Friday, May 15, 2020

Justice Thomas asks how to characterize presidential electors

By Josh Blackman - May 15, 2020 at 07:30AM

[Co-authored with Professor Seth Barrett Tillman]

On Wednesdays, the Supreme Court heard oral argument in two faithless elector cases. First, Chiafalo v. Washington arose from a criminal prosecution; the state imposed a $1,000 fine against a faithless elector. Second, Colorado Department of State v. Baca arose from a civil suit; the faithless electors sued the state for not counting their votes. (Justice Sotomayor recused from this case.) 

The parties disagree about the status of an elector. During oral arguments, Justice Thomas asked several questions about how to characterize presidential electors. First, he asked Lessig, "When you make your federal function argument, does that depend in part on your view that the elector has discretion?" Lessig replied, "The federal function establishes the discretion, Your Honor." Thomas asked the same question of the Washington Solicitor General: "how you would define the scope of the federal function concept" with respect to presidential electors? Purcell replied, "federal electors are not federal officers." And Thomas asked the same question of the Colorado Attorney General. Weiser replied, "this Court has made clear multiple times, electors are not federal officials. They are appointed by and overseen and transmit the vote of the states."

This issue was discussed at length in the briefs. Baca, the elector contended that he performs a "federal function," and the Supremacy Clause shields that function from state control. 

For nearly a century, this Court has made clear that presidential electors perform a "federal function" when they cast, tally, and transmit to the federal government their votes for President and Vice President. Burroughs, 290 U.S. at 545; see also Ray, 343 U.S. at 224 (noting that "presidential electors exercise a federal function in balloting for President and Vice-President" and comparing the "federal function" of a presidential elector to "the state elector who votes for congress[persons]"); Bush, 531 U.S. at 112 (Rehnquist, C.J., concurring) (same, quoting Burroughs, 290 U.S. at 545). It follows that states cannot control the performance of that federal function either directly or indirectly.

Colorado countered that electors are "subordinate state officers," and cannot challenge state statutes that control their duties. 

Based on this structure, this Court has stated on three separate occasions that presidential electors "are not federal officers or agents." Ray, 343 U.S. at 224; see also Burroughs v. United States, 290 U.S. 534, 545 (1934) ("presidential electors are not officers or agents of the federal government"); Green, 134 U.S. at 379 (presidential electors "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").

Both parties cite page 324 of Ray v. Blair (1952) to reach the opposite conclusion. Here is the relevant section: 

The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the federal constitution.

Burroughs v. U.S. (1934) reached a similar conclusion:

While presidential electors are not officers or agents of the federal government (In re Green), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States.

As did Fitzgerald v. Green (1890):

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.

We do not think Ray, Burroughs, and Green have definitively resolved the status of electors. The Court has, unequivocally, held that electors are not "federal officers." But it does not necessarily follow they are "subordinate state officers," as Colorado contends. You may ask, is there some third choice?

Baca countered that he is not a "subordinate state officer." Instead, he holds a "position of public trust under the United States." This is a phrase used in only one provision in the Constitution: the Religious Test Clause in Article VI. It provides, "[N]o religious test shall ever be required as a qualification to any office or public Trust under the United States."

Baca argues:

Presidential electors are not "subordinate state officers," Colo. Br. 10, because they are neither subordinate to any executive official nor officers of any state. Presidential electors are "appointed and act under and pursuant to the Constitution of the United States." Fitzgerald v. Green, 134 U.S. 377, 379 (1890). As such, presidential electors have a status equivalent to U.S. Senators or Representatives: individuals who hold positions of "public trust" under the United States but who are not "Officers" under the United States or any single state.1

Footnote 1 cites to, among other sources, an article by Tillman:

The text of the Constitution makes this point clear. The Elector Ineligibility Clause says that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." U.S. Const. art. II, § 1. From this passage, we know that neither Senator nor Representative nor Elector is considered an "Office of Trust or Profit under the United States." Yet in virtue of their exercise of sovereign powers delegated by the Constitution, all must hold a "public trust" under the Constitution and so cannot, for instance, be subjected to religious tests. See U.S. Const. art. VI, § 3 ("[N]o religious test shall ever be required as a qualification to any office or public Trust under the United States."); Vasan Kesavan, The Very Faithless Elector?, 104 W. Va. L. Rev. 123, 133 (2001) ("Electors, like Members of Congress, hold a 'public Trust under the United States.'"); Seth Barrett Tillman, Interpreting Precise Constitutional Text, 61 Clev. St. L. Rev. 285, 346 (2013) (the "public trust language accommodated the presidency, vice presidency, and members of Congress (and, perhaps, federal electors)").

Later, the brief cites Tillman's work in a related context:

First, if Colorado means to suggest that Senators and Representatives hold offices "under the United States," it is wrong, just like it is wrong that electors hold "offices under any State." This Court has held that Senators and Representatives are not "Officers of the United States." See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497–98 (2010). ("The people do not vote for the 'Officers of the United States.'"); United States v. Mouat, 124 U.S. 303, 307 (1888) (an elected official is not, "strictly speaking, an officer of the United States."); see also U.S. Const. art. I, § 6 (providing that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office," which makes it impossible for a Member of Congress to hold any "Office under the United States"); Tillman, supra, at 313 n.48 (noting that "Officers of the United States" and "Officers under the United States" are "related terms of art," and neither extends to Members of Congress).

There was one other reference to the Constitution's office– and officer-language. Justice Kavanaugh read the Elector Incompatibility Clause. It provides, "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." He asked the Washington Solicitor General, "What is the purpose you see of that provision if your theory of the electors is correct?" Purcell replied, the Framers "specifically prohibited members of Congress from serving in that role." Purcell is, in part, correct. The Elector Incompatibility Clause excludes members of Congress from being electors. But it also excludes others; it also excludes any "Person holding an Office of Trust or Profit under the United States." Purcell didn't address these other positions–or the possibility that there are other important categories, such as Article VI "public trusts under the United States."

We are very pleased that Lessig's legal team has favorably cited Tillman's 2013 article. We have developed these themes at some length in the Emoluments Clause litigation. And we are working on a comprehensive article that discusses the different types of offices and officers of the Constitution. We have dedicated an entire section to the status of electors. We explain why electors are best viewed as holders of "public trusts." Here is a preview:

The status of electors who vote in the electoral college poses some [interpretive] difficulties. Several courts have concluded that electors are state officers. We take no position on whether these decisions are correct as a matter of original public meaning. Recently, several legal historians took the position that presidential electors are "holders of an office 'of trust' under the United States," and would thus "be subject to the [Foreign Emoluments] [C]lause." We think this position is incorrect. The Electoral Incompatibility bars those holding an "office . . . under the United States" from serving as electors. If the legal historians were correct, then electors (who hold, ex hypothesi, an "office . . . under the United States") could not serve as electors. Electors may best be viewed as holders of "public trust under the United States."

We will share this paper in due course.

We do not know how the Court will resolve these complicated cases. There are a lot of overlapping issues that cloud any resolution. But the Court should not simply assume that electors are "subordinate state officials." The Constitution offers a textured and intricate approach to different kinds of offices and officers. There is no reason to unnecessarily decide the status of electors–a novel constitutional question–if the Court rules against the electors on other grounds.


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