these conflicts within state legislatures only worsened.
After he is elected by a plurality (that is, he received more votes than other candidates, but less than a majority) in a joint session of New Jersey’s legislature, John Stockton takes his seat in the Senate under a cloud of controversy. Although Stockton will serve from March 15, 1865, to March 27, 1866, the Senate eventually will declare the seat vacant. To support his cause during debate, Stockton will produce a “state-by-state analysis of senatorial election processes” that shows Senate election procedures in the United States vary considerably from state to state.
In Ex Parte Yarbrough, also known as the Ku Klux Klan cases, the U.S. Supreme Court upholds the convictions of Ku Klux Klan members who were tried under federal civil rights statutes for the beating and intimidation of people seeking to vote in a congressional election. The Court finds that the power to protect voters comes from the authority assigned to Congress in the Constitution.
Even though the states primarily had protected the right to vote in federal elections before the federal law, the Court says the federal government has the authority to protect voting in federal elections when necessary.
The federal law requires that the legislative chambers in each state meet separately, and name a senator by open vote. If the two chambers have not chosen the same person, the chambers are to meet in a joint session every day until one candidate receives a majority vote.
The law is the first change in the original process for selecting senators created by the framers, but it fails to remedy the deadlocks. In 1899, the Delaware legislature was so divided that the state legislature did not send a senator to Washington for four years. In fact, deadlocks increased significantly: 45 occurred between 1891 and 1905 in 20 states.
A constitutional amendment to elect senators by popular vote is proposed in Congress. The amendment will not pass until 1912 because of resistance in the Senate. From the 1870s on, citizen pressure for direct elections had grown. The House of Representatives passed several “popular election” resolutions by the required two-thirds majorities in the early 1890s. By 1902, the House will pass 19 resolutions calling for direct election of senators.
In the presidential election of 1896, the Populist Party incorporates the direct election of senators into its party platform, although neither the Democrats nor the Republicans pays much notice.
By 1911, at least 29 states nominate senators either in party primaries or general elections. Sen. Joseph Bristow from Kansas, with the support of many senators elected after these state reforms, proposes a constitutional amendment (without language dealing with race discrimination that had been included in earlier versions). Eight Southern senators and all Republican senators from New England, New York and Pennsylvania oppose Bristow’s resolution, but it is approved by the Senate and the measure moves to the House.
Despite many political fights, the House passes the 17th Amendment and sends it to the states for ratification.
Connecticut’s approval gives the 17th Amendment the required three-fourths majority, and it is added to the Constitution on April 8, 1913. The entire ratification process takes less than a year to complete. The following year, 1914, marks the first time all Senate elections are held by popular vote.
In Newberry v. United States, a Senate candidate in a state primary election challenges the constitutionality of the Federal Corrupt Practices Act. The candidate had been convicted of violating federal limits on the amount of money that could be used in primary and general elections.
The Court notes that although the 17th Amendment changed who elects senators (from state legislatures to voters in each state), it did not modify Article I, Section 4 of the Constitution. This provision gives states the power to determine the time, place and manner of holding Senate elections, unless Congress alters state rules. Here, where Congress has specifically spoken, the federal rules are permissible.
In Reed v. County Commissioners of Delaware County, the U.S. Supreme Court rules that a special committee of the Senate has the power to investigate a Pennsylvania Senate election. The Court holds that the 17th Amendment acknowledges a federal right to elect senators and that the Senate is authorized to protect these rights. The Court also finds that the power of the Senate committee comes from the Senate’s authority to judge the elections, votes, and qualifications of members of the Senate as written in Article I, Section 5 of the Constitution.
In United Public Workers v. Mitchell, the U.S. Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment. In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.
Such limitations, he argues, would be inconsistent with the First Amendment’s guarantee of freedom of speech, press, assembly and petition. Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.
In MacDougall v. Green, the U.S. Supreme Court upholds an Illinois statute that requires political parties to obtain at least 25,000 signatures to put its candidate on the ballot for U.S. Senate. The statute also requires at least 200 signatures from each of at least 50 counties in the state.
The Progressive Party claims the statute violates the equal protection clause of the 14th Amendment and the people’s right to directly elect their senators as written in the 17th Amendment. Its claim is based on the fact that the law treated counties as if they all had the same population, but in reality most of the voters lived in a small number of counties in the Chicago area. The Court rules, however, that the law does not violate either amendment.
A Georgia law establishes a primary voting system in which the popular vote of each county determines which candidate wins that county. Each county is then assigned a certain number of unit votes and the winner of the most unit votes wins the election. Because urban counties have many more voters than rural counties, some saw equating the votes of the two counties as unfair.
Because each rural voter would have the same impact as several urban voters, the rural voters had a much larger impact on the outcome of the election. In South v. Peters, the plaintiffs argue that this system violates the 14th Amendment’s equal protection clause and the 17th Amendment’s call for direct election. The U.S. Supreme Court allows the law, saying that the problem is a political one that should be left to the state government.
In Lassiter v. Northampton County Board of Elections, the U.S. Supreme Court upholds North Carolina’s requirement that all voters pass a literacy test to be qualified to vote. Finding that the rule is consistent with the 14th, 15th and 17th Amendments, the Court rules that the states have long been held to have broad powers to determine the conditions under which voting rights may be exercised.
Although the Court notes that state standards cannot be discriminatory or go against any restriction that Congress has imposed, it finds that states may reasonably impose requirements based on residence, age, and criminal record. Similarly, the Court holds, a state may consider the ability to read and write in determining the qualifications of voters.
