ArtII.S1.C2.1.2.2 Legal Status of Electors

Article II, Section 1, Clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Dealing with the question of the constitutional status of the electors, the Court said in 1890: The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. . . . In accord with the provisions of the Constitution, Congress has determined the time as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them.1 The truth of the matter is that the electors are not officers at all, by the usual tests of office. 2 They have neither tenure nor salary, and having performed their single function they cease to exist as electors.

This function is, moreover, a federal function,3 because electors’ capacity to perform results from no power which was originally resident in the states, but instead springs directly from the Constitution of the United States. 4

In the face of the proposition that electors are state officers, the Court has upheld the power of Congress to act to protect the integrity of the process by which they are chosen. 5 But, in Ray v. Blair, 6 the Court reasserted the conception of electors as state officers, with some significant consequences.

Footnotes

  1.  Jump to essay-1In re Green, 134 U.S. 377, 379–80 (1890).
  2.  Jump to essay-2United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).
  3.  Jump to essay-3Hawke v. Smith, 253 U.S. 221 (1920).
  4.  Jump to essay-4Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934).
  5.  Jump to essay-5Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United States, 290 U.S. 534 (1934).
  6.  Jump to essay-6343 U.S. 214 (1952).