What are Presidential Electors?

Marbury v. Madison and McCulloch v. Maryland could help decide the Faithless Electors Cases

|The Volokh Conspiracy |

[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. 

What is a "federal officer"? Here, the relevant precedents are U.S. v. Hartwell (1868) and U.S. v. Germaine (1878). (We discussed both cases on Lawfare). The latter case held:

[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.

Advertisement

NEXT: Backyard Cottages Could Be the Most Feasible Type of Housing To Build During COVID-19. Some California Cities Are Still Blocking Them.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. But who gets to *decide* who’s a real elector?

    I’d think that would be up to Congress, which is responsible for counting the votes. So if they want to count an elector or if they refuse, how would it be any court’s business to second-guess Congress? (Imagine a presidential election being litigated all during a elected President’s term!)

  2. I kind of liked the canon of construction suggested by Justice Kavanaugh during oral argument: “avoid chaos”. And that canon militates clearly against striking down state restrictions of electors.

    1. “Avoid chaos” does seem to be the overarching theme in many cases.

    2. You count the votes and see if anyone has a majority. What’s chaotic about that?

      It’s only chaotic in the same way that senators might vote contrary to the interests of the people who elected them, or jurors might vote contrary to the wishes of the lawyers that gave them the thumbs up during selection.

  3. Blackman’s discourse neglect another possibility, namely that the electors are special employees of the federal government as are members of federal advisory committee. The word
    “special” denotes that the persons are uncompensated (receive no emoluments) to execute their duty (to provide advice on matters specified and limited to those specified by the cognizant federal official). Special employees are bound by and must sign conflict of interest statutes and regulations.
    Special employees are not government officials or officers but occupy a narrow middle ground with a duty and concommitant privilege of access to non-public data.

  4. How about saying electors are similar to jurors? The state can set up qualifications and a system for deciding who will serve, but they aren’t subordinate officers and (normally) can’t be directed how to vote.

    1. Electors are significantly different than jurors. Jurors need to have a degree of independence that doesn’t seem to be required for electors. Jurors can’t even pledge to vote a certain way, regardless of whether the pledge is enforced.

      1. Now that would be fun….prohibit electors from pledging to a particular candidate.

  5. I agree with most of your analysis. Trying to wiggle a way for states to replace electors fall flat.

    “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President,” Simple reading is the vote must be done by an elector. Not by a potential elector. Words are important.

    Your attempt, while noble and trying to give the states an out.
    “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. ” and “At that juncture, he does not yet have a federal position of any sort.” To read “he Electors shall meet in their respective states, and vote” as vote then elector would be pig latin.

    1. I agree. It’s a good analysis, but it fails at precisely that point.

      If your appointent as an Elector only becomes final once you have cast your vote, then you weren’t an Elector when you cast it.

      1. Interesting. Obviously the President, Vice-President, and members of Congress aren’t officially those things until they take the oath of office. They don’t become those things right when elected. Is there a similar point for members of the Electoral College, I wonder? Prior to them casting their votes.

        1. Reader Y references 3 USC 1 to 4 below though I don’t entirely agree with his analysis. 3 USC 1 specifies that :

          “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

          In practice, though that may be election day, it isn’t appointment day because the election takes a while to count. So we’re left with 3 USC 2 :

          “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

          So the last few words of that give the State total control over the time and manner of appointment.

          Then there’s 3 USC 4 :

          “Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote.”

          All of which, to me, adds up to the State having all the leeway it likes to appoint and replace Electors. Contra Reader Y, there’s nothing to suggest that the State may not appoint Electors provisionally, and replace them at will, up to the point of actual formal and final appointment.

          But eventually there’s a hard deadline supplied by the 12th Amendment :

          “The electors shall meet in their respective states and vote by ballot for President and Vice-President…”

          ie the only people who can vote are “electors”, not proto-electors, not electors-elect, not Schrodinger’s-electors – just electors.

          By the time you vote, you must be an actual appointed Elector. The appointment must precede the vote.

          But if the State’s appointment process requires that it wait and see how you vote, before it finalises your appointment, then the vote must precede the appointment.

          If the vote must precede the appointment and the appointment must precede the vote, then there’s a problem.

    2. Agree completely. I posted something very similar before reading the comments. I think the State has up until voting starts. But once the act of voting begins that person is necessarily an elector.

