Open main menu

Page:Harvard Law Review Volume 2.djvu/384

This page needs to be proofread.


to contribute directly to the accuracy and fairness of the re- sult.'

What remedies has Congress afforded for infringements of the right to vote ? In the first place, the President has been given power to call out the militia, whenever he thinks necessary, to suppress any combination or conspiracy or violence which de- prives any person or class of persons of the " rights, privileges, and immunities," or of the " equal protection of the laws, guaran* teed by the Constitution, if the State is unable or refuses to give adequate protection.^ This act is evidently constructed with special reference to the XlVth Amendment, which prohibits the States from denying to any one the equal protection of the laws. How does it affect the right to vote ? We have seen that suf- frage may be conferred by the States upon whomsoever they will, provided that they do not discriminate on account of race, color, or previous condition. The effect of the XlVth Amendment is to secure to the body of voters the equal protection of the laws by which they may enjoy the right bestowed upon them. Although the act in question provides an extreme remedy for all State action contrary to the XlVth Amendment, it was probably designed with special reference to the right to vote.

The statute declares that a failure or refusal by the State to secure the equal protection of the laws amounts to a positive denial. If that theory is correct, the act is constitutional ; but, if it is not, the act attempts to cover something more than violations by a State of the XlVth Amendment, and it seems that the discrimination taken in the Civil Rights Cases applies, viz., that since the prohibition in the XlVth Amendment rests only upon

  • Ex parte Varbrough, no U. S. 651 ; McCrary on •• Our Election Laws," 128 N. A.

Rev. 449 (1879). Further legislation in control of elections has been mooted from time to time. See the debate on the Edmonds Resolutions in 1879, 8 Cong. Rec. 839-848, 885-893, 954-962, 997-1030.

In this connection may be noticed the bill introduced by Senator Sherman, Jan. 8, 1889, to regulate " the times, places, and manner of holding elections for representatiTes in Congress." It provides for a <* Board of State Canvassers '* in each State, and an Electoral Board " for each congressional district These federal officers are to register and count votes, declare results, and correct irregukrities in elections for representatives to Congress. The bill also provides that these boards may conduct elections fur presi- dential electors in the same way at the national expense, if the State desires. The con- sent of the State must be given, because the choice of presidential electors is strictly a State affair. The bill is probably constitutional, and is an example of how far Congress may go in regulating the manner of elections.

« Act Apr. 20, 1871, 17 Stat, at Large, c. 22, § 3; Rev. St., § 5299.