by Wilbur A. Siebert

I recently read your piece on Presidential Electors, May Electors Defect?, and I would like to point out that there are multiple levels of responsibility/authority with respect to Electors. If a Federal issue should arise as it relates to an Elector, this does not make the Elector a "Federal Officer"; it merely makes for the particular Federal issue. If the U.S. Supreme Court hands down a ruling requiring the Governor of a State to take some action, would that then make the Governor a "Federal Officer"?

Chief Justice Rehnquist, in his concurring opinion in Bush v. Gore (00-949), states, "While presidential electors are not officers or agents of the federal government (In re Green, 134 U.S. 377, 379), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated."

In my Political Science class a question was asked on a test as follows: "Could the electors elect someone for President that was not running?" My response to this question was either No or False. Since the professor stated in class (I must have been distracted elsewhere) that a presidential elector voting for someone other than the candidates running is possible, the answer rightfully stands as True, insofar as that particular test is concerned; however, this does not mean my professor is actually correct, for, when I read the per curiam opinion of the Court on Bush v. Gore (00-949), I find the following passage:

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated") (quoting S. Res. No. 395, 43d Cong., 1st Sess.)."

Also, Chief Justice Rehnquist, again in his concurring opinion of Bush v. Gore (00-949), states that "3 U.S.C. § 5 informs our application of Art. II, §1, cl. 2, to the Florida statutory scheme, which, as the Florida Supreme Court acknowledged, took that statute into account. Section 5 provides that the State's selection of electors "shall be conclusive, and shall govern in the counting of the electoral votes" if the electors are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college. As we noted in Bush v. Palm Beach County Canvassing Bd., ante, at 6.

"Since §5 contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the ‘safe harbor' would counsel against any construction of the Election Code that Congress might deem to be a change in the law."

If we are to respect the legislature's Article II powers, therefore, we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the "safe harbor" provided by §5."

This opinion clearly would frustrate any large scale movement by Presidential Electors to violate State regulations. A large number of States require electors to vote for the candidate as outlined by State law.

I look forward to a response,

Wilbur A. Siebert

Mr. Berg-Andersson responds:

A few notes, if only by way of clarification, if I might, before I take on the "meat" of what Mr. Siebert has written:

My piece, to which he is referring- MAY ELECTORS DEFECT?- was posted, as is clearly stated underneath its title, on 12 December 2000 (and, in fact, had actually been written over the day or so previous to its actual posting on 'The Green Papers'): the U.S. Supreme Court handed down its decision in Bush v. Gore (about which I will have more to say shortly) that very evening; thus, at the time this piece was written, I would have been most unaware of what would be stated amongst and within the various concurring and dissenting opinions issued in relation to the main 5-4 per curiam opinion ordering the cessation of the statewide recounts in Florida previously ordered by the Florida Supreme Court. Therefore, that piece reflects the constitutional situation as it seemed to stand as of that morning of posting- in other words, some hours prior to the U.S. Supreme Court's decision in Bush v. Gore.

It must, first of all, be noted that my piece reflected, as I've said, "the constitutional situation": it was not a statement of my personal opinion as to whether or not Presidential Electors are or are not "Federal Officers"; clearly, over the years- as what I outlined in that piece, indeed, shows- the U.S. Supreme Court had been unable to come to any definitive conclusion as to whether or not Electors are, indeed, "Federal Officers": that was all that this now-nearly three year old piece of mine was intending to illustrate. Truth is, however: the opinions in Bush v. Gore have not at all definitively answered that question either!

Yes, Chief Justice Rehnquist, as Mr. Siebert correctly points out, accepted- in his concurring opinion in Bush v. Gore- what I, in my 12 December 2000 piece, pointed out seemed to be the prevailing 19th Century approach- that Presidential Electors are not "Federal Officers"- and, indeed, quoted from one of the cases I myself cited in my piece [In re Green (134 U.S. 377)]. However, the Chief Justice's concurrence was only joined by two other Justices (Scalia and Thomas) and, as this is merely 3 of the 9 Justices on the high Court, his words can hardly be said to be at all controlling: indeed, it seems the Court made their main order a per curiam one precisely because there was no broad, majority opinion on the constitutional underpinnings of the case- the fact that Rehnquist, Scalia and Thomas concurred suggests at least some disagreement with Justices Kennedy and O'Connor, the other 2 Justices joining in the per curiam decision that ordered the Florida recounts stopped.

