Whoops!

Rick Hasen (Election Law blog) notes the following:

Electoral-Vote.com notes the following:

Stupidity news: One of Kerry’s electors in Ohio, Rep. Sherrod Brown, is a congressman. Unfortunately, the constitution forbids federal office holders from being electors. It is possible that if Kerry wins Ohio, Brown’s right to cast an electoral vote will be challenged in court. Whoever picked a constitutionally ineligible elector needs to get his or her mental software ungraded to the latest release.

Brown is indeed listed as a presidential elector: see here on page 11.

I assume that this would be an issue to be taken up, if necessary, in Congress when it counts electoral votes. . . .

UPDATE: A reader writes: “My understanding (from Rep. Brown’s office) is that Rep. Brown has resigned and that the chairman of the Ohio Democratic Party will be able to appoint another elector.” I’ll let you know if I receive confirmation of this report.

If you wonder how clear the prohibition is on Representatives being electors, check out article II, section 1, clause 2 of the Constitution:

[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

UPDATE: Pepperdine lawprof Mark Scarberry writes (some paragraph breaks added):

3 U.S.C. section 4 provides: “Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote.” I suppose Rep. Brown could resign (or be removed?) [FURTHER UPDATE: it turns out that he has resigned], and then Ohio could fill the vacancy, if Ohio has provided for filling vacancies in its election laws.
A very quick Westlaw search suggests that Ohio has so provided, in Ohio Revised Code section 3505.39. That section treats an elector’s failure to show up in the state capitol to vote as creating a vacancy. The electors who do show up can choose the replacement elector, who must be of the same party as the elector who did not show up. Here is the statutory language . . .:
“. . . [Each] elector shall give notice to the secretary of state before nine a.m. of that day whether or not he will be present at the appointed hour ready to perform his duties as a presidential elector. If at twelve noon at the place selected by the secretary of state presidential electors equal in number to the whole number of senators and representatives to which the state may at the time be entitled in the congress of the United States, are not present, the presidential electors present shall immediately proceed, in the presence of the governor and secretary of state, to appoint by ballot such number of persons to serve as presidential electors so that the number of duly elected presidential electors present at such time and place plus the presidential electors so appointed shall be equal in number to the whole number of senators and representatives to which the state is at that time entitled in the congress of the United States; provided, that each such appointment shall be made by a separate ballot, and that all appointments to fill vacancies existing because duly elected presidential electors are not present shall be made before other appointments are made, and that in making each such appointment the person appointed shall be of the same political party as the duly elected presidential elector whose absence requires such appointment to be made. In case of a tie vote the governor shall determine the results by lot.
“The electors making such appointments shall certify forthwith to the secretary of state the names of the persons so appointed and the secretary of state shall immediately issue to such appointees certificates of their appointment and notify them thereof. All of the state’s presidential electors, both those duly elected who are then present and those appointed as herein provided, shall then meet and organize by electing one of their number as chairman and by designating the secretary of state as ex officio secretary and shall then and there discharge all of the duties enjoined upon presidential electors by the constitution and laws of the United States. . . .”