ArtII.S1.C2.4 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.

Electors are not “officers” by the usual tests of office.1 In 1890, the Supreme Court addressed the constitutional status of electors, stating:

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.2

Electors 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, the Court clarified that although electors “exercise a federal function[,] . . . they are not federal officers or agents.” 6 Instead, the Constitution provides that they act under state authority.7

Footnotes
1
United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). back
2
In re Green, 134 U.S. 377, 379–80 (1890). back
3
Hawke v. Smith, 253 U.S. 221 (1920). back
4
Burroughs & Cannon v. United States, 290 U.S. 534, 535 (1934). back
5
Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs, 290 U.S. 534. back
6
343 U.S. 214, 224 (1952). back
7
Id. at 224–25. back