The portion of the per curiam opinion itself quoted by Mr. Siebert does not at all address the question of whether or not Electors are "Federal Officers"- let alone the issue of whether or not Electors may "defect" (that is, cast their Electoral Vote for someone other than the person they are pledged to support, let alone someone who does not even appear on the ballot as a presidential [or, for that matter, vice-presidential] candidate). All with which that which Mr. Siebert has quoted deals is the plenary power of a State's legislature (accepted by the high Court in Bush v. Gore as directly granted by the text of the Constitution) to "direct" the "appointment" of Presidential Electors; nothing in Mr. Siebert's citation from the per curiam in Bush v. Gore deals one whit with what these Electors may or may not do once they are, indeed (and by whatever means the Legislature, in fact, "direct"s), so "appointed"! As a result, it might even be further argued that Chief Justice Rehnquist's statement, in his concurring opinion, as to Presidential Electors not, in fact, being "Federal Officers" may well be in the realm of obiter dicta- judicial reasoning which has no direct bearing on the case then before a court- as the issue of the Electors being "Federal Officers" (and, thereby, perhaps enjoying at least some measure of "free agency" from State direction) does not at all directly touch on the efficacy of the plenary power of a State's legislature to "direct" the "appointment" of said Electors.

My 12 December 2000 piece, besides answering a veritable plethora of e-mail I had been receiving for over a fortnight prior to that time (mostly from Gore supporters engaging in more than a little wishful thinking that, somehow- somewhere, 3 Bush Electors might actually, instead, vote for Al Gore simply because Al Gore garnered more Popular Votes than George W. Bush, thereby giving Gore the 270 Electoral Votes he would need in order to be constitutionally elected President of the United States), was also intended to expand upon and clarify a note at the bottom of the table found at the URL http://www.thegreenpapers.com/G00/Electors.html, where I wrote- in explaining the column on that table detailing which States (at least as of 2000) statutorily forced their Electors to cast their Electoral Votes for the winning presidential/vice-presidential ticket in that State:

This is a tricky area: in many states which so require by law [marked "Yes" in the table], the statute specifically states that the Electors shall [or must] cast their ballots to the national ticket which received the most popular votes; in other states, the statute is not so specific- however, the language regarding how the vote of the voter is to be applied to the allocation of Electors implies just such a pledge. When in doubt, this column has been marked "No"- the reason being that these state laws pledging (or implying a pledge of) the Electors to vote for the winning national ticket are of dubious constitutionality (theoretically, the Electors- like U.S. Senators- though representing the State, are Federal officers: the State cannot legally "instruct" Federal officers which, nonetheless, represent it; thus, at least in theory, the Electors are 'free agents' who can cast their ballots for President and Vice President as they see fit- the only check on this being whether or not the Joint Session of Congress which counts and tabulates the Electoral Vote accepts the Elector's votes as valid. Keep in mind, however, that- even re: States where this column reads "No"- there may be political party intradiscipline which will keep an "appointed" Presidential Elector from not voting for the winning ticket!)

I later felt obligated to explain exactly why there was this "dubious constitutionality" within the concept of a State requiring, by force of law, a Presidential Elector to so honor his or her pledge to vote for the winning ticket in that State. Again, I was not at all expressing a personal opinion in the above-quoted paragraph, merely noting that the Constitutional Law here was rather murky: my piece "May Electors Defect?" was an attempt to better explain "why this murkiness?". Nothing Mr. Siebert has quoted, however, makes it any the less murky!

Finally, on to the "meat" of what Mr. Siebert has written:

Mr. Siebert's professor is the one who is correct here: the answer to the question on that Political Science test is, indeed, "True"- and not only in relation to that particular test! Why? Because Electors have voted for candidates not on the ballot and, furthermore, have subsequently had their Electoral Votes formally, and officially, counted by Congress in the respective Joint "Tabulation" Session following each Presidential Election involved.

