10/15/2012 03:09 pm ET Updated Dec 15, 2012

Our Electoral College System Is Weird -- And Not in a Good Way

This story first appeared on MinnPost, a nonprofit news site for and about Minnesota. You can read the whole series here.

As you may have noticed, it's a presidential election year.

We're already long-since far enough along that the Electoral College geeks (among whom I number myself) are busily publishing maps showing which are the "key," "swing," "battleground," "purple" states which will determine the outcome of the presidential election, and which are receiving and will continue even more so to receive vastly disproportionate shares of advertising, candidate visits and other forms of attention from the campaigns.

Is this a good thing?

States come and go from the map, from month to month and from cycle to cycle. Minnesota seldom makes an appearance. But two states -- Ohio and Florida -- have consistently been on the battleground state A-list for the past six presidential cycles going back 24 years.

If you listen to enough political chat shows, you will soon hear one pundit or another flog a favorite PunditFact: No Republican has ever been elected president without carrying Ohio. (This is true, but not quite as powerful as it first sounds. Ohio used to be more a red-leaning state. Four Republican candidates won Ohio without winning the presidency. Think about it. It's unlikely that any Democrat can win the White House without winning Minnesota. But that doesn't make Minnesota a key swing state.)

Still, over recent history and as far ahead as one can reasonably see, any candidate who carries Ohio and Florida will become president. If the campaigns split those two states, then a second list of about eight states come into play.

Is this a good thing? That voters in two -- or maybe 10 -- states are the only ones that matter and the rest of us are chopped liver? I can't imagine a good argument for why that it is a good thing.

Anyway, these are just reminders of something you learned in roughly the fourth grade. Our presidential elections are not national elections. They are 50 (actually 56; I'll explain in a minute) separate elections for the electors who will actually vote for the presidential candidates.

The Electoral College system, as amended, is a sort of messed up accidental gift from the Framers of the Constitution. (The Constitution, by the way, doesn't mention the words "electoral" or "college." It uses the term "elector" to refer both to the most average voters who get to vote in election for the House of Representatives, and then uses it again to refer to the very special small number of voters whose votes count directly in choosing a president, but who have never really played the role the Framers intended for them. )

The Electoral College system distorts every presidential campaign in a variety of ways and holds at least the potential (it's more than potential, it has happened several times) to lead to a result that undermines the democratic legitimacy of the election.

Having fallen out of love with the Electoral College system sometime since the fourth grade, I should concede that it's not the biggest structural problem with the U.S. system. And some aspects of it are not as deeply embedded in the Constitution as you may think.

Almost impossible to change

Like other elements of the U.S. system discussed in this occasional series, you can understand the Electoral College system as something that is rooted in the Constitution. And those roots are almost impossible to change because the Constitution is so hard to amend.

But many aspects of the Electoral College system as we practice are not mandated by the Constitution. Rather, they are created by mere statutes. Those structural factors, plus those statutes and or formal rules, combined with powerful norms of U.S. political culture, constitute the actual system. If we want to understand the things that have become dysfunctional in our system, we have to look at all three levels.

Here's an example that will seem ridiculous: The Constitution does not require a popular vote in connection with the presidential election.

The Framers put into the Constitution a formula for awarding electoral votes to the states (and, by the way, that formula violates the otherwise sacred principle of one-person, one-vote). Then they wrote (Article 2; Sec. 2) that: "Each State shall appoint, in such Manner as the Legislature thereof may direct" that number of electors. For Constitutional purposes, the electors are "appointed" by each state Legislature, by whatever means each Legislature chooses. The Constitution doesn't say that the state has to hold an election.

Of course, there's a pretty powerful norm that requires each state to allow the people to vote, and they all do, by state law, although there is plenty of variation between one state and another over how the votes are conducted. (For example, states, like Minnesota, that have same-day registration, have more voter participation than those that don't.)