  6. Perhaps the Court could simply describe electors as constitutional unicorns–sui generis creatures of unknown provenance.

    That is my thought. Why the need to shove them into one of those categories. They are electors.

    If so, it would appear that the states should lack the reserved power to control these actors.

    I don’t see why that follows. The state legislature gets to decide how electors are chosen. Why that couldn’t encompass a requirement that the candidate for elector pledge to vote for specific individuals for President and VP (or else declare himself “unpledged”) is not clear to me, and for that to be meaningful requires that the state be able to penalize those who violate their pledges.

    It’s nice to see that Blackman, after working his way through his maze of types of officers and offices and whatnot, develops a scheme that avoids chaos, but it looks awfully convoluted to me, hence vulnerable to attack from some other lawyer.

    The whole issue is utter BS. It’s hard to believe lawyers, judges and legal faculty are forced to spend time on this nonsense.

    1. I’m with you. I think that they are unicorns, and unicorns exist under whatever magical powers create them. In other words, I disagree with Blackman’s suggestion that if they are sui generis, then the state doesn’t have the power to constrain them. I like the step-by-step logic of saying that they are electors-in-waiting, appointed by the state for the specific function of voting for the presidential candidate selected by the voters of the state, and that they serve as electors until that time when they have marked their ballots and the state’s ballot pack is sealed and marked as ready to deliver to Washington. But until that pack is sealed, the elector may be replaced. That stand’s up to Kavanaugh’s suggestion of ‘avoiding chaos’.

  7. I think the out you propose “The elector isn’t an elector until they vote like we want them to” is too cute.

    I prefer the alternate solution. An elector signs a contract with the people of the state to vote as the election results indicate. Once the elector signs the contract, the state can nominate the person an elector.

    The elector can violate their contract (and vote for someone else), but must pay the penalties for violation of the contract, under civil law.

    1. If it was that easy, we’d already have candidates for public office signing contracts to deliver what they promised. Hasn’t happened.

      Which brings up the fact that electors are elected. The way this question ought to be phrased is, “what do we do when elected officials don’t fulfill their pledges”, and the answer is mostly “just suck it up and take it”.

      1. But the choice the elector faces is orders of magnitude simpler than those faced by elected officials such as governors or legislators. It’s an extremely simple one-shot vote for one of a very small number of candidates. There’s no need for compromises or tradeoffs, no argument over whether the elector kept his word.

        It’s trivial to know whether the pledge has been fulfilled.

        1. Electors are still elected without a contract. The central point remains as stated: “what do we do when elected officials don’t fulfill their pledges”, and the answer remains as stated: mostly “just suck it up and take it”.

          1. Technically speaking, “electors” aren’t directly elected in most states. Rather, the state selects the electors from a range of people.

            Usually, in accordance with the state law, the state will select people who have pledged to certain candidates who win a plurality of the presidential vote in the state. But the state has a certain amount of leeway in selecting “which” electors are selected. If some sign contracts to support certain candidates (as opposed to just “pledging”), that may be allowed.

        2. “It’s trivial to know whether the pledge has been fulfilled.”

          True, but it doesn’t follow from that there must be a remedy if the pledge is not fulfilled.

          1. Thus that follows a simple contractual provision if the pledge is violated, with a given pledge.

        3. I don’t consider 100+ million native born citizens over the age of 35 to be a “very small number of candidates”.

          Seriously, it’s only simple if one accepts the states’ point of view in this case. If one accepts the original concept (admittedly not very popular now), the electors’ duty was to try and pick the best president for the United States, independent of the crude political interests of the people who elected/appointed them. That’s not simple at all, and it’s filled with compromises and tradeoffs.

          But I understand your point is that the pledge itself is straightforward and the category of “faithless electors” is precisely defined. Fair enough, but that just means that IF you are going to punish breaches, you can figure out who to punish. It doesn’t answer the question of whether you can or should.

          1. It doesn’t answer the question of whether you can or should.

            Whether you should or not is, I suppose, a political question. But I suspect that if it ever become a serious issue there would be overwhelming support for “Yes, we should.” When I cast my vote for electors I want them to vote for my preferred candidate, all the more so if they have pledged to do so. I suspect something well north of 99% of voters agree with me.

