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05/23/2020

Josh Blackman and Seth Barrett Tillman on Faithless Electors
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: What are Presidential Electors?  From the introduction:

Last week, we posed three questions concerning the characterization of presidential electors. Are they "subordinate state officers"? Do they perform a "federal function"? Do they hold a "Public Trust under the United States"? In this post we will answer each of these three questions. 

And as to the first:

First, electors cannot be "state officers," of any kind. These positions were created by the Constitution. In light of U.S. Term Limits v. Thornton (1995), the power to regulate electors "is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States . . . because that Amendment could only 'reserve' that which existed before." The position of federal elector for President and Vice President was created by the Constitution of 1788. 

We do not take a position on the question presented in Thornton: whether states have the power to enact ballot access laws that, as a practical matter, impose additional substantive qualifications on members of Congress. Rather, our analysis turns solely on the issue of whether the states have the authority to constrain the discretion of federal presidential electors when casting their ballot for president and vice president. We think this issue is akin to whether states have the authority to constrain the discretion of Senators, for example. Prior to the Seventeenth Amendment, state legislatures chose these federal officials; no one would have contended that the states could control the discretion of Senators as "subordinate" state officials.

Agreed (see here).  But their reasoning then runs in a different direction from mine.