Elector discretion

[Frank Cross]

I think that elector discretion is not only originalist, it is obviously
wise.  Nor do I think that there is a settled expectation that electors
will vote with their state's majority in all circumstances.  I think the
settled expectation is that (a) in typical circumstances, (b) all but one
or two electors will vote with the state's majority.  That settled
expectation doesn't answer the problems today, which are atypical
circumstances in which one or two electors could swing the election.  We
clearly have no precedential "trade usage" that could be applied to the
present circumstances.

Moreover, we might want to preserve some elector discretion for a variety
of reasons.  Some fact might come to light in the interim period between
the election and the electoral college vote that would create a consensus
among the people (candidate celebrates by having sex with intern?).
Suppose that George Bush suffered a tragic accident and died next week.
Wouldn't it make sense then for the electors to pick Gore, the winner of
the popular vote?

Incidentally, while I'm not on the right, I don't particularly consider
myself on the left either (I picture myself somewhere up in the air).


Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712