A distinction is to be made between the right to vote for a Representative to Congress and the conditions upon which that right is granted. In the preceding section it has been shown that the right to vote is conditioned upon and determined by state law. But the right itself, as thus determined, is a federal right. That is to say, the right springs from the provision of the federal Constitution that Representatives shall be elected by those who have the right in each State to vote for the members of the most numerous branch of the state legislature. The Constitution thus gives the right but accepts, as its own, the qualifications which the States severally see fit to establish with reference to the election of the most numerous branch of their several state legislatures. This is the doctrine laid down by the Supreme Court in Ex parte Yarbrough14 in which they say: "But it is not correct to say that the right to vote for a member of Congress does not depend upon the Constitution of the United States. The office, if it be properly called an office, is created by that Constitution and by that alone. It also declares how it shall be filled, namely, by election. Its language is: '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 the electors of the most numerous branch of the state legislature.' (Article I, Section 2.) The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election of members of Congress. Nor can they prescribe the qualifications for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for members of Congress in that State. It adopts the qualification thus furnished as the qualification of its own electors for members of Congress. It is not true, therefore, that members of Congress owe their right to vote to the state law in any sense which makes the exercise of the right depend exclusively on the law of the State."

11 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274.

15 The opinion continues: "Counsel for petitioners, seizing upon the expres-sion found in the opinion of the court in the case of Minor v. Happersett (21 Wall. l62: 22 L. ed. 627) that "the Constitution of the United States does not confer the right of suffrage upon any one," without reference to the connection in which it is used, insists that the voters in this sense do not owe their right to vote in any sense to that instrument. But the court was combatting the argument that this right was conferred on all citizens, and therefore upon women as well as men. In opposition to that idea, it was said the Constitution adopt- as the qualification for voters of members of Congress that which prevails in the State where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of the State for the description of the class. But the court did not intend to say that when the class or the person is thus ascertained, his right to vote for a member of Congress was not fundamentally based upon the Constitution, which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors. The Fifteenth Amendment of the Constitution, by its limitation on the power of the States in the exercise of their right to prescribe the qualifications of voters in their own elections and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the National Government, and was not intended to be left within the exclusive control of the States. It is in the following language: Sec. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State, en account of race, color, or previous condition of servitude. Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.

In Wiley v. Sinkler,10 an action brought in one of the federal circuit courts against the board of managers of a general state election to recover damages in the sum of twenty-five thousand dollars for wrongfully rejecting the plaintiff's vote for a member of the House of Representatives of the United States. The defendants demurred on the grounds that the court had no jurisdiction because it did not affirmatively appear on the face of the complaint that a federal question was involved, and because the verdict for an amount sufficient to give the court jurisdiction would be excessive. Upon error to the federal Supreme Court, that tribunal held that a federal right was directly involved for "the right to vote for members of the Congress of the United States is not derived merely from the Constitution and laws of the State in which they are chosen, but has its foundation in the Constitution of the United States." 17 The amount of damages claimed, the court held, to be "peculiarly appropriate for the determination of a jury," and that no opinion of the court would "justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the circuit court"18

"While it is quite true, as was said by this court in United States v. Reese (92 U. S. 214; 23 L. ed. 563) that this article gives no affirmative right to the colored men to vote, and is designed primarily to prevent discrimination against him whenever the right to vote may be granted to others, it is easy to see that under some circumstances it may operate as the immediate source of a right td vote. In all cases where the former slave-holding States had not removed from their Constitutions the words 'white men' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, being paramount to the state law, and a part of the state law, it annulled the discriminating word ' white,' and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any further constitutional provision of a State which should give the right of voting exclusively to white people, whether they be men or women. Neal v. Delaware, 103 U. S. 370; 26 L. ed. 567. In such cases this Fifteenth Article of Amendment does, proprio vigore, substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right."

16179 U. S. 58; 21 Sup. Ct. Rep. 17; 45 L. ed. 84.