[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Seventeenth Amendment - Popular Election of Senators]
[From the U.S. Government Printing Office, www.gpo.gov]


[[Page 1965]]

 
 
                      POPULAR ELECTION OF SENATORS

                               __________

                          SEVENTEENTH AMENDMENT


  Clause 1. The Senate of the United States shall be composed of two 
Senators from each State, elected by the people thereof, for six years; 
and each Senator shall have one vote. The electors in each State shall 
have the qualifications requisite for electors of the most numerous 
branch of the State legislatures.
  Clause 2. When vacancies happen in the representation of any State in 
the Senate, the executive authority of each State shall issue writs of 
election to fill such vacancies: Provided That the legislature of any 
State may empower the executive thereof to make temporary appointments 
until the people fill the vacancies by election as the legislature may 
direct.
  Clause 3. This amendment shall not be so construed as to affect the 
election or term of any Senator chosen before it becomes valid as part 
of the Constitution.

                      POPULAR ELECTION OF SENATORS

        The ratification of this Amendment was the outcome of increasing 
popular dissatisfaction with the operation of the originally established 
method of electing Senators. As the franchise became exercisable by 
greater numbers of people, the belief became widespread that Senators 
ought to be popularly elected in the same manner as Representatives. 
Acceptance of this idea was fostered by the mounting accumulation of 
evidence of the practical disadvantages and malpractices attendant upon 
legislative selection, such as deadlocks within legislatures resulting 
in vacancies remaining unfilled for substantial intervals, the 
influencing of legislative selection by corrupt political organizations 
and special interest groups through purchase of legislative seats, and 
the neglect of duties by legislators as a consequence of protracted 
electoral contests. Prior to ratification, however, many States had 
perfected arrangements

[[Page 1966]]
calculated to afford the voters more effective control over the 
selection of Senators. State laws were amended so as to enable voters 
participating in primary elections to designate their preference for one 
of several party candidates for a senatorial seat, and nominations 
unofficially effected thereby were transmitted to the legislature. 
Although their action rested upon no stronger foundation that common 
understanding, the legislatures generally elected the winning candidate 
of the majority, and, indeed, in two States, candidates for legislative 
seats were required to promise to support, without regard to party ties, 
the senatorial candidate polling the most votes. As a result of such 
developments, at least 29 States by 1912, one year before ratification, 
were nominating Senators on a popular basis, and, as a consequence, the 
constitutional discretion of the legislatures had been reduced to little 
more than that retained by presidential electors.\1\

        \1\1 G. Haynes, The Senate of the United States 79-117 (1938).
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        Very shortly after ratification it was established that if a 
person possessed the qualifications requisite for voting for a Senator, 
his right to vote for such an officer was not derived merely from the 
constitution and laws of the State in which they are chosen but had its 
foundation in the Constitution of the United States.\2\ Consistent with 
this view, federal courts declared that when local party authorities, 
acting pursuant to regulations prescribed by a party's state executive 
committee, refused to permit an African American, on account of his 
race, to vote in a primary to select candidates for the office of U.S. 
Senator, they deprived him of a right secured to him by the Constitution 
and laws, in violation of this Amendment.\3\ An Illinois statute, on the 
other hand, which required that a petition to form, and to nominate 
candidates for, a new political party be signed by at least 25,000 
voters from at least 50 counties was held not to impair any right under 
the Seventeenth Amendment, notwithstanding that 52 percent of the 
State's voters were residents of one county, 87 percent were residents 
of 49 counties, and only 13 percent resided in the 53 least populous 
counties.\4\

        \2\United States v. Aczel, 219 F. 917 (D. Ind. 1915) (citing Ex 
parte Yarbrough, 110 U.S. 651 (1884)).
        \3\Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied, 
327 U.S. 800 (1946).
        \4\MacDougall v. Green, 355 U.S. 281 (1948), overruled on equal 
protection grounds in Moore v. Ogilvie, 394 U.S. 814 (1969). See 
Forssenius v. Harman, 235 F. Supp. 66 (E.D.Va. 1964) aff'd on other 
grounds, 380 U.S. 529 (1965), where a three-judge District Court held 
that the certificate of residence requirement established by the 
Virginia legislature as an alternative to payment of a poll tax in 
federal elections was an additional qualification to voting in violation 
of the Seventeenth Amendment and Art. I, Sec. 2.