The Volokh Conspiracy
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[This post was co-authored with Professor Seth Barrett Tillman]
Last week, we posed three questions concerning the characterization of presidential electors. Are they "subordinate state officers"? Do they perform a "federal function"? Do they hold a "Public Trust under the United States"? In this post we will answer each of these three questions.
First, electors cannot be "state officers," of any kind. These positions were created by the Constitution. In light of U.S. Term Limits v. Thornton (1995), the power to regulate electors "is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States . . . because that Amendment could only 'reserve' that which existed before." The position of federal elector for President and Vice President was created by the Constitution of 1788.
We do not take a position on the question presented in Thornton: whether states have the power to enact ballot access laws that, as a practical matter, impose additional substantive qualifications on members of Congress. Rather, our analysis turns solely on the issue of whether the states have the authority to constrain the discretion of federal presidential electors when casting their ballot for president and vice president. We think this issue is akin to whether states have the authority to constrain the discretion of Senators, for example. Prior to the Seventeenth Amendment, state legislatures chose these federal officials; no one would have contended that the states could control the discretion of Senators as "subordinate" state officials.
Second, Ray v. Blair (1952) held that electors perform a "federal function" established by the Constitution. Nevertheless, Ray also held that electors are not "federal officers or agents." You may ask, doesn't the phrase "federal officers and agents" include everyone in the federal government? Not necessarily.
[T]he term [office] embraces the ideas of tenure, duration, emolument, and duties, and that the latter [that is, the duties] were continuing and permanent, not occasional or temporary. In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent.
Electors cannot hold a federal "office" in light of Germaine. Their temporary positions lack duration. They are established for a very brief time. As soon as they vote for President and Vice President, their "federal function" has concluded, and the position terminates. Such an ephemeral position cannot be considered an "office" or an "officer," under the rule in Germaine. Furthermore, Germaine explains an office has "duties," plural. (In contrast, the term "emolument," which is used in the same sentence as duties, is singular.) Electors do not have duties, plural; rather, they have a single duty: voting for President and Vice President. Finally, the federal government has never given electors an "emolument" for performing their "federal function." For these reasons, characterizing electors as "officers" is inconsistent with long-standing precedent.
What is a federal "agent," the other term used in Ray? That phrase was also used in Fitzgerald v. Green (1890). Germaine analogized an "agent" with an "employee working for the federal government and paid by it." We are not entirely sure that Germaine (1878) and Fitzgerald (1890)–decided only twelve years apart–used the word "agent" in the same fashion. But we think that analogy works, and is also consistent with the Supreme Court's decision in Buckley v. Valeo (1976). Buckley also cited Germaine to highlight the distinction between "officers of the United States" and "employees of the United States." The latter "are lesser functionaries subordinate to officers of the United States," whereas the former—that is, the FEC commission members discussed in Buckley—are "appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority." And the federal government has never "paid" electors.
The phrases "federal officer" and "federal agents" sweep in most positions within the federal government, but these phrases do not include all positions within the federal government. Many commentators have understood that Ray's "federal officers and agents"-language extends to all federal positions. Therefore, they concluded that electors do not fit anywhere in the universe of federal positions, and it would follow that electors must be state officials. For example, in Buckley v. Valeo, the D.C. Circuit read Fitzgerald v. Green (1890) in this fashion. The court stated in an Appendix, "a Presidential elector is a state officer, not a federal one."
We think these commentators have misunderstood Ray's "federal officers and agents"-language. First, Thornton rejects the notion that electors are state officials. (The D.C. Circuit's decision in Buckley predated, and is inconsistent with, Thornton.) Second, there are other federal positions that are not considered "federal officers or agents."
We think Ray's "federal office or agent"-language is best read to track the Electoral Incompatibility Clause. That clause provides, "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." The phrase "Office of Trust or Profit under the United States," in our view, covers all appointed positions in the legislative, executive, and judicial branches. This "office"-language does not prohibit Representatives and Senators from serving as electors; rather, the text of the provision expressly excludes Representatives and Senators from serving as electors. Simply put, electors "are not federal officers or agents" because the Elector Incompatibility Clause already prohibits "federal officers or agents" from serving as electors. The phrase "Office … under the United States"-language prevents "federal officers and agents" from taking the position of elector. But that conclusion does not resolve the status of what precisely electors are.
Third, we think–and the faithless electors agree–that an elector holds a "public Trust under the United States." This language is used in Article VI's Religious Test Clause. The phrase "public trust under the United States" reaches federal positions that are not subject to supervision in the normal course of their duties. We developed this position in our prior post. If we are correct that electors hold "public trusts under the United States," then the State of Washington, which fined a faithless elector, has a Bank of the United States problem. McCulloch v. Maryland held that states cannot discipline persons holding federal positions for performing federal functions. "The power to tax involves the power to destroy," Chief Justice John Marshall wrote. Therefore, the state lacks the "power to control the constitutional measures" of the federal government, which the Constitution "declared to be supreme." We can draw an analogy between McCulloch and the faithless electors cases. In the former decision, it was explained that a state cannot discipline a federal functionary for performing a federal function (i.e., a person working in the federal bank). And in the modern faithless elector cases, states should not have the power to penalize or fine persons holding a public trust under the United States for performing their constitutionally mandated federal function (i.e., casting their electoral vote).
