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Election Laws

The laws governing Senate elections have evolved slowly over time. The Constitution simply states that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations" (Article I, section 4). For almost 80 years, the Senate left the supervision of senatorial elections entirely in the hands of the state legislatures. After frequent and flagrant abuses, however, Congress decided to exercise its constitutional prerogative to impose some order on the process.

1866 Act
In the years just before and during the Civil War, the Democratic and Republican Parties within state legislatures matured to the point that they could hold their members to party discipline, leaving less room for compromise. As a result, a party caucus was often able to prevent an election from being completed until the caucus members could agree on a candidate to support. One frequent stalling tactic was for the upper chamber of legislature to block a U.S. Senate election by refusing to send a quorum of its members to a joint assembly of the two houses. To prevent this abuse, Congress in 1866 passed an act governing election of senators that established rules for a joint assembly. By stipulating that the joint assembly took jurisdiction over an election only after one house had failed to elect, the Senate ended the right of the two houses to act separately when stalemated and instead encouraged them to complete the election through the joint assembly. Because the terms of state legislatures varied and there had been cases of a later legislature seeking to override a senatorial election carried out by its predecessor, the law stipulated specifically that the election be carried by "the legislature of each state which is chosen next preceding the expiration of the time for which any senator was elected to represent such state in Congress." The election was to begin on "the second Tuesday after the meeting and organization" of the legislature. The act then outlined the manner in which the legislature was to conduct the election. Provision was also made for filling vacancies by a similar election.

Reconstruction Acts (1867-1868)
At the close of the Civil War, the Union needed to develop a process for readmitting the former Confederate states. The initial phase of Reconstruction under presidents Abraham Lincoln and Andrew Johnson sought to return the seceding states to the Union as quickly as possible. During this period, from 1865 to 1867, states were required simply to ratify the Thirteenth Amendment abolishing slavery and to swear allegiance to the Union. It soon became apparent, however, that former Confederates were being elected to state and local office in governments that did little to protect the rights of the recently freed slaves. In fact, many states adopted "black codes" that forbade African American citizens to vote or hold office, and incidents of violence against both blacks and white unionists proliferated throughout the South. As a result, some states, which in 1866 had adopted new constitutions that repudiated secession but failed to provide adequate rights and safeguards for the freedmen, found that the House and Senate refused to admit the representatives and senators they sent to Washington.

Increasingly, Republicans in Congress began to assert themselves on Reconstruction issues. In December 1865, Congress established the Joint Committee of Thirteen on Reconstruction, and in the 1866 elections Radical Republicans gained sufficient strength in both houses to override presidential vetoes on such legislation as renewal of the Freedmen's Bureau. Then, in 1867 and 1868, over President Johnson's veto, Congress passed a series of Reconstruction acts, setting forth new, more stringent requirements to be met before states could be accepted back into the Union. These criteria included ratification of the Fourteenth Amendment, which ensured citizenship for African Americans. The amendment also disqualified from holding state or federal office those former Confederates who had held government posts before the war and thus had violated their oath to uphold the Constitution. States were again placed under military control and required to adopt new constitutions allowing black citizens to vote. Once a state had satisfactorily complied with these requirements and had also ratified the Fifteenth Amendment guaranteeing black suffrage, Congress would pass a law specifically returning the state to representation in the House and Senate. In 1866, Tennessee became the first state readmitted under this procedure, followed in 1868 by Alabama, Arkansas, Florida, Louisiana, North Carolina, and South Carolina. Georgia, Mississippi, Texas, and Virginia returned to the Union in 1870.


Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S.Doc. 103-33. Washington, GPO, 1995.

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