Page:Harvard Law Review Volume 2.djvu/392

 374 ^^^ YARD LA W RE VIE W.

question whether it has been fair and free ; that is, do the returns give the true ultimate result, although certain precincts, or voting places, are necessarily thrown out of the count ? * The question always is, has the great body of electors had a fair opportunity to express their choice ? This same criterion applies to fraud as well as to intimidation and violence.

One further matter presents itself, — one that may assume some importance in the future. It has been said that a State may con- fer the right of suffrage upon whom it pleases, provided that no discrimination is made on account of race, color, or previous con- dition of servitude. " But when the right to vote at any election for the choice of electors for President and Vice-President, the exec- utive and judicial officers of a State, or the members of the legis- lature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in re- bellion or other crimes, the basis of representation shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens, twenty-one years of age, in each State." ^ How far can a State under this amendment impose qualifications upon voters without cutting down its rep- resentation ? Suppose, for instance, that some of the Southern States should require that voters be able to read and write, — a requirement which would disfranchise a large proportion of negroes and many whites.^ At first blush it seems that the representation must necessarily be reduced, since the words of the amendment, " denied or in any way abridged," appear very comprehensive. But it has been pointed out * that qualifications are made in many States which prevent a large number of persons from voting, and yet the representation is not consequently diminished. In New York at least three per cent, of the male population above twenty-three years of age is prevented from voting by the laws of residence and regis- tration. In Massachusetts the educational qualification reduces the voting population one-sixteenth. It is clear that the universal understanding in this country does not apply the amendment to

•Const. XlVth Am., sec. 2; Rev. St., § 22.
 * McCrary, Elections (3d ed.), § 529.

tur(*s of Alabama and South Carolina, providing for an educational test, but, it must be admitted, with little hope of success. See 47 Nat. 511.
 * Amendments to the State constitutions have recently been proposed in the legisla.

« 47 Nat 468.