The Elector Incompatibility Clause

. . . but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

—Josh Blackman & Seth Barrett Tillman

Introduction

In our constitutional system, members of the Electoral College, known as presidential electors, cast votes for the President on behalf of each state and the District of Columbia. Currently, the fifty states and the District of Columbia appoint presidential electors. In each of these fifty-one jurisdictions, the prevailing slate of electors meets and votes separately from the electors of the other fifty jurisdictions, but each slate meets on the same day. Chiafalo v. Washington (2020) recognized that the states can decide how presidential electors are appointed.¹ Those holding positions in state governments can serve as presidential electors, but the Constitution prohibits those holding certain positions in the federal government from being appointed presidential electors.

The Constitution expressly bars U.S. Senators, Representatives, and those who hold an “Office of Trust or Profit under the United States” from being appointed as presidential electors. The U.S. Supreme Court has never opined on the precise meaning of “Office of Trust or Profit under the United States” in the Elector Incompatibility Clause. In the view of the authors of this essay, the phrase “Office of Trust or Profit under the United States” extends to appointed officers in the executive, judicial, and legislative branches, and those holding such positions are barred from being appointed as presidential electors.² We further contend that this clause does not expressly bar the President and Vice President, who hold elected positions, from serving as electors.

The Constitutional Convention

During the Constitutional Convention, the structure of the federal executive branch and how the chief magistrate would be elected or appointed was a subject of significant and lengthy debate and division. However, the Elector Incompatibility Clause was introduced fairly late in that process. On September 6, 1787, Rufus King and Elbridge Gerry of Massachusetts proposed language specifying that “no Person shall be appointed an Elector who is a Member of the Legislature of the United States or who holds any office of profit or trust under the United States.”³ This text was approved without any recorded debate.⁴

This provision was referred to the Committee of Style,⁵ which reworded the text to read that “no senator or representative shall be appointed an elector, nor any person holding an office of trust or profit under the United States.”⁶ The Committee changed “Member of the Legislature” to “senator or representative” and flipped the ordering from “profit or trust” to “trust or profit.” On September 15, the phrase “shall be appointed an elector” was moved to “the end of the clause.”⁷ The final, adopted text provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”⁸

The Ratification Debates

Alexander Hamilton discussed the Elector Incompatibility Clause in Federalist No. 68. He wrote that the Constitution did not vest the choice of President “on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes.” Hamilton explained that the Elector Incompatibility Clause was designed to preserve the electors’ decisional independence. In other words, they could cast their votes without fear of federal officeholders controlling their decision.

Caroliniensis, a Federalist from South Carolina, expressed a similar sentiment. He wrote that “[t]he president cannot bribe or influence his electors, because it is impossible for him to know them.” Caroliniensis added that “all popular tumult is effectually guarded against, by the election’s being held in thirteen different states at the same time. . . .”⁹

Representatives and Senators Cannot Serve as Electors

U.S. Senators and Representatives are expressly precluded from serving as electors. During the joint session of Congress, the electors’ votes are counted “in the Presence of the Senate and House of Representatives.”¹⁰ If the Electoral College fails to choose a President and/or Vice President—for example, if the vote is a tie—the selection of a President falls to the House, and the choice of Vice President falls to the Senate.¹¹ Moreover, the two houses of Congress have (or at least have exercised) an implied power to resolve conflicts over disputed electoral votes.

For these reasons, it makes sense to prohibit members of Congress from serving as electors, as they would need to sit in judgment of electoral votes that were already cast. It would be problematic for a member of Congress to decide the validity of a vote that he personally cast.

This separation between presidential electors and members of Congress avoids some potential conflicts of interest. We say some conflicts because a sitting member of Congress can be a presidential candidate, and if the two houses of Congress need to adjudicate an electoral dispute, there is no constitutional provision that expressly bars such a member from voting for himself.

The text of the Elector Incompatibility Clause suggests that Senators and Representatives do not hold an “office . . . under the United States.” Why? If members of Congress held an “office . . . under the United States,” the express enumeration of Senators and Representatives would be redundant. The Framers chose to list Senators and Representatives separately, suggesting that these elected positions do not hold an “Office . . . under the United States.”¹²

“Office[s] of Trust or Profit Under the United States”

In the Elector Incompatibility Clause, the words “Trust” and “Profit” describe different types of “Office[s] . . . under the United States.” An office of trust under the United States has regular, non-delegable duties that require the exercise of discretion.¹³ An office of profit under the United States has a regular salary or other authorized emoluments, such as fees or commissions.¹⁴ Offices of profit and offices of trust may overlap.¹⁵ Indeed, courts in Commonwealth countries routinely decide how to characterize a given office. For example, Hodel v. Cruckshank (1889) turned on whether a position was in fact an office of profit under the Crown.¹⁶

Can Holders of Appointed Executive and Judicial Branch Positions Serve as Electors?

