Would Electoral Win Without Popular Vote be Swan Song for Swing States?

Oct. 27, 2012— -- You don't have to go too far into fantasy land to envision a scenario in which President Obama loses the popular vote, but wins the electoral vote. Mitt Romney has gained ground in some national preference polls, but Obama still leads in many battleground state polls.

ABC's Matthew Dowd has been making this argument for months and he's gotten company in recent weeks. (Read Dowd's post from June.)

Others, nestled on editorial boards, and in think tanks and ivy covered colleges, have been discussing the pros and cons of our current Electoral College system for years.

Suppose for a moment that it comes to pass: Obama gets fewer votes than Romney, but is reelected. (Check out ABC's race ratings and play with the electoral map.)

The handwringing would be endless. Republicans would be outraged. Democrats, some of whom still daydream about what might have been if 2000 popular vote winner Al Gore had taken the White House, might see poetic justice.

But not so fast. There's the matter of the U.S. Constitution and the 12th Amendment, which would have to be changed. Amending the Constitution is notoriously hard, requiring that an amendment pass by a two-thirds majority in the House of Representatives, a two-thirds majority of the U.S. Senate and by three fourths of the 50 state legislatures.

Alex Keyssar, a professor of history and social policy at Harvard's Kennedy School of Government, points out that plan to throw out the electoral college has passed Congress before, most recently in 1970.

"Nixon had announced that he would sign it. There were polls that it would get through the states. But it was killed by the filibuster," Keyssar said.

He rejects the argument of national popular vote opponents who point out that the electoral college was placed into the Constitution to protect the rights of smaller states and insure that the U.S. remained a republic.

"This country may have been envisioned as a league of states, not as a nation. But we are a nation," he said.

"My own view is that a popular vote system would make the institutions in this country keep up with changes that have been going on in the social fabric of the country for 200 years," Keyssar said, pointing out that the framers also intended the electoral college and not the citizens, to debate who should be elected and select the president. State electoral votes weren't originally awarded on a winner-take-all basis either. The founders didn't originally envision a two-party system either.

"It has strayed so far from what the founders originally set up that I don't find the intention of the founders to be a reason to keep the differently functioning and deformed version that we have," said Keyssar.

There is an effort - Natonal Popular Vote- which has been ratified by eight states, to basically create a legal agreement among states to keep the electoral college, but award the votes proportionally instead of by state.

But it isn't a Constitutional amendment and there are concerns that a broad agreement by some states would violate the Constitution. The eight states that have passed the bill are far from a majority.

Read an independent report from Congress about the history of the electoral college and past reform proposals HERE.