Could 'Rogue Electors' Tilt the Balance of the US Election?

The court’s spirited – and lengthy – argument made two things clear. First, that constitutional text, history and structure manifestly support the proposition that electors were meant to vote freely. When the framers of the constitution weighed how the nation’s chief executive should be chosen, they worried that ordinary voters in a national election would prove incapable of making an informed choice about the candidates. Elbridge Gerry, who decades later as governor of Massachusetts would carve a congressional district into the shape of a salamander and so bequeath us the term “gerrymander”, warned of the “ignorance of the people”, fearing they would be “too little informed of personal characteristics in larger districts and liable of deceptions”.

So the framers settled on an electoral college, to be composed of persons of higher political standing, capable of exercising informed choice and reasoned deliberation. In Federalist No 68, Alexander Hamilton argued that entrusting the task to such men “affords a moral certainty, that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”.

That, at least, was the idea. But, as this week’s oral argument made clear, practice quickly eclipsed theory. It only took a couple of decades for our modern system to emerge – in which electors ceremonially vote for their state’s popular vote winner. As early as 1816, Rufus King, who had been a delegate to the constitutional convention, ruefully observed that electors now functioned as “mere … toys that nod when … set in motion”.

Today, most people would agree that is how electors should act – which is why 32 states and the District of Columbia now have laws that aim to make sure that electors do not vote “freely” as they were originally intended. The oral argument suggests the court is not about to upset those laws. Even those justices – such as Clarence Thomas and Samuel Alito – most faithful to hewing to the constitution’s original meaning appeared chary about upholding the right of electors to go rogue. As Justice Brett Kavanaugh observed, the court likes to adhere to an “‘avoid-chaos’ principle of judging”. And chaos could well result in a close election in which a handful of electors choose to go their own way.