Academic journal article Harvard Law Review

Voter and Officeholder Qualifications

Academic journal article Harvard Law Review

Voter and Officeholder Qualifications

Article excerpt

"The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution." (1) James Madison's words, memorialized in the Federalist Papers, reflect a foundational ideal desired by many of the Framers but ultimately obstructed by the necessities of political compromise at the Constitutional Convention. For instead of establishing set criteria for voter eligibility, the Framers had to settle for state definition of voter qualifications. (2) This constitutional compromise presaged a two-century struggle over the franchise between state regulation and incremental federal limitations on state power.

Establishing the regulations for voting's logical corollary--holding office--proved to be more politically attainable by the Framers. The qualifications for holding federal office are fixed by the Constitution, untouchable by federal or state legislation, and alterable only by constitutional amendment. (3) While the Constitution sets out the explicit criteria of age, residency, and citizenship for members of the House of Representatives, senators, and Presidents, the qualifications for voting began in the hands of the states, but have slowly evolved to constrain states from limiting the franchise in elections for federal office in several areas. (4) It has become an axiom that every political issue eventually becomes a legal issue, (5) and voting is certainly no exception. At the heart of the debate, however, is a threshold question of which entity--the federal or state government--is better situated and has a more democratically legitimate claim to determine voter qualifications.

The questions of who can vote and who can serve in federal office are familiar to legal scholarship. But little ink has been spilled over the theoretical and historical links between voter and officeholder qualifications, perhaps because the original Constitution created a structural dichotomy between the two. This Note presents a justification, based on history and democratic legitimacy, for the constitutionalization and federalization of voter qualifications to better align them with officeholder qualifications. Part I examines the constitutional origins of voter and officeholder qualifications and the Framers' reasons for varying structurally the means for modification of the two. Part II describes the jurisprudential trends of voter and officeholder qualifications and their convergence over time, most significantly after the Reconstruction Amendments (6) and the passage of the Voting Rights Act of 1965. (7) Part III argues that the structural convergence of voter and officeholder qualifications is consistent with democratic principles and represents--except in some notable pockets of disparity in voting rights--the realization of the Framers' vision of uniform qualifications for the elected as well as the electorate.

I. UNDERPINNINGS OF VOTER AND OFFICEHOLDER QUALIFICATIONS

A. Maintaining Structural Steadfastness

In the Framers' view, democratic principles mandated that restrictions on whom the people could choose to represent them in the national legislature should be kept to a minimum. James Madison echoed this egalitarian sentiment in the Federalist Papers: "No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people." (8) The Supreme Court has also declared that a "fundamental principle of our representative democracy" is "that the people should choose whom they please to govern them." (9) But if that sentiment was important, why set any qualifications at all? Why not just allow the people to choose? As noble as Madison's and the Supreme Court's statements may be, they do not accurately describe the U.S. constitutional system. If the people want to choose a wise and charismatic twenty-eight-year-old to be a senator, they cannot do so. …

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