by RICHARD E. BERG-ANDERSSON
"The Green Papers" Staff

There have been a number of e-mails sent to me inquiring about whether any Presidential Electors might defect when it comes time to vote in their respective States come this 18 December and, if so, if this is legal. Aside from the fact that I would find any such defections- even in this Election- a major surprise (as Electors are chosen by the Political Parties and are, pretty much by definition, Party loyalists), I have generally referred these e-mailers to the chart on our site at http://www.thegreenpapers.com/G00/Electors.html on which we have indicated which States- by statute- require its Electors to vote for the winners of the plurality of the Popular Vote for President in that State; I have also included the warning (dealt with rather superficially in a footnote underneath this chart) that such statutes thus "binding" Electors might or might not be unconstitutional. Perhaps I should expound upon this a bit.

There has never been a definitive court ruling as to whether Presidential Electors are, indeed, free agents who could, in theory, vote for someone other than the presidential and vice-presidential candidates of their Party (presumably- at least in all but Maine or Nebraska- the Party whose candidates had gained the plurality of the Popular Vote statewide). It is apparent that Electors were originally intended by the Framers to be free agents; the question has been- since 1796, with the clear advent of Political Parties on the national stage- just how free can the Electors really be in the midst of Partisan Politics? This question has become even more acute since the pervasiveness of the General Ticket ("Winner-Take-All") system of allocating Electors State-by-State since the 1830's.

THE "FAITHLESS SEVEN" - Presidential Electors who have defected in the past

The issue of the constitutionality- under the Federal Constitution- of State laws binding Electors largely turns on the question of whether Electors are Federal or State officers. The U.S. Supreme Court itself has seemed unsure of how to answer this over the years: in two 19th century cases- U.S. v. Hartwell (6 Wall. [73 U.S.] 385) [1868] and In re Green (134 U.S. 377) [1890]- the Justices writing the opinions suggested that Presidential Electors- since they merely cast the State's vote for President and Vice President- were no more Federal officers than the State Legislatures which, at the time, elected United States Senators or the People themselves who- in their respective States- voted for their Members of Congress (meaning the House of Representatives); yet, in two 20th century cases- Hawke v. Smith (253 U.S. 221) [1920] and Burroughs and Cannon v. U.S. (290 U.S. 534) [1934]- there was language suggesting just the opposite: that the Electors were Federal officers because they performed Federal functions which only existed under the United States Constitution and never existed at the State level prior to the Framing of the Constitution. However, in each of these four cases, these concepts appear as obiter dicta- judicial reasoning which has no direct bearing on the case then before the court (i.e., the statements reflecting these two conflicting views of Electors as either State or Federal officers, respectively, as found among the four cases cited were not germane to the issue of any of these four cases, thus they can hardly be said to be controlling).

To add to the confusion, there are two cases in which the U.S. Supreme Court did touch upon this issue obliquely and, in each case, the language in the opinion conflicts with the contemporaneous decisions cited in the previous paragraph. In Ex parte Yarbrough (110 U.S. 651) [1884]- one of a series known as the Ku Klux Klan Cases (as they involved allegations of organized intimidation of African-American voters in the South)- the Court ruled that Congress could act to protect the integrity of elections for Federal office, including that of Presidential Elector; the Court, thus, defined an Elector as a "Federal office" right smack in between the dates of the two 19th century cases cited in the previous paragraph which had implied otherwise. Yet, in Ray v. Blair (343 U.S. 214) [1952]- which involved the constitutionality of a rule by the Democratic Party of Alabama, backed up by a State statute allowing Parties to do so, requiring Electors to be bound to vote for the Party's presidential and vice-presidential nominees (a rule forced on Alabama Democrats by the National Democratic Party in the wake of the "Dixiecrat" rebellion at the 1948 Democratic Convention)- Justice Reed, writing the opinion, opined that a State could require a pledge by an Elector to vote for his Party's national ticket generally (thus, implying- despite the two 20th century cases cited in the previous paragraph- that Electors were not Federal officers), though this statement- too- was not germane to the case.

This Federal vs. State officer issue as regards Presidential Electors is important in discerning whether or not an Elector might be a free agent even in States which specifically bind its Electors, as it is clear that a State cannot "instruct" a Federal officer, even if that officer represents the State (such as a United States Senator). If Presidential Electors are, in fact, Federal officers, they should be free of any State requirement as to how they should cast their Electoral Vote; if they are, instead, merely State officers, such requirements (even if only by State Party rule- as opposed to State statute) would- of course- be legally binding. In the end, however, Congress (as outlined in the provisions of 3 U.S.C. 15 dealing with an Electoral Vote not "regularly given" [to use the language of the Federal statute]) is the ultimate arbiter- under Federal law- of whether a given Elector's vote is legal or not.