It may be the most misunderstood institution in the country.

What is it supposed to do? Is it meeting those objectives? Should we replace it? How should we replace it?

Those questions are being asked and will continue to be asked in the coming weeks, especially if tomorrow’s election requires the judicial branch to sort it out.

To help that understanding, the Robert H. Jackson Center recently hosted a webinar with Edward Foley, the department chair in Constitutional Law at the Ohio State University who has recently written extensively on the institution.

Joe Biden

A few nuts and bolts before the highlights of that discussion though…

Electoral college votes are ascribed to states based on the size of a state’s Congressional delegation — for example, Pennsylvania has 20 electoral votes, one for each of the 18 seats in the House of Representatives and one for each of the state’s two senators.

If you’re thinking that gives an excessive strength to small states, well, we’ll get to that in a bit.

When you vote for a presidential candidate (or already if you voted early or via mail-in or absentee ballot), you’re not voting directly for the candidate — you’re voting for a slate of electors who will directly vote for the candidate.

The vast majority of states award a state’s electoral college votes to whichever candidate receives the most popular votes, which brings about the birth of swing states — stats that demographically can shift enough to support different candidates in different elections.

While many have a winner-take-all format, Foley said “states can do whatever they want.” He outlined the thre main ways individual electors are selected — by election, by Congressional District (the model in Pennsylvania) and by legislative appointment.”

So, the end goal for the president and former vice-president is to win enough states to get to 270 electoral votes, 270 being the slimmest of majorities.

The Electoral College as originally constructed, Foley explained, was “built for George Washington. What they wanted in a president was a father figure, a consensus, a choice that would rise above party.”

While the founders knew that factions would develop, they didn’t foresee the rapid development of the Federalist and Democratic-Republican parties. By the 1800 election, however, the system was broken — three candidates received electoral votes, no one received a majority and the election was kicked into the House of Representatives.

The 12th Amendment — stipulating that there would be different electoral votes for president and vice-president, changing how the votes could be cast and ratified in 1804 — was a result of that early chaos and remains the system today.

And that system, Foley said, is aimed at creating a majority winner.

“So when they rewrote the Electoral College in the 12th amendment,” he said, they “did so on the premise there is going to be two-party competition…. It wasn’t going to be consensus anymore.”

The end result of such an arrangement should be that one candidate in the two-party system always gets a majority, rather than a plurality, of the votes cast in the Electoral College.

The system provides that majority when there is “genuine two party competition and only two party competition” but starts to break down when there have been strong third party candidates, such as Ralph Nader in 2000 and Ross Perot in 1992.

So is this the best system we can have?

“I don’t think we have it,” Foley said, noting it is his belief that the national winner should be the majority winner, speaking in favor of a national popular vote.

But that doesn’t mean the Electoral College won’t work in the coming weeks.

“You can run an election under a flawed system and get a valid result (as a) result of that system.”

Looking ahead, what can be done to change it?

“It depends on how much you care about the autonomy and sovereignty” of individual states, he explained. “If you think the United States is really the United States, fundamental to national identity, (you) want to reflect that” and give the states a role in the process.

But if you think of the American people as a collective then “each American has one vote whether from Texas or Wyoming or Rhode Island, then you don’t want any kind of Electoral College. I think it’s a big philosophical question.”

It would shape how candidates campaigned, for sure.

“My instinct is that campaigns would adjust and would be creative. It would mean candidates would look for pockets of votes in ways that might surprise us initially.”

Candidates “wouldn’t be campaigning in every place to win (but) campaigning in some places to reduce their losses.”

Foley noted that following on this issue indicates a national preference for a popular vote model.

He indicated that, in the current format, smaller states have “a little bit” of a stronger role because the calculation includes a state’s senators. “But if you’re really worried about this issue, you should be worried about the U.S. Senate,” he said, where there is “no accounting for population difference in the political power of the states…”

If there is consensus to move away from the Electoral College, there are options.

In addition to a national popular vote, ranked choice voting is an option as is a two-round system that would ensure there are only two candidates on the ballot for the election that determines when Electoral College voters are selected.

Foley said the aim of his book was that it is “more important to embrace the majority rule principle and get back to that idea one way or another” under which there are a “whole umbrella of options.”

So how does he think Tuesday will look?

“We should be ready for lots of different possibilities, roll with the punches so to speak,” Foley said.

He cautioned that “anything that we know on election night is still unofficial” with the Electoral College not meeting until Dec. 14.

He also emphasized that closure on the result doesn’t come from network projections but from a candidate’s concession.

And perhaps most bizarrely, a 269-269 tie is possible.

“You can create some scenarios where that’s not crazy,” Foley said. “It would have to be closer than the polls suggest.”

That would kick the election — like 1800 — into Congress, bringing the Electoral College full circle.

“It’s very unlikely to go to the House,” Foley said, “but it could.”

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