Supreme Court justices warn that Electoral College cases could lead to ‘chaos’

Some of the justices warned that siding with the presidential electors could lead to “chaos” in future presidential elections.  

Justices Samuel Alito and Brett Kavanaugh both pressed Lessig on the possibility that a win for his clients would unleash chaos. 

“Do you deny that that is a good possibility?” Alito asked Lessig. 

“I want to follow up on Justice Alito’s line of questioning and what I might call the avoid chaos principle of judging, which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos,” Kavanaugh said. 

“Just being realistic, judges are going to worry about chaos,” Kavanaugh said. 

Lessig responded that he likelihood of chaos was extremely small “given it requires electors who are the loyal of the loyal to band together in dozens or, you know, three dozen in the last election and flip sides.”

“We’ve also said is there’s risk on both sides,” Lessig said, citing the risk of a candidate dying after winning a popular vote but before Electoral College voters have cast their ballots.

“And if that happens, laws like Washington and Colorado ban the exercise of discretion. Then the votes from those electors could, in principle, be wasted. And that could throw the decision into the House and that could flip the result, also unexpected, also potentially creating chaos. So there’s chaos both ways,” Lessig said. 

Chief Justice John Roberts and Justice Clarence Thomas also pressed attorneys for the electors on whether their view gave their clients too much free rein.

Thomas suggested an elector could vote for Frodo Baggins, a character in “The Lord of the Rings.” Roberts questioned whether an elector could cast their ballot for a giraffe. 

Harrow said both those possibilities were off the table — electors would have to vote for a person. But he conceded, in response to a question from Roberts, that an elector could decide whom to vote for by flipping a coin. 

“That sounds pretty limitless to me,” Roberts told him. 

But the justices, including several conservatives, also expressed concerns about giving states too much authority over presidential electors. 

“We have to interpret the Constitution to mean what it means regardless of the consequences,” Alito said at one point. 

Kavanaugh asked Weiser why the framers of the Constitution would go through the trouble of establishing an Electoral College if voters in it ultimately lacked discretion.

“What is the purpose of having electors?” he asked. 

Justice Elena Kagan, who appeared to favor the arguments made by the states, asked Harrow what she should do if “I read the Constitution and I find that it just doesn’t say anything about this subject.” 

Harrow responded that Kagan should then look to the original understanding of the Constitution.

“I would think that pretty quickly it slipped even if you’re right,” Kagan responded, suggesting that even if the Electoral College was originally seen as having a say in elections, in practice it soon became a formality. “I would think that the history, both at the time and since would cut against you. No?”

Harrow responded that it did not, arguing that 2016 was the first time in U.S. history that an elector “actually presented a vote and attempted to vote and place it in the ballot box and that was rejected.”

Article source: https://www.cnbc.com/2020/05/13/supreme-court-justices-hear-key-electoral-college-cases.html