POPULAR ELECTION OF SENATORS

SEVENTEENTH AMENDMENT

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.

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.

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 the Seventeenth 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 other duties by legislators as a consequence of protracted electoral contests.

Prior to ratification, however, many states had perfected arrangements calculated to afford the voters more effective control over the

selection of Senators. State laws were amended so as to enable vot2271
ers 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 than

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

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 the Senator was not derived merely from the

constitution and laws of the state that chose the Senator, 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, by contrast, that 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

1 1 G. HAYNES, THE SENATE OF THE UNITED STATES 79–117 (1938).

2 United States v. Aczel, 219 F. 917, 929–30 (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, § 2.

2272 AMENDMENT 17—POPULAR ELECTION OF SENATORS