But, before that norm of popular elections for president was so powerfully established, not all states held a popular vote. Here's a weird fact: South Carolina -- which is after all one of the original 13 states -- never held a popular vote for president until 1868 (that was the 21st presidential election cycle). Before 1868, the South Carolina Legislature chose the electors directly, without input from even the white, male freemen who could vote at the time in other elections.

The Constitution has not been changed on this point. But, as we currently understand them, the political norms would make it unthinkable for a state to decide to appoint its electors without benefit of a popular vote. Not unconstitutional. Just unthinkable. That's how norms work.

Here's a less ridiculous example of how states could mess around with the Electoral College system without violating the Constitution. Many Americans probably assume that the "winner-take-all" practice of electoral votes, whereby the ticket that carries the popular vote in a state gets all of the electoral votes of that state, is embedded in the Constitution. But the attentive among you know this is not the case. States have the constitutional prerogative to divvy up their electoral votes however they like.

In fact, two states at present -- Nebraska and Maine -- do not have a winner-take-all rule. In those two states, the presidential ticket that carries each congressional district gets one electoral vote, and the overall statewide winner gets the two bonus electoral votes representing the two Senate seats. (In 2008, because of this wrinkle, Nebraska's electoral votes were split -- four for John McCain, who carried the majority in the state, and one for Barack Obama ,who carried the bluish congressional district that includes Omaha.)

That's how you get 56 separate electoral vote elections. One for each of the 50 states, plus one for each of the three Nebraska districts, plus two for each of Maine's districts -- -plus a 56th election for the three electoral votes allotted to Washington, D.C., since the ratification of the 23rd Amendment in 1961 gave the nation's capitol a say in presidential elections.

Winner take all

If we did nothing more than to abandon the fairly ridiculous state-by-state winner-take-all system of electoral votes, a couple of the silliest aspects of the Electoral College system would go away, starting with the dominance of the "swing states." The likelihood of a popular vote loser winning the presidency might decline a little. And Ohio and Florida would no longer rule the world. But then, why should Ohio and Florida agree to that, since it would cost them much of the special attention they get every quadrennium? Under the Constitution, Ohio and Florida get to decide that for themselves.

But it could get weirder if some big states adopted the Maine-Nebraska practice but others stuck with winner-take-all. Why would they do that? Well, seeking partisan political advantage would be one reason.

You might have missed it, but Pennsylvania had a big fight last year over changing from winner-take-all to the congressional-district-by-district method of awarding electoral votes. Democrats opposed it fairly unanimously, but most Republicans favored it. Why? Pennsylvania has given its electoral votes to the Dem nominees in the last five elections in a row. It's considered at least a blue-leaning state for 2012, which means the Obama ticket stands likely to get all 20 electoral votes. But, because of the way the lines are drawn and how well Republicans did in the 2010 election, 12 out of 19 of its House seats are currently held by Republicans. Under the district-by-district allotment system, the Mitt Romney ticket might get half or more of Pennsylvania's electoral votes. 

Clear and potentially game-changing electoral-vote advantages could be gained by one party or the other by changing particular states away from winner-take-all.

In general, such a nakedly partisan manipulation of the system has been deemed too ugly and aggressive. That may be one reason the proposed change failed in Pennsylvania, despite strong support by the current Republican governor. But the norms they are a-changing. The state laws could be changing and the basic constitutional structure is just sitting there, waiting to be manipulated.

The Electoral College system is pretty weird. No other country has anything like it (and bear in mind, every country with a written constitution has had the benefit of the U.S. precedent when they designed their own system). And if we were starting over inventing U.S. democracy, I very much doubt that the jury-rigged Electoral Vote system would be the winning suggestion.

Furthermore, for all the hoorah given to the "original intent" of the "founding generation" behind the various provisions of the Constitution, the Electoral College system as practiced today has virtually nothing to do with the Framers' intentions or expectations or vision of how it would work.

That's a tale full of history going back to the Constitutional Convention, which I'd best leave for a subsequent installment of this series. In fact, I will.