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each Senator shall have one Vote.]

  This provision has now been changed by the 17th amendment to the 
Constitution.

  \2\ Immediately <<NOTE: Sec. 33. Division of the Senate into 
classes.>> after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be vacated at the 
Expiration of the second Year, of the second Class at the Expiration of 
the fourth Year, and of the third Class at the Expiration of 
the <<NOTE: Sec. 34. Filling of vacancies in the Senate.>> sixth Year, 
so that one-third may be chosen every second Year; [and if Vacancies 
happen by Resignation,
or otherwise, during the Recess of the Legislature of any State, the 
Executive thereof may make temporary Appointments until the next Meeting 
of the Legislature, which shall then fill such Vacancies.]

  That part of the above paragraph in brackets was changed by the 17th 
amendment.

  \3\ No Person <<NOTE: Sec. 35. Qualifications of Senators.>> 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.


[[Page 16]]


  In 1794 the Senate decided that Albert Gallatin was disqualified, not 
having been a citizen nine years although he had served in the war of 
Independence and was a resident of the country when the Constitution was 
formed (I, 428); and in 1849 that James Shields was disqualified, not 
having been a citizen for the required time (I, 429). But in 1870 the 
Senate declined to examine as to H. R. Revels, a citizen under the 
recently adopted 14th amendment (I, 430). As to inhabitancy the Senate 
seated one who, being a citizen of the United States, had been an 
inhabitant of the State from which he was appointed for less than a year 
(I, 437). Also one who, while stationed in a State as an army officer 
had declared his intention of making his home in the State, was admitted 
by the Senate (I, 438). A Senator who at the time of his election was 
actually residing in the District of Columbia as an officeholder, but 
who voted in his old home and had no intent of making the District his 
domicile, was held to be qualified (I, 439).

  \4\ The Vice <<NOTE: Sec. 36. The Vice President and his 
vote.>> President of the United States shall be President of the Senate, 
but shall have no Vote, unless they be equally divided.

  The right of the Vice President to vote has been construed to extend 
to questions relating to the organization of the Senate (V, 5975), as 
the election of officers of the Senate (V, 5972-5974), or a decision on 
the title of a claimant to a seat (V, 5976, 5977). The Senate has 
declined to make a rule relating to the vote of the Vice President (V, 
5974).

<<NOTE: Sec. 37. Choice of President pro tempore and other officers of 
the Senate.>>   \5\ The Senate shall chuse their other Officers, and 
also a President pro tempore, in the Absence of the Vice President, or 
when he shall exercise the Office of President of the United States.

  In the 107th Congress the Senate elected two Presidents of the Senate 
pro tempore for different periods when the majority of the Senate 
shifted after inauguration of the Vice President (S. Res. 3, Jan. 3, 
2001, p. ----).

-  \6\ The Senate <<NOTE: Sec. 38. Senate tries impeachment and convicts 
by twothirds vote.>> shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside: And no Person shall be convicted

[[Page 17]]

without the Concurrence of two thirds of the Members present.

  For the exclusive power of the Senate to try impeachments under the 
United States Constitution, see Ritter v. United States, 84 Ct. Cls. 293 
(1936), cert. denied, 300 U.S. 668 (1937). See also Mississippi v. 
Johnson, 71 U.S. (4 Wall.) 475 (1867) (dictum). For the 
nonjusticiability of a claim that Senate Rule XI violates the 
impeachment trial clause by delegating to a committee of 12 Senators the 
responsibility to receive evidence, hear testimony, and report to the 
Senate thereon, see Nixon v. United States, 506 U.S. 224 (1993). For a 
discussion of Senate impeachment procedures, see Sec. Sec. 608-20, 
infra.

  \7\ Judgment in <<NOTE: Sec. 41. Judgment in cases of 
impeachment.>> Cases of Impeachment shall not extend further than to 
removal from Office, and disqualification to hold and enjoy any Office 
of honor, Trust or Profit under the United States: but the Party 
convicted shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law.

  There has been discussion as to whether or not the Constitution 
requires both removal and disqualification on conviction (III, 2397); 
but in the case of Pickering, the Senate decreed only removal (III, 
2341). In the case of Humphreys, judgment of both removal and 
disqualification was pronounced (III, 2397). In the Ritter case, it was 
first held that upon conviction of the respondent, judgment of removal 
required no vote, following automatically from conviction under article 
II, section 4 (Apr. 17, 1936, p. 5607). In the 99th Congress, having 
tried to conviction the first impeachment case against a Federal 
district judge since 1936, the Senate ordered his removal from office 
(Oct. 9, 1986, p. 29870). In the 101st Congress, two other Federal 
district judges were removed from office following their convictions in 
the Senate (Oct. 20, 1989, p. 25335; Nov. 3, 1989, p. 27101). For a 
further discussion of judgments in cases of impeachment, see Sec. 619, 
infra.

  Section 4. \1\ The Times, <<NOTE: Sec. 42. Times, places, and manner 
of elections of Representatives and Senators.>> 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

[[Page 18]]

any time by Law make or alter such Regulations, except as to the places 
of chusing Senators.