The Supreme Court has never squarely addressed whether holders of appointed positions in the executive and judicial branches can serve as presidential electors. In our view, they cannot. Specifically, we believe that those who hold appointed positions in the executive and judicial branches are “officers of the United States.”¹⁷ These positions are also “office[s] . . . under the United States.” This exclusion makes good sense.

As noted, Hamilton and other Federalists recognized that this provision was drafted to protect presidential electors’ decisional independence. However, the Elector Incompatibility Clause does not forbid all appointments where the appointee is dependent on others. An elector can be an employee of a private commercial enterprise and dependent on the entity’s president or governing board for his livelihood. A state executive officer also can be an elector—even if the officer is dependent on higher state authority such as a governor. But an elector who is dependent on a federal elected official would amount to the federal government electing itself. This type of dependency is uniquely dangerous.

The Secretary of State, for example, who serves at the pleasure of the President, would lack decisional independence. In Federalist No. 68, Hamilton observed that “all those who from [their] situation might be suspected of too great devotion to the President in office” would be “excluded from eligibility to this trust.” Statutory officers appointed by the President are excluded from serving as presidential electors precisely because the President is in a position to remove them—or appoint or promote them to additional or higher offices. Holders of these positions, in Hamilton’s words, could not enter upon the task free from any “sinister bias.” Their livelihood would depend on the President’s continuing support. Statutory officers could be persuaded, directed, or even ordered to cast an electoral vote for the sitting President or his favored successor.

Article III judges are also prohibited from serving as electors. Such judges cannot be removed by the President, but they can be appointed by the President to higher judicial posts or to lucrative posts in the executive branch, which might be held concurrently with their judicial post. Excluding such judges from serving in the Electoral College helps to preserve the electors’ decisional independence. Moreover, it is eminently reasonable to keep federal judges out of the non-judicial aspects of the electoral process. Federal judges have been called upon to decide electoral disputes, but it would be extremely problematic for a judge to serve in the Electoral College and then have to resolve cases that implicate the very electoral vote he cast or the votes cast by other electors for candidates that the judge voted for or against.

Can Holders of Appointed Legislative Branch Positions Serve as Electors?

The Elector Incompatibility Clause provides that a “[p]erson holding an Office of Trust or Profit under the United States” cannot be “appointed [as] an Elector.” In our view, holders of appointed positions in the legislative branch—for example, the Secretary of the Senate, Clerk of the House, and parliamentarian of each house—hold “office[s] . . . under the United States.” Therefore, they cannot be appointed as presidential electors.

It would be problematic if members of Congress cannot serve as electors but the subordinate officers that those members choose could serve as electors. All such congressional staff would lack decisional independence. They can be dominated and removed by the presiding member of their chamber if the presiding member has a removal power. Likewise, a factional legislative majority in each chamber could certainly persuade, direct, or even order subordinate appointed legislative officers, who are always subject to the chamber’s omnipresent removal power, to vote as directed. Again, such circumstances would amount to the federal government electing itself, and this type of dependency is uniquely dangerous.

The Elector Incompatibility Clause forbids members of Congress from participating in the Electoral College process. Allowing their dependent appointees to serve in the Electoral College would create a glaring loophole. It is far worse to have the Clerk of the House serve in the Electoral College than for the Speaker to serve in the Electoral College. The Speaker is arguably independent, subject to election by the voters and by the House, and faces substantial transparency expectations in regard to his official conduct. Not so for the Clerk, who serves at the pleasure of the House.

The Elector Incompatibility Clause was designed to preserve decisional independence against control by federal officials. Chiafalo v. Washington (2020) is consistent with this principle.¹⁸ Chiafalo held that, in certain circumstances, state governments can instruct electors on how to vote.¹⁹ Congress, however, has no power to control how electors vote. Congress, however, has historically claimed that it has the power to count or not count purportedly irregular or otherwise unlawful electoral votes.

Can the President and Vice President Serve as Presidential Electors?

In our view, while appointed officers—that is, those holding “Office[s] . . . under the United States”—in all three branches cannot serve as electors, the President and Vice President do not hold an “office . . . under the United States.”²⁰ Therefore, each could serve as a presidential elector, and potentially, each could vote for himself or for his favored successor. This result may seem counterintuitive and perhaps even unseemly, but it does not trigger the concerns that animated the Elector Incompatibility Clause. As Hamilton explained in Federalist No. 68, the President as an elector cannot “be tampered with beforehand to prostitute [his] vote[].”