            Can we? Well, my opinion is that we can, but I might be wrong. What I really think, given the various arguments, is that it is possible that the Constitution simply does not answer that question. That means that all the pettifoggery about officers and officers under, offices of trust, whatever, is so much nonsense, and that we have to rely on some other way to decide. Maybe two centuries of practice, combined with general expectations, is enough.

        4. Bernard11, using your logic: Can an elector legally accept payment for voting for one candidate over another?

          1. XY,

            I’m not familiar enough with bribery statutes to know for certain, but that sure looks like bribery to me.

            In any event, if the legislature mandated penalties for failure to keep the pledge, or stick to the terms of the contract A.L. suggests, then it could certainly include a harsher penalty for doing so in exchange for payment.

      2. As bernard notes, it’s typically not that simple. An elected official typically faces a multitude of votes, questions, analyses. Any competent electoral official could sign a pledge promising to introduce resolute x, or vote for resolution y, and easily meet those criteria. They could “introduce” it, with no intention of following through, or resolution “y” could be subtly different from what was promised, and thus their vote could be up for grabs (and argued another way).

        Electoral college members have a single job. Just one. Vote for Candidate z on the ballot. (Notably, the first ballot, everything after that is up for grabs, and the number of ballots that have gone beyond the first are fairly minor). Then they’re done. Unlike just about every other electoral official, their “duties” consist of voting exactly once (in principle), then retiring from office.

        1. “Electoral college members have a single job. Just one. Vote for Candidate z on the ballot.”

          Well, you want that to be their job, it’s not an unreasonable desire, and a lot of people agree. But the job isn’t stated that way in the constitution, and it’s not clear that states get to write the job description, which is why there’s an SC case about it.

          1. So, there’s a previous SC case that the states can force someone to “Pledge” to a candidate before being chosen as an elector.

          2. the job isn’t stated that way in the constitution,

            But the requirements for the job are left to the state legislature, and there’s nothing that says the legislature can’t impose whatever requirements it wants.

            At best, I think you have an argument that the Constitution doesn’t actually answer the question, so we may as well consult the oracle at Delphi as look for the answer in the positioning of a Constitutional comma.

    2. As I have argued previously, if an elector has a constitutional right to vote as they wish, then a civil penalty for exercising that right ought to be unconstitutional.

      1. That sounds right, though there might be a work around.

        1. The State requires anyone wanting to be an Elector to pay the State $250,000 to be eligible for election.
        2. It is customary*, though not a contractual obligation, for the State to refund the fee after the Elector has voted in accordance with his pledge (the Legislature votes funds, in advance, to allow the reimbursement)
        3. The State makes it a criminal offense for a third party to offer money to the Elector as an inducement to vote, or reward for voting, against his pledge

        Not watertight, but watertighter than now.

        * would be more watertight if the State could enact a right to get your fee back if you follow your pledge. But substance over form Judges might argue that the combination of fee and auto-refund was some kind of impermissible compulsion

        1. But substance over form Judges might argue that the combination of fee and auto-refund was some kind of impermissible compulsion.

          Such judges would correctly conclude that not refunding the fee is tantamount to an unconstitutional penalty.

          1. Would it be illegal for an elector to accept a large sum of money (Say, $1,000,000) from certain well-off politicians, purely as a gift? And then the elector suddenly cast their vote for that politician?

            1. I think so. Although the government cannot generally punish speaking, I suspect it can punish, as a bribe, accepting money in exchange for making a speech that gives an advantage to the person offering the money.

  8. Question:
    What statement(s), if any, must electors sign before they are entitled to carry out out their duty?

  9. 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.

    How can an unappointed elector vote? You set up a nice chicken-and-egg catch-22 there.

    1. Well, if you want to go that route, who was it that neglected to get Marbury’s commission to him before midnight?!?

      1. Well, I didn’t get it to him before midnight.

  10. Since this all seems to be a big semantics game. How is it not two different duties to vote for president and vote for vice president, thus making it so that electors “have duties”?

  11. “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

    If the electors have no discretion, why bother to exclude anyone? We could let the Presidential Candidates be electors. It sounds contradictory to say no discretion then restrict who can do it.

    Reductio ad absurdium: the Constitution does not explicitly say that electors must be human. A robot, or a dog, or a voice recording, could do the job if no discretion is needed.

