What are Presidential Electors?
[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 fas
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