Simply take a look at the table we at 'The Green Papers' call THE FAITHLESS EIGHT:

In 1956 and 1976, Presidential Electors pledged to candidates who did, in fact, appear on the ballot in the respective States involved- States in which they had won at least the plurality of the given State's Popular Vote- voted, instead, for persons not at all on the ballot! We might also give "[dis?]honorable mention" to the Virginia Elector in 1972 who cast his Electoral Vote for a candidate who- while on the ballot in at least 4 of the 50 States in that year's Presidential Election- was not on the ballot in his own Commonwealth of Virginia. In all three cases, Congress counted these Electoral Votes as having been "regularly given"- as required by 3 U.S.C. §15; in fact, the only time members of both houses of Congress ever challenged the counting the Electoral Vote cast by such a so-called "faithless" Presidential Elector was when, as a consequence of the 1968 Presidential Election, a North Carolina Elector had cast his vote for a candidate other than the one to which he was pledged who was on that State's ballot that year: his "faithless" vote was ultimately counted.

What seemed to have been largely lost in almost all the punditry and pontificating I saw in the days, weeks and months following the U.S. Supreme Court's per curiam opinion in Bush v. Gore (whether pro-Gore/anti-decision, pro-Bush/pro-decision or relatively neutral) is that which I wrote in the note re: the 'Pledged by statute to support winning ticket?' column on that table cited earlier in this response- that is, that the final test as to whether or not an Elector's votes for President and Vice-President actually count is "whether or not the Joint Session of Congress which counts and tabulates the Electoral Vote accepts the Elector's votes as valid". Come its Joint "Tabulation" Session on Saturday 6 January 2001, Congress certainly retained the plenary power- over and above any plenary power of, say, the Florida State Legislature (as it is a plenary power granted to Congress under the U.S. Constitution, the Supreme Law of the Land)- to, if it so desired, actually reject Florida's 25 Electoral Votes for George W. Bush (a rejection which would have then given the Presidency to Al Gore, by an Electoral Vote of 266-246 with 1 "faithless" abstention [257 Electoral Votes (a majority of 513 [538-Florida's 25]) then being necessary to elect]), so long as Congress acted under the still-prevailing statutes originally embodied in the Electoral Law of 1887 (statutes that, being of an Act of Congress, Congress could have very well changed- and, by the way, still can change!), the fact that the political breakdown of the 107th Congress was such that this was not at all likely being largely immaterial.

As things turned out, the better angels of the natures of the then-50 Democrats in the U.S. Senate prevailed, thus no sustainable challenge (which requires a Senator to join any Congressmen so objecting) to the counting of Florida's 25 Electoral Votes for George W. Bush (and Richard B. Cheney) was made before that 2001 Joint "Tabulation" Session and so, two weeks later, Bush and Cheney were each duly sworn into office as the constitutionally (hence, legitimately) elected President and Vice-President of the United States.

Case closed.

For Congress remains, as it has ever been since the U.S. Constitution first became effective back on that first Wednesday in March 1789, the ultimate "umpire" and final determiner of the result of a Presidential Election and there is absolutely nothing (absent a future Constitutional Amendment altering the manner in which we Americans utilize Presidential Electors to elect our President and Vice-President: I refer the interested reader to my Commentary entitled TO THE SPOILS GOES THE VICTOR: Proposals and Prospects for Electoral College Reform for a brief outline of the more likely alternatives) the U.S. Supreme Court- of any ideological makeup- can do about that! So, again, yes-- an Elector can vote for anyone he or she chooses- even, however theoretically, a candidate for President and Vice-President not even on the ballot; however, the real issue here is: would the ensuing Joint "Tabulation" Session of Congress count any such "faithless" Electoral Votes as "regularly given"- hence, valid- were there to be wholesale defections on the part of Presidential Electors across the country which then threatened to overturn the apparent result first seen within the first few days or weeks after a given first Tuesday after the first Monday in November of a Presidential Election year?