The precise characterization of the electors is very important. During oral arguments, only Justice Thomas seemed interested in this question. Should the Court fail to resolve this issue, that failure is likely to create unintended ripple effects in constitutional jurisprudence, more broadly. A ruling that electors are "subordinate" state officers would undermine the core reasoning of Thornton, and, perhaps, Powell v. McCormack. A ruling that electors are federal "officers" would conflict with Ray. Perhaps the Court could simply describe electors as constitutional unicorns–sui generis creatures of unknown provenance. If so, it would appear that the states should lack the reserved power to control these actors.
On the other hand, characterizing electors as holding a "public trust under the United States" would be consistent with the Court's case law. And that ruling could lead to a victory for the faithless electors. We say could because the states could still prevail, depending on how their election laws were drafted. Some of these laws purportedly bind electors before they cast votes under state law, and other laws discipline or fine electors after they cast votes under state law. The former laws are permissible; the latter laws are not.
Marbury v. Madison suggests that something of a middle position is possible. This seminal case could allow the Court to chart a narrow path between the Scylla of characterizing electors as "subordinate" state officials, and the Charybdis of characterizing them as "federal officers or agents." As all law students learn, Marbury posed the question of when an appointment becomes final. In Marbury, Chief Justice Marshall affirmed that Congress has the power to chart a "precise course accurately marked out by law," to complete the appointment. Chief Justice Marshall concluded that "since [William Marbury's commission] was signed by the President, and sealed by the secretary of state, [Marbury] was appointed." (This analysis is based on an amicus brief Blackman authored in 2015). Ultimately, Chief Justice Marshall held that delivery of the commission was not necessary to finalize the appointment. Rather, the final act was sealing the commission following the President's assent.
We can draw an analogy from Marbury v. Madison to Colorado v. Baca. We start from a basic proposition: state law determines when the position of elector vests in a candidate for elector. The next proposition is contested, but we think correct as a matter of original public meaning: once the position is vested in a candidate for elector, then state efforts to constrain the elector's discretion to vote consistently with their pre-general election pledges are highly dubious. But, we think it is uncontested that states retain the authority to regulate the behavior of a candidate for elector before his appointment becomes final under state law. For example, consider Justice Thomas's dissent in Thornton. He explained "we have long understood that [states] do have the power (as far as the Federal Constitution is concerned) to set qualifications for their Presidential electors." These qualifications are relevant prior to the elector's appointment becoming final.
This precise issue was flagged during oral arguments in Chiafalo v. Washington. Justice Breyer asked Lawrence Lessig about a hypothetical state law that required electors to be permanent residents. Breyer asked, "what happens if, in fact, Mr. Smith, who is a permanent resident when elected, changes his residency and goes to a different state before the vote is cast? Now he is not a permanent resident." Lessig replied that this elector could be replaced. "The difference," Lessig said, "is the line between the appointment and the voting." Lessig added, "The Constitution draws that line . . . But, once the voting starts, the State disappears." We would slightly modify Lessig's statement: once the appointment becomes final, "the State disappears." Our position has a virtue over Lessig's position: ours has a stronger textual anchor. Article II, § 1, cl. 2, provides "Each State shall appoint [Electors], in such Manner as the Legislature thereof may direct…." States have plenary authority to appoint electors. And that authority includes the power to set the qualifications to finalize such appointments.
We suggest that state law may provide that an elector is not actually appointed until he votes in compliance with his pledge under state law. Under such a state legislative regime, a person who purports to vote inconsistently with that pledge would not have become an elector in the first instance. First, the state could choose to disregard that faithless "elector's" purported "vote," for it was not made by an actual elector. Second, the state could replace that would-be faithless elector with another individual who complies with the pledge. Here, we draw an analogy to a common, long-standing, and well-pedigreed state practice: states routinely appoint substitute electors when a purported "elector" fails to attend the meeting of that state's electors. Third, the state could also fine a would-be faithless "elector," consistent with McCulloch, because such a person never actually held any federal position.
To put it another way, before a person has been appointed as an elector pursuant to state law, that person should be considered an elector-elect or an elector-pro tempore; that is, an elector in waiting. The states have the authority to regulate an elector-elect if he fails to comply with state law. At that juncture, he does not yet have a federal position of any sort.
This Marbury-inspired middle-ground allows the Court to avoid the McCulloch problem; to rule consistently with Ray; and leaves Thornton's Tenth-Amendment-related reasoning intact. And it would avoid any "chaos" that would result in a victory for the faithless electors in Baca and Chiafalo. Moreover, the Court would not have to resolve the hard constitutional question of whether a state can constrain an elector's discretion in voting for President and Vice President. This middle ground punts on that question.
If the Supreme Court adopts the position which we have outlined, some states might have to clarify when an elector's appointment becomes final, if state law does not already make this point clear. And there is still time to do so before the next general election. We are not alone in this view. Our position, which ties state control over electors to when the position of elector vests, is largely consistent with the position advanced by the amicus brief from the National Conference of Commissioners on Uniform State Laws.