Litigation involves US presidential election system that requires electoral votes instead of a national popular vote.

Justices on the United States Supreme Court on Wednesday grilled lawyers advocating that “electors” in the complex Electoral College system that decides the winner of US presidential elections are free to disregard laws directing them to back the candidate who prevails in their state’s popular vote.

If enough electors do so, it could upend an election, or, as some of the justices said, cause “chaos”.

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The justices heard arguments in two closely watched cases – one from Colorado and one from Washington state – less than six months before the November 3 election in which presumptive Democratic nominee Joe Biden will challenge Republican President Donald Trump.

The litigation involves the presidential election system set out in the US Constitution which dictates that the winner is determined not by amassing a majority in the national popular vote but by securing a majority of electoral votes allotted to the 50 US states and the District of Columbia.

The cases involve so-called “faithless electors” who did not vote for Democratic candidate Hillary Clinton in the 2016 Electoral College even though she won the popular vote in their states.

Colorado and Washington state are among the 48 states – only Maine and Nebraska excepted – with winner-takes-all systems awarding all electors to the candidate who wins the state’s popular vote. The justices must decide if states can penalise faithless electors with actions such as monetary fines or removal from the role.

Thirty-two states and the District of Columbia have laws intended to control how electors vote. Only a handful enforce them with penalties.

Conservative Justice Samuel Alito wondered whether giving electors free rein “would lead to chaos” in instances in which an election is very close and “the rational response of the losing political party … would be to launch a massive campaign to try to influence electors”.

Conservative Justice Brett Kavanaugh asked whether the court should embrace the “avoid-chaos principle of judging, which suggests that if it’s a close call or a tie-breaker, we shouldn’t facilitate or create chaos”.

Lawyer Lawrence Lessig, representing the Washington state electors, conceded that was a possibility.

The Electoral College vote, held weeks after the general election, is often overlooked as a mere formality in which the electors, typically party loyalists, actually vote for the winner of their state’s popular vote.

But in 2016, 10 of the 538 electors voted for someone else. While that number of faithless electors did not change the election’s outcome, it would have in five of the 58 previous US presidential elections.

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