What is meant by the provision about electors in the Seventeenth Amendment? I was reading about the Seventeenth Amendment and had a question about one of the sentences in its opening paragraph: 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. What does this phrase mean? Is this referring to Electoral College electors? To the voters in the state casting votes? To the officials up for election? I've done some searching online about this and haven't really found anything on the subject.
It refers to the voters in the state who cast votes. "Elector" isn't a special term invented for the Electoral College, it just means "person who votes in the election." For President, the real election is technically when the Electoral College votes, so those are the "electors." For Senate, the real election is when the people of the state vote, and so every qualified voter in the state is an elector. The provision means that a state has to set the same standards to vote for Senate as to vote for its own legislature; this has always been true for the House, and limits the extent to which a state can undermine the concept of popular election of Congress.
In the United States, the answer depends on who is unlawfully in power. In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker. But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified. A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels.
Yes the Senate could adopt a secret ballot rule, but other constitutional provisions combined with high partisanship make it practically impossible that the final results will be done through secret ballot. As other answers have mentioned, Article 1, Section 3, provides for the Senate to have sole power of trying impeachments. Similarly by Article 1, Section 5, each House may adopt its own rules. That means that yes the Senate can create its own rules that say the conviction vote will be done by secret ballot. However, adopting these rules only achieves a pyrrhic secret ballot. The very same section that provides for each house to make its own rules (Article 1, Section 5) also states: ...and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal. This means that if any vote is taken including this secret ballot vote, after doing so any member can ask for the Yeas and Nays of all members to be put into the Journal. The journal is the official record of each House. Thus while the vote was first taken in secret at least any member of the Senate will have access to the subsequent recorded vote, provided at least 1/5 of the Senate wishes to have a recorded vote. While not all is lost, the Senate could declare that this record itself is to remain secret, all 100 Senators and most likely many of their staff members will know how each Senator voted. Additionally, the Speech and Debate Clause states that: for any Speech or Debate in either House, they shall not be questioned in any other Place. Thus if a Senator were to publicly read the vote results into the record of a public committee hearing or during a filibuster or for really any other procedure (as rules of germane debate are very very lax in the Senate, but that is an issue for another question) that information could easily become public record. So while yes the rules can be changed to use secret ballot, a fifth (20 Senators currently) could ask for the Yeas and Nays to be entered on the Journal and this defeats the purpose of the secret ballot. So the only reasonable way to keep a secret ballot as the final dispositive record of a vote is to convince more than 4/5ths of the Senators to not ask for a recorded vote. In this sense it is certainly allowed and possible for the Senate to vote by secret ballot.
There seems to be no current applicable prohibition state law in Iowa in Iowa Code 39A, the Election Misconduct and Penalties Act. It is also not at all clear that precinct caucuses count as "elections" as applicable to the sections with criminal prohibitions (the precinct caucus does not appear to constitute a "primary election" under Iowa law).
The operative clause is constrained to interpretations that are consistent with the prefatory clause. "But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." DC v Heller 554 U.S. 570 (2008) The majority in Heller, after interpreting the operative clause "return[ed] to the prefatory clause to ensure that [their] reading of the operative clause is consistent with the announced purpose." In their case, since their interpretation of the operative clause was consistent with the announced purpose in the prefatory clause, the prefatory clause may seem to have no effect. However, they make the point that other interpretations of the operative clause can be ruled out by cross-checking against the announced purpose from the prefatory clause: "petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right." The court writes that if the petitioners had their way, only state-organized militias would be the beneficiary of the 2nd Amendment protections. However, the majority does not read the prefatory clause this narrowly. "[If] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny." The majority reads the prefatory clause to refer to a "citizens' militia": "the Militia comprised all males physically capable of acting in concert for the common defense".
This document from the Michigan Sec'y of State says that &quot;A US citizen who has never resided in the US and has a parent, legal guardian or spouse that was last domiciled in Michigan is eligible to vote in Michigan as long as he or she has not registered or voted in another State&quot;. You then use the Federal Post Card Application or the Federal Write-In Absentee Ballot, which you can get here.
One can argue both ways. On one side, yes, zero representation in the Senate for all states is equal suffrage in the Senate. On the other side, no, depriving all states of all representation in the Senate deprives them of their suffrage in the Senate (without needing to consider the question of whether the suffrage is equal). Since this question has never been considered by a court, we can't do much more than speculate how one might rule. There has never been an amendment proposed to modify the composition of the Senate -- at least not one that was seriously considered. The spirit of the law works in favor of the second interpretation. Furthermore, a strict application of abstract logical reasoning was probably not the intention of the framers. A strategy that might seem more likely to succeed would be to introduce amendments reducing the Senate's power in the legislative process, similar to the evolution of the House of Lords in the UK. If the goal were to sideline one state, this might work, but if the goal is to address the complaint that the Senate is undemocratic because people in smaller states have proportionally more influence there, there's no way the amendment would pass 3/4 of the states' legislatures. The number of states with one or two representatives is 13, by itself a sufficient number to block the adoption of an amendment.