  12. My college history professor described it thus: members of the house of representatives are chosen directly by the people. Members of the senate are chosen at one remove, by being chosen by the legislature which is chosen by the people. Presidents are chosen at two removes, chosen by the electors who are chosen by the legislature which is chosen by the people. Judges are selected at three removes, appointed by the president who is elected by the electors who are chosen by the legislature which is chosen by the people. The more important the office, the more elite is the selection process.

    1. Presidents are chosen at two removes, chosen by the electors who are chosen by the legislature which is chosen by the people.

      Except that’s not what happens, and is not what anyone has expected to happen for two centuries.

      1. Yeah, the originalists don’t have a lot to go on here, and it’s a bit entertaining to watch them spin and spin.

        1. Sarcastr0, to my way of thinking, Rufus King rules apply: For God sakes man, be careful whom you send! (apologies for the sexist reference, of course…heh, heh).

          What could possibly be more Originalist? 🙂

  13. When you refer exclusively to 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. you’re ignoring the 14th and 24th amendments.
    14th secion 2: But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Well, gee, the people have a right specifically mentioned in the amendment to vote for electors. On the passing of this amendment, legislatures lost the ability to in such Manner as the Legislature thereof may direct.

    Now for the 24th, section 2: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax. Again, a specific mention of the rights of citizens to vote for electors.

    And it’s now done in two ways- the Maine and Nebraska way, which I favor, and winner take all in the other 48 states. Under these two amendment, the National Popular Vote Compact is quite clearly unconstitutional. If the people of state vote for Candidate 1, and the state awards the EVs to candidate 2 because candidate 2 won the popular vote in other states, the people’s right to vote for their electors has been removed from them.

    1. It’s a good point but I think it’s defeated by the word “any”. If we read it your way, it would illegal for a state to not have a primary under the 24th, and if they had appointed judges rather than electing them, they would lose representatives under the 14th.

      What it has to mean is that IF the state holds an election, they have to let most everyone over 21 vote, and they can’t do a poll tax.

    2. You are reading that incorrectly. They don’t have the right to vote. But IF the legislature of the state chooses to have an election they cannot restrict it in ways that violate the amendments.

      Look at the 24th for example. It includes President and Vice President in the clause. But we know we don’t have a right to vote for those positions. That is what the electoral college does.

      They don’t grant a right to vote. They only grant right not to be discriminated against when an election is chosen (except for HoR and now Senate where it is constitutionally mandated).

  14. I’m completely with you right up until your suggestion that States can consider those not voting according to the pledge as electors. The Constitution is clear that ONLY electors are allowed to vote. Therefore any person voting is already an elector. Not voting according to the pledge does not change that. The State, under my reading, has up until the moment voting starts. At that point the elector’s position as elector has vested.

    States can require a pledge to be elected, but I don’t think they can be penalized for violating the pledge. They can only be penalized if it is determined they made the pledge fraudulently, that is they had no intent of honoring the pledge at the time it was made. That is because the fraud (or possibly some form of perjury) occurred prior to them being an elector and is not conditioned on their act as elector. Any punishment that is in any way conditioned on the act of voting is impermissable.

  15. Purports to vote?

    I do not find this language persuasive. What, they are only appointed after they “purport to vote” in the right way? And after this, what, they become federal officials for a millisecond?

    And after this, they cannot change their “purported vote”?

    Assuming that is the argument (which isn’t entirely clear from the blog post discussion), that would make little sense. And here is why. If electors are federal officials occupying a federal office then any power they have to do anything of significance derives from acts made WHILE they hold that office, and not before. Nothing they do before they become federal officials is binding in an official capacity.

    There can be no “purported vote” that occurs before they are federal officials which then binds the nation, since they have not been appointed. So, there must be some official act that occurs after they are appointed. Like, you know, an “actual vote.”

    Marbury v. Madison does not actually support an argument for a so-called middle ground. William Marbury never exercised any “purported power” as a federal “Justice of the Peace” before (or even after) his appointment, which the Supreme Court ruled (in dicta, since according to the Supreme Court, it never had jurisdiction) became effective when the Great Seal was applied to the commission by John Marshall, then Secretary of State. But rather than exercise any power before this appointment, William Marbury never exercised any federal power at all.

