Constitutional Status of Electors

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.”106 The truth of the matter is that the electors are not “officers” at all, by the usual tests of office.

107 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,”108 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.109

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.110 But, in Ray v. Blair,111 the Court reasserted the conception of electors as state officers, with some significant consequences.

Footnotes

106
In re Green, 134 U.S. 377, 379–80 (1890). [Back to text]
107
United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). [Back to text]
108
Hawke v. Smith, 253 U.S. 221 (1920). [Back to text]
109
Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934). [Back to text]
110
Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United States, 290 U.S. 534 (1934). [Back to text]
111
343 U.S. 214 (1952). [Back to text]