Separate law? Is a separate law needed to prohibit people to whom Section 3 applies from taking office, or to remove such people from office? Griffin’s Case There is some reason to think so. In 1869 there was Griffin’s Case, 11 F. Cas. 7, 2 Am. Law T. Rep. U. S. Cts. 93; 8 Am. Law Reg. N. S. 358. This was tried by Chief Justice Chase, in his role as a Circuit Justice, not as a Supreme Court case. One Caesar Griffin was accused of shooting with intent to kill, tried before a Virginia state court, convicted, and sentenced to two years in prison. He then filed a writ of Habes Corpus claiming that his imprisonment was unlawful, because the jusge before whom he was tried, Hugh W. Sheffey, (in the words of Justice Chase): in December, 1849, [Sheffey] as a member of the Virginia house of delegates, took an oath to support the constitution of the United States, and also that he was a member of the legislature of Virginia in 1862. during the late Rebellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States; and it was claimed in behalf of the petitioner, that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any state ... Several other people tried and convicted before Judge Sheffey in the circuit court of Rockbridge county, including some convicted of murder, filed similar Habes Corpus petitions, claiming that Sheffey was prohibited by Section 3 from holding office, and that therefore their convictions were invalid. Judge Sheffey had been appointed to the office of Judge after the end of the US Civil War by the reorganized government of Virginia, the one recognized as valid by the Federal Government. He was appointed before the ratification of the 14th Amendment. There was no dispute that he fit the letter of the group of prohibited persons in Section 3. Justice Chase wrote: The general question to be determined on the appeal from this order is whether or not the sentence of the circuit court of Rock-bridge county must be regarded as a nullity because of the disability to hold any office under the state of Virginia, imposed by the fourteenth amendment, on the person, who, in fact, presided as judge in that court. Justice Chase rejected the suggestion that all official actions by Sheffey and anyone in a similar position were automatically void and of no authority because of sectio0n 3. He wrote that: The proposition maintained in behalf of the petitioner, is, that this prohibition, instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts, performed by them, since that day, null and void. After pointing out that many of the offials of the reconstructed governments of the sothern states were withign the terms of the prohibition of section 3, Chae went on to write: If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale — in short no official act — is of the least validity. It is impossible to méasure the evils which such a construction would add to the calamities which have already fallen upon the people of these states. As a further reason not to construe section 3 as instantly and automatically removing all such officials, Chase wrote: Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution. ... Is there, then, any other reasonable construction? ... The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress. ... [I]t seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. Chase also note that, 2 months after the conviction of Griffin: in February, 1869, congress adopted a joint resolution entitled “a resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided that persons, “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe the test oath prescribed by the act of July 2, 1862 [12 Stat. 502], except those relieved from disability, “be removed therefrom;” and that this indicates that such people were regarded by Congress as having remained in office and not beign automatically removed. Griffin's Case seems to establish that some proceeding is needed to establish when a person falls under the exclusion rule of Section 3 of the 14th. In 1869 this was done by military order. In 1870 Congress passed a statute providing for criminal proceedings in such cases. This was repealed at the end of Reconstruction. Currently 18 U.S. Code § 2383 makes &quot;rebellion or insurrection against the authority of the United States or the laws thereof,&quot; a crime, and provides that anyone convicted of it &quot;shall be incapable of holding any office under the United States.&quot; This is not quite the same as the section 3 disqualification. One the one hand, it does not depend on a prior oath to support the constitution, and on the other it does not appear to ban holding a state or local office. But it shows how a similar law could be drafted by Congress. Legislative declaration Can a Congressional resolution, or a Federal statute declare that specific people have so engaged? This is probably prohibited as a Bill of Attainder, that is, a legislative declaration, without trial, that particular persons are guilty of particular crimes. Other Proceedings What proceedings would be needed to establish that a person had &quot;engaged in insurrection or rebellion&quot;? If a person subject to the section 3 disqualification was elected to either house of Congress, that house could refuse to seat such person, or expel him or her, as the Constitution permits. Most state legislatures have similar powers over the seating and expulsion of their own members. If a person is convicted under 18 USC § 2383 or any similar law, that person would clearly be excluded. Congress could pass a law establishing a special tribunal for determining when a person was subject to Section 3 of the 14th. But it has not done so. See also See also: this leglal blog post This article in Constitution Daily 14th Amendment's Section 3 Gets New Look as Democrats Weigh Measures Against Trump from the National Law Journal