  The relative powers of the Congress and the States under this graph 
have been the subject of much discussion (I, 311, 313, 507, footnote); 
but Congress has in fact fixed by law the time of elections (I, 508; VI, 
66; 2 U.S.C. 7), and has controlled the manner to the extent of 
prescribing a ballot or voting machine (II, 961; VI, 150; 2 U.S.C. 9). 
When a State delegated to a municipality the power to regulate the 
manner of holding an election, a question arose (II, 975). A question 
has arisen as to whether or not a State, in the absence of action by 
Congress, might make the time of election of Congressmen contingent on 
the time of the State election (I, 522). This paragraph gives Congress 
the power to protect the right to vote in primaries where they are an 
integral part of the election process. United States v. Wurzbach, 280 
U.S. 396 (1930); United States v. Classic, 313 U.S. 299 (1941). Congress 
may legislate under this paragraph to protect the exercise of the 
franchise in congressional elections. Ex parte Siebolt, 100 U.S. 371 
(1880); Ex parte Yarbrough, 110 U.S. 651 (1884).
  The meaning of <<NOTE: Sec. 43. Functions of a State legislature in 
fixing time, etc., of elections.>> the word ``legislature'' in this 
clause of the Constitution has been the subject of discussion (II, 856), 
as to whether or not it means a constitutional convention as well as a 
legislature in the commonly accepted meaning of the word (I, 524). The 
House has sworn in Members chosen at an election the time, etc., of 
which was fixed by the schedule of a constitution adopted on that 
election day (I, 519, 520, 522). But the House held that where a 
legislature has been in existence a constitutional convention might not 
exercise the power (I, 363, 367). It has been argued generally that the 
legislature derives the power herein discussed from the Federal and not 
the State Constitution (II, 856, 947), and therefore that the State 
constitution might not in this respect control the State legislature 
(II, 1133). The House has sustained this view by its action (I, 525). 
But where the State constitution fixed a date for an election and the 
legislature had not acted, although it had the opportunity, the House 
held the election valid (II, 846).
  Decisions <<NOTE: Sec. 44. Decisions of the Court.>> of the Supreme 
Court of the United States: Ex parte Siebold, 100 U.S. 371 (1880); Ex 
parte Clark, 100 U.S. 399 (1880); Ex parte Yarbrough, 110 U.S. 651 
(1884); In re Coy, 127 U.S. 731 (1888); Ohio v. Hildebrant, 241 U.S. 565 
(1916); United States v. Mosley, 238 U.S. 383 (1915); United States  v. 
Gradwell, 243 U.S. 476 (1917); Newberry v. United States, 256 U.S. 232 
(1921); Smiley v. Holme, 285 U.S. 355 (1932); United States v. Classic, 
313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944); Roudebush 
v. Hartke, 405 U.S. 15 (1972); Storer v. Brown, 415 U.S. 724 (1974); 
Buckley v. Valeo, 424 U.S. 1 (1976); U.S. Term Limits, Inc., v. Thorton, 
514 U.S. 779 (1995); and Foster v. Love, 522 U.S. 67 (1997). In Public 
Law 91-

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285, Congress lowered the minimum age of voters in all Federal, state 
and local elections from 21 to 18 years. In Oregon v. Mitchell, 400 U.S. 
112 (1970), the Supreme Court upheld the power of Congress under article 
I, section 4 and under section 5 of the 14th amendment to the 
Constitution to fix the age of voters in Federal elections, but held 
that the tenth amendment to the Constitution reserved to the States the 
power to establish voter age qualifications in State and local 
elections. The 26th amendment to the Constitution extended the right of 
persons 18 years of age or older to vote in elections held under State 
authority.

  \2\ [The Congress <<NOTE: Sec. 45. Annual meeting of Congress.>> shall 
assemble at least once in every Year, and such Meeting shall be on the 
first Monday in December, unless they shall by Law appoint a different 
Day.]

  This provision of the Constitution has been superseded by the 20th 
amendment.
  In the later but not the earlier practice (I, 5), prior to the 20th 
amendment, the fact that Congress had met once within the year did not 
make uncertain the constitutional mandate to meet on the first Monday of 
December (I, 6, 9-11). Early Congresses, convened either by proclamation 
or law on a day earlier than the constitutional day, remained in 
continuous session to a time beyond that day (I, 6, 9-11). But in the 
later view an existing session ends with the day appointed by the 
Constitution for the regular annual session (II, 1160); see Sec. 84, 
infra. Congress has frequently appointed by law a day for the meeting 
(I, 4, 5, 10-12, footnote; see also Sec. 243, infra).

  Section 5. \1\ Each <<NOTE: Sec. 46. House the judge of elections, 
returns, and qualifications.>> House shall be the Judge of the 
Elections, Returns and Qualifications of its own Members, * * *.

