The excluded elector

Territorial voting rights

Michael John Neill on RootDig.com passes along a great question from his reader Liz, who posted on the Genealogy Tip of the Day Facebook page:

Could an 1864 Nebraska resident vote in federal elections?

Nebraska was a territory at the time; it didn’t achieve statehood until 1867.1 So would a territorial resident have been able to vote in the federal elections of 1864?

Easy answer.

Nope.

There weren’t any federal elected officials a territorial citizen then could vote for.

Think about it.

In 1864, only three types of federal officials would have been elected by any individual voter out there anywhere in the United States.

First, all of the members of the House of Representatives would have been up for election. But no territory had a representative in the House. That’s because the United States Constitution provided then and provides now that:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.2

No State, no Congressman.

Second, one-third of the members of the United States Senate would have been up for election. But, like the situation with the House, no territory could elect a Senator because of constitutional limits. The 1787 Constitution provided that:

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote. …

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.3

That section has since been amended to provide that “The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof…”4 Still, then as now, no State, no Senator.

And the third type of federal official elected in 1864 was not, as some might think, the President and Vice President of the United States. Because then, as now, the Constitution didn’t provide for direct popular election of those officials. Instead, it provided and provides for election by electors, members of the Electoral College:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President …5

There again… no State, no electors.

So the answer is simply no. A resident of a territory couldn’t vote in federal elections.6


 
SOURCES

  1. “An Act for the Admission of the State of Nebraska into the Union,” 14 Stat. 391 (9 Feb 1867); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/index.html : accessed 8 Feb 2013).
  2. United States Constitution, Article I, § 2.
  3. Ibid., Article I, § 3.
  4. Ibid., Amendment XVII (emphasis added.
  5. Ibid., Article III, § 1. See also Amendment XII.
  6. And, by the way, they still can’t. As recently as 2005, the courts have repeatedly held that the Constitution limits the vote to citizens who live in the states, not in territories. See Igartua-de la Rosa v. United States, 417 F.3d 145 (1st Cir. 2005), cert. denied, 547 U.S. 1035 (2006) (challenge by citizen and resident of Puerto Rico).
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13 Responses to The excluded elector

  1. Adrian Bruce says:

    How interesting… So – as a citizen of the UK and knowing the slogan about “No taxation without representation” that someone used sometime…

    Would people who lived in territories be taxed?

    • Judy G. Russell says:

      Actually, Adrian, residents of Puerto Rico don’t pay federal income tax on income received entirely in Puerto Rico from Puerto Rican sources. They do pay the Social Security tax (so they get Social Security benefits on retirement) and on income earned either from the federal government or from sources outside of Puerto Rico. And there’s a Puerto Rico income tax separate and apart from any federal tax.

      • Adrian Bruce says:

        Thanks Judy – that makes sense in terms of taxation and representation. Living over here, I keep forgetting about places like Puerto Rico and their (varied) relationships with the USA.

        • Judy G. Russell says:

          We don’t have too many of those types of locations left, Adrian, but some do remain. The Northern Mariana Islands and Guam are other examples. And, of course, it took a constitutional amendment to get citizens of the District of Columbia the right to electors in the presidential elections.

  2. Judy. Not exactly correct. The 23rd Amendment to the US Constitution gave the District of Columbia at least 3 electoral college votes (which it sill has.) The District is not a state, and has no US Senators and only a non-voting member of Congress.

    • Judy G. Russell says:

      But the District is not a territory, either, Craig, and as noted in the reply to Adrian’s comment, it took an amendment to the Constitution to gain those electors for the District of Columbia.

      • Indeed it isn’t. But is not a state. Your article said There again… no State, no electors

        Just isn’t so. But who wants to quibble? I don’t. Real political afficianados will recall the alarm set off in Presidential election years when all of the U.S. Territories (not states) elect delegates to the Democrat and Republican conventions, and the 2nd tier candidates express alarm that all these delegates are being rounded up in “surprise” party delegate selection processes. (Anyone remember Mitt Romney in Puerto Rico and Guam in 2012?)

        • Judy G. Russell says:

          You’re right: with an amendment to the Constitution, ratified in 1961, the District of Columbia was given electors.

  3. Well. I have failed HTML. I hope the readers can discern where I wanted to end the italics. My apologies.

  4. Marla Larson says:

    I’d never realized this and I live in a state that was a territory for close to 50 years before statehood was granted. I did a quick check of my ancestors and discovered that my 2nd great grandfather who died at age 44 was never able to vote in a federal election.

    • Judy G. Russell says:

      That’s a neat fact to know, Marla — and my great grandfather had, then lost, then gained the vote. He was 21 by 1900, in Texas, but was in the Indian Territory (later Oklahoma) in 1904. Oklahoma was a state by the 1908 election, so he could have voted then, but he died before the 1912 election.

  5. Jeff says:

    I thought most of this something that was taught in (high school) civics/American government class?

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