    Maybe the other “candidate” for this “middle-ground” the authors have in mind is not William Marbury, but instead then Secretary of State John Marshall. Maybe they want to argue that by applying the Great Seal to Marbury’s commission, he did something equivalent to a “purported vote.” And when the subsequent Secretary of State James Madison refused to deliver that “vote,” he thereby denied the effect of this “vote.” But that doesn’t work, because when John Marshall as Secretary State (or John Adams as President of the United States) applied the Great Seal to the commission (or signed the commission) they were then federal officials, not themselves candidates who were waiting to receive their offices.

    The concept of a mere candidate for office able to act before they take office in a manner that is officially binding on the nation when they take office is unprecedented.

    Also, if this concept were right for electors, it would also have to be right for U.S. senators. To create a dramatic hypothetical, imagine that there was a Presidential impeachment and, by all accounts, it looks like the President is going to be acquitted by one vote. Imagine that a senator opposing impeachment dies during that time and that state law provides for the appointment of a replacement senator appointed by the governor of the state. Let us further suppose that under state law, candidates for an appointment to the Senate had to issue a “purported vote” while they were still mere candidates on all matters then pending in the Senate, to be transmitted to the Senate. Imagine that the governor could, in deciding on whom to appoint could consult such purported votes in deciding whether or not to complete the appointment. Imagine that the Senate passed a new rule making such “purported votes” binding on any newly appointed Senator, not allowing them to change such “purported votes” after their admission. And imagine that the governor looked at the “purported votes” of candidates and would only appoint someone whose “purported vote” was to impeach the President.

    If the rule suggested by the authors, making “purported votes” made before appointment as electors somehow binding on them after they take office is correct, it is equally correct for senators. This would imply a potential power in governors (with the cooperation of a Senate majority that changed or kept in place Senate rules making such “purported votes” binding) to appoint senators whose initial votes must be “correct.” This would significantly diminish the power of individual senators and representatives.

    But wait, there is more. If it is correct that the Senate may make rules that effectively control a senator’s vote in this manner, couldn’t it make other rules that purport to control or determine a senators vote in other situations? Since it takes less than a two-thirds majority to change these rules, wouldn’t this be a potentially treacherous territory to enter into?

    The argument by the authors in favor of “purported votes” is not only unprecedented, its adoption could have serious unintended consequences.

  16. I think the position taken here, that the appointment of electors is not actually complete until the day they cast their ballots, conflicts with the plain language of 3 USC 1, which sets the day that electors shall be appointed as the day we call election day. For a state to claim an appointment is not finalized that day conflicts both with statute and the Constitution’s clear language assigning the time of appointment of electors to Congress, and not the states.

    3 USC 4 lets states fill vacancies. But a vacancy means an elector was previously appointed an removed. I think electors can only be removed for good cause. Bribery Is clearly good cause. But it is not clear to me moving out of the state between the popular-ballot day and election day is good cause. There’s nothing inherently corrupt about moving as there is with bribery. Nor would such a requirement prevent corruption. We could get situations where operatives pressure electors’ employers are fire fire them unless they move so the position will be vacated.

    1. For completeness, I don’t think 3 USC 2, which addresses postponing an election to a different day in cases where electors are appointed by election, covers an administrative appointment of an unelected elector on a different day based on something that occurred after election day. Only the vacancy statute (3 USC 4) covers that.

      Citizen-voters hold popular elections to appoint a slate of specific named electors. It doesn’t matter whether they know the names of the people their votes appoint or not. Once the popular votes are cast and counted, the electors are appointed.

  17. Schrödinger‘s electors: they both are and aren’t appointed until they cast their vote.

  18. It’s understandable that law professors, being professors, would try to theorize about their subject, devising categories and then attempting to place objects within the categories, deduct properties of the objects by means of the category properties, and addressing various hupotheticals.

    But I think judges should use a more concrete, narrower approach. Perhaps electors hold a federal public trust which is neither a federal office nor a state office. But whether they do or don’t, there are constitutional provisions and authorized federal statutes that in my view specifically control.

    In my view, any time the Constitution refers to terms like “elector,” “ballot,” and “vote,” it necessarily refers to a free choice. I think these terms have consistent meanings across the constitution which preclude soviet-style elections, even where only a portion of the public can participate.

