                         April 28, 1969


Senator Jack Strong                    Opinion No. M-384
Chairman
Senate Committee on                    Re:   Constitutlonallty of S.B.
  Privileges and Elections                   No. 107 relating to the
Capitol Building                             election of presidential
Austin, Texas                                electors and amending
                                             sections under the Election
Dear Senator   Strong:                       Code.
          You have requested our opinion concerning the con-
stltutlonallts of Senate Bill No. 107. The cactlon to the
bill provides-that it is An Act
          "relating to the election of presidential
     electors from congressional districts and from
     the state at large, and binding all presidential
     electors to vote according to the plurality which
     elected them; amending the Texas Election Code
     as follows: amending section 170a, as amended
     (Article ll.Ola, Vernon's Texas Election Code);
     adding section 171a; amending section 172
      Article 11.03 ; amending section 173, as amended
      Article 11.04 ; amending section 114 (Article
     11.05); and declaring an emergency.
For brevity's sake, we will summarize the sections.
          Section 1: Amends section 170a of Texas Election
Code by adding section 3 , which states that a political party's
presidential electors shall be nominated for each congressional
district and as many electors at large as there are Senators
and Congressmen at large.
          Section 2: Adds section 171a to Texas Election Code
which states that the presidential elector candidates who
receive the plurality of votes in each district or at large
shall represent that district or the state at large at the
state meeting of presidential electors.

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Senator Jack Strong, page 2 (M-384)


          Section 3: Amends Section 172, Texas Election Code,
to state that the canvass of the votes for candidates for
President and Vice-President and their returns shall be the
same as those for the candidates for district and at large
electors of the same party, rather than for the same party
generally.
          Section 4: Amends Section 173 to include district
and at large presidential electors In the certification of
candidates, rather than electors In general.
          Section 5: Amends Section 174 of Texas Election
Code to state that district and at-large presidential electors
shall cast their votes in accordance with the plurality vote
for President and Vice-President In the district and state
at large, respectively, which they represent and no other
way. Also, this section provides the means by which a
person is appointed to replace an elected presidential
elector who by death, disabling cause, or disqualification
Is unable to attend the meeting of electors. Further, It
states that any person 80 appointed must vote for the same
candidate as the person he Is substituting for was bound
to vote for.
          Article II, Section 1, United States Constitution,
provides as follows:
         "Each State shall appoint, in such manner
    as the Legislature thereof may direct, a number
    of Electors, equal to the whole number of Sen-
    ators and Representatives to which the State may
    be entitled In the Congress; but no Senator or
    Representative or person holding an office of
    trust or profit under the United States, shall
    be appointed an Elector."
          Congress Is empowered to determine the time of
choosing the electors and the day on which they are to give
their votes, which Is required on the same day throughout the
United States. Otherwise, the power and jurisdiction of the
state is exclusive, with the exception of the provisions as
to the number of electors and the ineligibility of certain
persons. McPherson v. Blacker, 146 U.S. 1 (1892). The Supreme
Court stated at page 27 of that opinion:
          "The State also acts lndlvldually through
     its electoral college, although by reason of

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Senator Jack Strong, page 3   (M-384)


     the power of its legislature over the manner
     of appointment, the vote of its electors may
     be divided.
          "The Constitution does not provide that
     the appointment of electors shall be by popular
     vote, nor that the electors shall be voted for
     upon a general ticket, nor that the majority of
     those who exercise the elective franchise can
     alone choose the electors. It recognizes that
     the',peopleact through their representatives In
     the legislature, and leaves It to the legisla-
     ture excluslvela to define the method of effect-
     ing the object.
          States have considerable freedom in the selection of
presidential electors. Qray v. State of Mississlppl, 233 F.Supp.
139 (N.D. Miss. 1964). Congress may not Interfere with the
method designated by the State Legislature for appointment of
presidential electors. Commonwealth ex rel Dummlt v. O'Connell,
298 Ky. 44, 181 S.W.2d 691 (1944)   Williams v. Rhodes, 89 S .Ct .
5 (1968). The Constitution leaves it to the state legislature
exclusively to define the method of effecting the vote of elect-
ors. Cf. McPherson ,,v.Blacker, 146 U.S. 1, 27 (1892); In re
Oreen, 134~b.s'.Tf~((1890).
            The question under consideration was discussed by the
Su reme Court of the United States In Ra f;ljIow;;air,343 U.S.
21 fl (1952).  The Supreme Court held as
          "The applicable constitutional provlsfons
     on their face furnish no definite answer to the
     query whether a state may permit a party to re-
     quire party regularity from its primary candidates
     for national electors. 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 re-
     ceives Its authority from the Federal Constltu-
     tion. Neither the language of Art, II, Eli,nor
     that of the Twelfth Amendment forbids a party
     to require from candidates in its primary a
     pledge of political conformity with the aims
     of the party. Unless such a requirement is im-
     plicit, certainly neither provision of the

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Senator Jack Strong, page 4 (M-384)


     Constitutlon requires a state political
     party, affiliated with a national party
     through acceptance of the national call
     to send state delegates to the national
     convention, to accept persons as candidates
     who refuse to agree to abide by the party's
    ~requirement. (343 U.S. 224)
          II
           . . .
          ,I
           . . .A state's or a political party's
     exclusion of candidates from a party primary
     because they will not pledge to support the
     party's nominees Is a method of securing
     party candidates In the general election,
     pledged to the philosophy and leadership
     of that party. It Is an exercise of the
     state's right to appoint electors in such
    manner, subject to possible constitutional
     llmltations, as It may choose. . . . (343
    U.S. 227)
          I,
           . . .
          "We conclude that the Twelfth Amend-
     ment does not bar a political party from
     requiring the pledge to support the nominees
     of the National Convention. Where a state
     authorizesa party to choose Its nominees
     for elector In a party primary and to fix
     the qualifications for the candidates, we
     see no federal constitutional objection to
     the requirement of this pledge. (343 U.S. 231)
          I,               1,
               .   .   .



          Although the Alabama Supreme Court had earlier ruled
unconstitutional a state statute orovldina that the electors
shall cast their ballot for the nominee o? the National Conven-
tion of the party by which they were elected (Opinion of
                                                      __ The
                                                          -..-
Justices, 34~So.2d 598 (1948)); it is doubted~whether the
Suoreme Court would so hold In view of Its 1952 decision in
Ray v. Blair, supra.
          Other state cases supporting the constitutionality
of the proposed legislation in question here are Thomas v.
Cohen, 262 N.Y.S. 320 (1933); Markham v. Bennlon, 25 P 2d
%?953);     Sprechels v. Graham, 194 Cal. 51o , 228 P? 1040
(1923).
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Senator Jack Strong, page 5 (M-384)


          The Texas Constitution contains no provision relative
to presidential electors and In our opinion, If the Legislature
enacts Senate Bill No, 107 into law, it will be constitutional.
                      SUMMARY
         Senate Bill No. 107 is not unconstitutional
    In providing for the election of presidential
    electors by congressional districts as well as
    from the state at large, and In providing that
    such electors must cast their ballots in accord-
    ance with the plurality vote within such:
    congressional districts or the state at large,
    as the case may be.




Prepared by Jack Sparks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Malcolm Quick
Roy Mouer
Robert Darden
Sally Phillips
W. V. GEPPERT
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant




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