  In judging the qualifications of its Members, the House may not add 
qualifications to those expressly stated in the United States 
Constitution. Powell v. McCormack, 395 U.S. 486 (1969). This phrase 
allows the House or Senate to deny the right to a seat without 
unlawfully depriving a State of its right to equal representation. Barry 
v. United States ex rel Cunningham, 279 U.S. 597 (1929). But a State may 
conduct a recount of votes without interfering with the authority of the 
House under this phrase. Roudebush v. Hartke, 405 U.S. 15 (1972). For 
discussion of the power of the House to judge elections, see Deschler's 
Precedents, vol. 2, ch. 8 (elections) and ch. 9 (election contests); for 
discussion of the power of the House to judge qualifications, see 
Deschler's Precedents, vol. 2, ch. 7.

[[Page 20]]

  The House has the same authority to determine the right of a Delegate 
to his seat that it has in the case of a Member (I, 423). The House may 
not delegate the duty of judging its elections to another tribunal (I, 
608), and the courts of a State have nothing to do with it (II, 959). 
The House has once examined the relations of this power to the power to 
expel (I, 469).
  As nearly all <<NOTE: Sec. 47. Power of judging as related to State 
laws as to returns.>> the laws governing the elections of 
Representatives in Congress are State laws, questions have often arisen 
as to the relation of this power of judging to those laws (I, 637). The 
House decided very early that the certificate of a State executive 
issued in strict accordance with State law does not prevent examination 
of the votes by the House and a reversal of the return (I, 637). The 
House has also held that it is not confined to the conclusions of 
returns made up in strict conformity to State law, but may examine the 
votes and correct the returns (I, 774); and the fact that a State law 
gives canvassers the right to reject votes for fraud and irregularities 
does not preclude the House from going behind the returns (II, 887). The 
highest court in one State (Colorado) has ruled that it lacked 
jurisdiction to pass upon a candidate's allegations of irregularities in 
a primary election and that the House had exclusive jurisdiction to 
decide such questions and to declare the rightful nominee (Sept. 23, 
1970, p. 33320).
  When the question <<NOTE: Sec. 48. Power of judging as related to 
State laws as to acts of the voter.>> concerns not the acts of returning 
officers, but the act of the voter in giving his vote, the House has 
found more difficulty in determining on the proper exercise of its 
constitutional power. While the House has always acted on the principle 
of giving expression to the intent of the voter (I, 575, 639, 641; II, 
1090), yet it has held that a mandatory State law, even though 
arbitrary, may cause the rejection of a ballot on which the intent of 
the voter is plain (II, 1009, 1056, 1077, 1078, 1091). See Deschler's 
Precedents, vol. 2, ch. 8, sec. 8.11, for discussion of distinction 
between directory state laws governing the conduct of election officials 
as to ballots, and mandatory laws regulating the conduct of voters.
  Where the State <<NOTE: Sec. 49. Power of House as related to 
constitutionality of State laws.>> courts have upheld a State election 
law as constitutional the House does not ordinarily question the law 
(II, 856, 1071). But where there has been no such decision the House, in 
determining its election cases, has passed on the validity of State laws 
under State constitutions (II, 1011, 1134), and has acted on its 
decision that they were unconstitutional (II, 1075, 1126), but it is not 
the policy of the House to pass upon the validity of State election laws 
alleged to be in conflict with the State constitution (VI, 151).

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  The courts of <<NOTE: Sec. 50. Effect of interpretation of State 
election laws by State courts.>> a State have nothing to do directly 
with judging the elections, qualifications, and returns of 
Representatives in Congress (II, 959), but where the highest State court 
has interpreted the State law the House has concluded that it should 
generally be governed by this interpretation (I, 645, 731; II, 1041, 
1048), but does not consider itself bound by such interpretations (VI, 
58). The House is not bound, however, by a decision on an analogous but 
not the identical question in issue (II, 909); and where the alleged 
fraud of election judges was in issue, the acquittal of those judges in 
the courts was held not to be an adjudication binding on the House (II, 
1019). For a recent illustration of a protracted election dispute 
lasting four months see House Report 99-58, culminating in House 
Resolution 146 of the 99th Congress (May 1, 1985, p. 9998).
  The statutes of <<NOTE: Sec. 51. Laws of Congress not binding on the 
House in its function of judging its elections.>> the United States 
provide specific methods for institution of a contest as to the title to 
a seat in the House (I, 678, 697-706) (2 U.S.C. 381); but the House 
regards this law as not of absolute binding force, but rather a 
wholesome rule not to be departed from except for cause (I, 597, 719, 
825, 833), and it sometimes by resolution modifies the procedure 
prescribed by the law (I, 449, 600).
  Decisions <<NOTE: Sec. 51a. Decisions of the Court.>> of the Supreme 
Court of the United States: In re Loney, 134 U.S. 317 (1890); Reed v. 
County Commissioners, 277 U.S. 376 (1928); Barry v. United States ex 
rel. Cunningham, 279 U.S. 597 (1929); Roudebush v. Hartke, 405 U.S. 15 
(1972).

  * * * and a <<NOTE: Sec. 52. The quorum.>> Majority of each [House] 
shall constitute a Quorum to do Business; but a smaller Number may 
adjourn from day to day, and may be authorized to compel the Attendance 
of absent Members, in such Manner, and under such Penalties as each 
House may provide.

  Out of conditions <<NOTE: Sec. 53. Interpretation of the Constitution 
as to number constituting a quorum.>> arising between 1861 and 1891 the 

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