    I don’t see how what category a presidential elector fits into even matters. I don’t see whu it matters even if an elector is a state officer. State legislators may well be state officers. But can the majority party of a state structure its laws so that its secretary of state can dismiss an elected state legislator if they don’t vote the right way? States can have ballot propositions where electors take matters out of the legislature’s hands. But they can’t force legislators to vote a certain way on matters within the legislature’s prerogative. Same for cases where “electors” are simply citizens, such as Congress and state legislatures. Perhaps voters are state officers when they vote for state officials in state elections. Perhaps not.

    But a state cannot rig their vote in any case. It doesn’t matter. Once they are elected, it can’t Puppet-master control how they vote on matters they get to vote on.

    1. As a practical matter, how do you propose to avoid the risk of a political disaster when electors choose an unexpected President?

      The chance is small, true, but the sense of betrayal, and the upheaval that would follow, would be huge. This is one of the few things on which I agree with Kavanaugh.

      I mean, let’s be blunt. On the one side we have some Constitutional nitpicking (a heretical phrase on this site, I understand) and the argument about what the Framers expected the electors to do. On the other we have two centuries of practice, plus the expectations of the voters, plus major problems if those expectations are not met.

      I’ll take the second choice.

      1. A basic way to avoid irrational expectations is to give people accurate information. Often, voters aren’t even told the names of the electors they are voting for. They often aren’t even made aware the people they are voting for exist. They are told nothing about them except some pledge they made. How can voters possibly be expected to vet either their likelihood of keeping their pledges or their ability to exercise independent judgment if they don’t know the most basic information about them?

        The idea that people vote for actual presidential candidates is completely fraudulent. When people are defrauded, of course they feel swindled. The way to avoid people feeling defrauded is to stop the fraud, stop pretending electors don’t exist, bring them out of the shadows, let people know about, understand, vet, think about the electors.

        Thats the practical, concrete way to stop people feeling defrauded. Stop defrauding them.

        If you want a system where people vote for Presidential candidates directly, amend the constitution to change the system. It was done for Senators.

  19. What’s clear to me from all this discussion is that we badly need an Amendment to clarify all this.

    Preferably it should eliminate actual electors entirely and merely have the states report who their EV’s are to go to. While we’re at it, let’s shorten the transition period as well. It’s not like newly elected individuals need to take a stagecoach to Washington.

    1. Perhaps we’d be better off going back to the original system as designed. Have the states appoint electors however they wish to do it, and then the electoral college can choose who it thinks best. Having pledged electors with no discretion hasn’t exactly been producing great Presidents.

  20. I’m not buying this argument (or rather, the proffered “solution”).

    It asserts that the elector does not actually become such (but instead remains merely an “elector-elect” or something) until after he casts his vote in accordance with the state’s dictates. But he has no power to cast _any_ vote until he has actually become an elector, however that point is defined (i.e., certification of the election results, a formal swearing-in ceremony, or some such). Prof. Blackman is asking the Court either to condone an ultra vires action or to allow the state to establish a retroactive qualification, neither of which is permissible.

    I do agree with the rest of his analysis: presidential electors are neither state officers nor federal officials; they are indeed “constitutional unicorns.” That may feel uncomfortable (we like putting things into boxes) but in reality there is nothing wrong with it. I think it’s clear that the state cannot force an elector to vote in any specific manner. It can extract a pledge before he is designated to the position, but after that he becomes a free agent (just as is any Senator or Representative; the state cannot control their actions, either). Frankly, I don’t see that as creating “chaos”. We have had lots of faithless electors in the past, and it has never been a problem. And if enough electors were to become “faithless” in some future presidential election, such that no candidate received a majority of the electoral votes, the Constitution already contains a mechanism for resolving it (throw the election into the House). There is no real problem here.

    But if a state really wants to constrain its electors I think there can be a means of punishing any who violate their pledge (i.e., are “faithless”), just not in the manner Washington State attempted. Have the elector post a bond post a bond for the faithful observance of his pledge, prior to the general election. If he later violates that pledge his Electoral College vote stands (it has to), but he forfeits the bond. The elector can still vote his conscience, as the Constitution seems to require, but at a cost. And by posting the bond as a condition of his selection as an elector he has given his prior consent to the punishment.

Please to post comments