At issue in Baker v. Carr is Tennessee’s use of 60-year-old district boundaries for the election of state legislative seats, despite the fact that the districts no longer reflected the distribution of the population. By maintaining old district boundaries, the state allotted rural citizens, who were mostly white, greater proportional representation than their counterparts in the growing cities, where ethnic minorities and blacks primarily lived.
Charles Baker, who filed the lawsuit against Joe Carr, the state official in charge of elections, said the state’s failure to break up growing districts diluted his vote in violation of the equal protection clause of the 14th Amendment. Reversing its earlier ruling in Colegrove v. Green, the Supreme Court agrees that the issue could be resolved by the courts rather than leaving the matter solely in the hands of state legislatures. After Baker, a number of lawsuits contest legislative redistricting.
Building on its earlier decision in Baker v. Carr and reversing South v. Peters, the U.S. Supreme Court in Gray v. Sanders finds that Georgia’s “county unit” voting system is unconstitutional. Relying in part on the 17th Amendment’s language that senators are to be chosen “by the people,” a voter in the Senate primary election challenges the system in which small rural districts are treated relatively the same as larger urban districts.
Because each rural voter would have the same impact as several urban voters, the rural voters had a much larger impact on the outcome of the election than urban voters. Writing for the majority of the Court, Justice William O. Douglas finds that this policy violates the equal protection clause of the 14th Amendment.
A three-judge District Court holds that a certificate of residence requirement established by the Virginia legislature as an alternative to payment of a poll tax in federal elections is an additional qualification to voting that violates the 17th Amendment and Article I, Section 2. In 1965, the Supreme Court, in Harman v. Forssenius will agree but bases its ruling on the 24th Amendment, rather than the 17th.
In Wesberry v. Sanders, voters in Georgia’s Fifth Congressional District challenge a state law dividing congressional districts because their district has two to three times more voters than other districts. Arguing that the votes in smaller districts would have a greater impact on the election than those lumped together in the larger districts, the Fifth District voters seek to have the divisions ruled unconstitutional and the election stopped.
The Court holds that the requirement in Article I, Section 2, of the Constitution that representatives be chosen “by the People of the several States” and the Seventeenth Amendment, which says that senators shall be “elected by the people,” mean that congressional districts should as close to the same size as practical.
After Congress passes a law that, among other requirements, lowers the voting age from 21 to 18, several states sue, claiming that states have the right determine how to run their own elections. In Oregon v. Mitchell, the U.S. Supreme Court finds that Congress has the right to regulate voter age in federal – but not state – elections.
The 17th Amendment, the Court holds, does not change this. “It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for voters in every election from President to local constable or village alderman.”
Three months later, Congress will send the 26th Amendment to the states for ratification. It officially lowers the minimum age for voting in federal and state elections to 18.
In Tashjian v. Republican Party of Connecticut, the U.S. Supreme Court looks at the constitutionality of a Connecticut law that requires voters in any political party primary to be registered members of that party. In 1984, the Connecticut Republican Party adopted a party rule that permits independent voters – registered voters not affiliated with any party – to vote in Republican primaries for federal and statewide offices. The party then challenged the Connecticut law in federal district court on the ground that it deprives the party of its right under the First and Fourteenth Amendments to enter into political association with individuals of its own choosing.
The Supreme Court finds that the law denies the party and its members of the right to freedom of association by limiting the number of registered voters whom the party may invite to participate in the “basic function” of selecting the party’s candidates. But the Court finds that the party rule does not violate the qualifications clause of the Constitution or the 17th Amendment. The clause and the amendment are not violated by the fact that the party rule establishes qualifications for voting in congressional elections that differ from the qualifications in elections for the state legislature.
In U.S. Term Limits v. Thornton, the U.S. Supreme Court looks at the constitutionality of an Arkansas constitutional amendment that limits the number of times a candidate can run for the same office – two terms for senators and three terms for representatives to Congress. In striking down the state-mandated term limits, the Supreme Court observes that each member of Congress is “an officer of the union, deriving his powers and qualifications from the Constitution, and these qualifications are neither created by, dependent upon, nor controllable by, the states.” The Court further notes that “with the adoption of the Seventeenth Amendment, state power over the election of Senators was eliminated, and Senators, like Representatives, were to be elected directly by the People.”
The Elections Clause of the Constitution, Article I, Section 4, along with the 17th Amendment, gives the states power to regulate the mechanics of congressional elections, unless Congress sets national rules. One congressional rule sets the date of the biennial election for the offices of U.S. senator and representative on a single November day.
Since 1978, Louisiana has held in October of a federal election year an “open primary” for congressional offices in which all candidates, regardless of party, appear on the same ballot. If a candidate for a given office receives a majority at the open primary, the candidate “is elected” and no further voting on the federal election day is held. In Foster v. Love, a challenge to the October voting date, the U.S. Supreme Court finds that Louisiana’s statute conflicts with federal law and that Congress clearly meant to have every state hold congressional elections at the same time.
The Court finds that the Louisiana system distorts the voting process because the results of an early federal election in one state can influence later voting in other states. Moreover, the two-day voting system may burden citizens forced to turn out on two different election days in presidential election years.
After announcing his retirement, Georgia Sen. Zell Miller, a conservative Democrat, introduces a resolution calling for the repeal of the 17th Amendment. He claims that the direct election of senators gives too much power to Washington’s special interests and contributes to the rise of big government.