The Federalist Blog

Voting rights groups in Georgia were successful in stopping State election officials from using Social Security numbers and driver’s license data to check voters’ immigration status. Advocacy groups had told a federal three-judge panel that using the data to verify whether voters are citizens amounts to a “systematic purging” of voting rolls that must be approved by the Justice Department.

Why does the State of Georgia need approval by the Justice Department? The answer, according to the Department of Justice, is because Georgia is one of several states with a history of discriminatory voting practices. Well guess what; all States North or South can be said to have had a history of “discriminatory voting practices.” Why are Georgia and several other southern States being singled out – and more importantly – under what authority delegated to Congress to do so?

In a June 24, 1870 speech, Fourteenth Amendment framer, John Bingham, said, “I deny that you can rightfully impose upon Georgia any conditions whatever that you cannot impose upon Ohio and New York. The States are equal.” Later he added, “When Georgia’s representation is officially restored by the very letter of your reconstruction acts, all colorable excuses for imposing any civil or political conditions upon her shall no longer exist.”

Speaking of another former rebel State, Virginia, Bingham scolds fellow Radical Republicans over an attempt to impose unequal conditions upon that State on January 14, 1870:

You, the party of liberty and justice, attempt to fasten fetters upon one State which you dare not impose and have no authority to impose upon other States; you attempt to provide that a State admitted to representation in the Congress of the United States shall be governed not by those elected by its citizens under their own laws, but by such officials as may be appointed by act of Congress! It is your right and your duty to govern Virginia until she is reorganized under a republican form of government satisfactory to the Congress of the United States, with just such officials as you deem right and proper; but your right to do so passes away the moment you restore the State to its representation in the Congress of the United States and approve its reorganization under your acts of reconstruction.

Senator Jacob M. Howard (member of the Committee of Reconstruction) like most members of the Senate had no illusions over whether the exclusive authority to regulate “the qualifications of electors, both in the choice of State officers and in the election of Representatives to Congress and electors of President and Vice President” belonged with the States. The “manner” spoken of under the U.S. Constitution means determining the outcome of an election by either voice or ballot; having absolutely nothing to do with qualifications of voters to vote. Mr. Howard bluntly illustrates where the exclusive right to determine voter qualifications resides:

As far as a State Legislature or a State convention should trench upon the rule expressed in the Fifteenth Amendment relating to race, color, and previous condition of servitude, and to those subjects only, its legislation would be void, and Congress could interfere under the second clause of the amendment to correct that legislation. To that, I agree; but suppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars’ worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars’ worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?

No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil. . . .

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them; and that will be the case until the Fifteenth Amendment shall have been adopted, that amendment relating only to color, race, and slavery, not to property, not to educational qualifications, or anything except these three specific subjects.

Speaking of the Fifteenth Amendment before the House in May of 1870, Rep. Bingham said, “the general power of the States to ‘regulate,’ in the language of the Constitution, the election of Representatives to Congress is conceded by all who have ever read that instrument.” In further driving this message home, he quotes a year later Alexander Hamilton in Federalist No. 59:

Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?

If the people of the States had ever concluded their exclusive power over voter regulations (State or Federal) was best entrusted with Congress then there would have been lengthy public debates and a constitutional amendment to document this decision of surrender. Because there is no such record of such debates or any documented amendment to this affect, leaves neither the courts nor Congress any pretense to pretend that they have – unless of course this nation has long ceased to be a democracy.