U.S. Supreme Court FITZGERALD v. GREEN, 134 U.S. 377 (1890)

134 U.S. 377

FITZGERALD v. GREEN.

March 24, 1890

[Page 134 U.S. 377, 378]

R. A. Ayers and J. Randolph Tucker, for appellant.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

In this case, as in Loney's Case, ante, 584, (just decided,) the question presented is whether the courts of the state of Virginia

[Page 134 U.S. 377, 379]

had jurisdiction of the charge against the prisoner. But that is the only respect in which the two cases have any resemblance. By the constitution of the United States, the electors for president and vicepresident in each state are appointed by the state in such manner as its legislature may direct; their number is equal to the whole number of senators and represen tatives to which the state is entitled in congress; no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector; and the electors meet and vote within the state, and thence certify and transmit their votes to the seat of government of the United States. The only rights and duties, expressly vested by the constitution in the national government, with regard to the appointment or the votes of presidential electors, are by those provisions which authorize congress to determine the time of choosing the electors, and the day on which they shall give their votes, and which direct that the certificates of their votes shall be opened by the president of the senate in the presence of the w o houses of congress, and the votes shall then be counted. Const. art. 2, 1; Amend. art. 12. The sole function of the presidential electors is to cast, certify, and transmit the vote of the state for president and vice-president of the nation. Although the electors are appointed and act under and pursuant to the constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives in congress. Const. art. 1, 2, 3. In accord with the provisions of the constitution, congress has determined the time as of which the humber of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the states, and on which their votes shall be counted in congress; has provided for the filling by each state, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to

[Page 134 U.S. 377, 380]

the seat of the national government, and the course of proceeding in there opening and counting them. Rev. St. 131-143; Acts Feb 3, 1887, (24 St. p. 373, c. 90;) Oct. 19, 1888, (25 St. p. 613, c. 1216.) Congress has never undertaken to interfere with the manner of appointing electors, or, where (according to the now general usage) the mode of appointment prescribed by the law of the state is election by the people, to regulate the conduct of such election, or to punish any fraud in voting for electors, but has left these matters to the control of the states. Sections 5511 and 5514 of the Revised Statutes, referred to in the order of the circuit court, were, as observed by this cort in Coy's Case, 127 U.S. 731, 751, 8 S. Sup. Ct. Rep. 1263, made for the security and protection of elections held for representatives or delegates in congress, and do not impair or restrict the power of the state to punish fraudulent voting in the choice of its electors. The question whether the state has concurrent power with the United States to punish fraudulent voting for representatives in congress is not presented by the record before us. It may be that it has. Ex parte Siebold, 100 U.S. 871. But, even if the state has no such power in regard to votes for representatives in congress, it clearly has such power in regard to votes for presidential electors, unaffected by anything in the constitution and laws of the United States; and the including, in one indictment and sentence, of illegal voting, both for a representative in congress and for presidential electors, does not go to the jurisdiction of the state court, but is, at the worst, mere error, which cannot be inquired into by writ of habeas corpus. Ex parte Crouch, , 5 Sup. Ct. Rep. 96; In re Coy, 127 U.S. 756-759, 8 Sup. Ct. Rep. 1263. Judgment reversed, and case remanded for further proceedings in conformity with this opinion.