If the President serves as an elector, he is not at risk of being pressured or coerced to change his vote by any superior; in fact, it is to be expected that the President, if also an active candidate, would vote for himself. In every election, we see the spectacle of all politicians—including the President and other presidential candidates—voting for themselves in the general election. There is no doubt how those votes will be cast. Relatedly, in 2016, former President Bill Clinton was selected as an elector in New York for his wife, presidential candidate Secretary Hillary Clinton.²¹ There was no doubt about how he would vote.

We believe that the sitting Vice President can also serve as a presidential elector even when he is on the ballot for President. The Vice President is not subject to presidential appointment, removal, or supervision in the ordinary course of his duties. A President has substantial control over Cabinet positions, but in his capacity as President, he enjoys few legal controls over the Vice President. Such self-interested candidates might very well vote for themselves for opportunistic reasons, but no third parties would be pulling their strings.

What Is an Elector?

The Presidential Electors Clause provides that “[e]ach 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[.]”²² In our view, presidential electors are not “Officers of the United States” and do not hold an “Office . . . under the United States.”²³ Rather, we contend that presidential electors hold a federal position: a “public Trust under the United States” as that phrase is used in the Religious Test Clause. That provision provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”²⁴ For example, in Federalist No. 68, Hamilton refers to electors as holding a “trust” as opposed to using the language of “office” and “officer.”

Open Questions

• What happens if a person holding an incompatible position is appointed as an elector? Is the appointment void, or does the appointment work an automatic loss of the incompatible position? Would a federal court have the power to remove the elector before he casts his vote as a presidential elector? Could the joint session of Congress refuse to count that elector’s vote? What if the elector’s vote could not be identified or disaggregated from the other electoral votes cast by that state’s slate of electors?
• If a member of the House (or Senate) attempted to resign his seat in order to cast a vote as a presidential elector, could his efforts to resign and vote be frustrated if the House (or Senate) actively refused to accept his resignation?²⁵ If a covered federal officer attempted to resign his post in order to cast a vote as a presidential elector, could his efforts to resign and vote be frustrated if the President (or other superior officer) refused to accept his resignation?
• If a person holds an “office . . . under the United States” position as an officer de facto but not de jure, is he subject to the Elector Incompatibility Clause? If a person is lawfully appointed by higher authority to an “office . . . under the United States” position but the recipient has not yet accepted the post, does he “hold[]” the position for purposes of the Elector Incompatibility Clause?

1. 591 U.S. 578 (2020). ↩︎
2. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses, 63 S. Tex. L. Rev. 237, 251 (2024). ↩︎
3. 2 Farrand’s 517, 521. ↩︎
4. Id. ↩︎
5. Id. at 572–73. ↩︎
6. Id. at 597. ↩︎
7. Id. at 621. ↩︎
8. Id. at 658. ↩︎
9. Caroliniensis, Charleston City Gazette, April 1788, in 27 DHRC 238. ↩︎
10. Art. II, § 1, cl. 3; Amend. XII, cl. 2. ↩︎
11. Amend. XII. ↩︎
12. Asher Steinberg, The Textual Argument That the President Does Not Hold an “Office Under the United States,” The Narrowest Grounds (Sept. 21, 2017), https://perma.cc/Y7DK-53S2. ↩︎
13. Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 16, at 9 (Chicago, Callaghan & Co. 1890), https://perma.cc/B2L5-W3PJ. ↩︎
14. Id. § 13, at 8. ↩︎
15. Doty v. State, 6 Blackf. 529, 530 (Ind. 1843) (per curiam). ↩︎
16. Hodel v. Cruckshank (1889) 3 Queensland LJ. 141, 142 (Austl.), https://perma.cc/VZ33-SYVJ. ↩︎
17. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349 (2023). ↩︎
18. 591 U.S. 578 (2020). ↩︎
19. Id. at 595–97. ↩︎
20. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part IV: The “Office . . . under the United States” Drafting Convention, 62 S. Tex. L. Rev. 455 (2023). ↩︎
21. Bill Mahoney, Electoral Delegate Bill Clinton: “Never Cast a Vote I Was Prouder of,” Politico (Dec. 19, 2016), https://perma.cc/XMN3-BJRR. ↩︎
22. Art. II, § 1, cl. 2. ↩︎
23. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 394–401 (2022). ↩︎
24. Art. VI, cl. 3. ↩︎
25. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177 (2008). ↩︎