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 constltutlonallts 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 ; 

Article 11.04 

amending section 173, as amended 

; 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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r . 

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 Senators 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',people act through their representatives In 

the legislature, and leaves It to the legislature excluslvela to define the method of effecting 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 

. . 

t o the state legislature 

exclusively to define the method of effecting the vote of electors. 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 

21 fl (1952). The Supreme Court held as 

f;ljIow;;air, 343 U.S. 

"The applicable constitutional provlsfons 

on their face furnish no definite answer to the 

query whether a state may permit a party to require 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 receives Its authority from the Federal Constltution. 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 implicit, 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, 

U.S. 227) 

as It may choose. . . . (343 

I, 

. . . 

"We conclude that the Twelfth Amendment 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 Convention 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 

(1923). 

, 228 P? 1040 

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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 accordance 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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