This is the first post in a series.

Our presidential election really doesn't happen on November 8 when more than a hundred million Americans visit the polls. It happens on December 19, in state capitols around the country, by just 538 select individuals, who gather in a meeting of the Electoral College.

The Electoral College does not function like the Framers anticipated. Indeed, it functioned so poorly from the very beginning that the Constitution was promptly amended to cure its failings. So why have an Electoral College at all? There are, perhaps, two good reasons for an Electoral College today: practical and theoretical.

The first is practical. Instead of holding a national popular election for president, we hold fifty-one separate contests in the fifty states and the District of Columbia. They set up different times for the polls to be open, different registration and early voting times, and different eligibility rules for ex-felons and for the mentally ill. They have different ballot rules--some permit "fusion" candidates to list multiple party names beside a candidate's name, and some make it easier for candidates to appear on the ballot at all.

Each state looks a little different in running elections. So it makes sense that the United States doesn't just hold a single national election for president. Or, at least, it emphatically made sense at the founding. Even if the Framers had widely accepted direct election of the executive (which they hadn't, citing, among other things, a concern of an "excess of democracy"!), the logistics of creating a uniform national election on top of our federalist system would have been deeply complicated--particularly defining who would be eligible to vote in such elections. The form of the Electoral College permits these elections to occur on a state-by-state basis, then aggregate the results neatly after the fact.

On top of that, the current system ensures a true majority winner. A candidate needs 270 electoral votes, an actual majority instead of a plurality or the most among all vote-getters. There's an increased sense of legitimacy from a majority winner. Absent an runoff among the top two vote-getters or a form of instant run-off voting, the winner could receive just a plurality of the vote--indeed, in some presidential elections, the winner receives less than 45% of the popular vote. This is not fatal in other elections--many states permit governors or mayors to win with a plurality for instance--but it does remain a concern. It also permits relatively small popular vote victories to translate into very wide electoral vote margins, perhaps adding to the legitimacy of the winner--Reagan defeated Carter by just 9 points in 1980, but he won 489 electoral votes. Obama defeated McCain by 7 points, but he held a nearly 200 electoral vote margin of victory.

The second is theoretical. You're likely aware that the Electoral College gives an advantage to smaller states--each state receives a total number of presidential electors equal to the number of Senators and Representatives in that state. Because each state receives two Senators, and at least one Representative regardless of its size, each state receives three electors. That certainly redounds to the benefit of smaller states. But it's worth noting that at the present, that advantage does not particularly advantage on political party over another--the smallest states are fairly evenly divided in their political preferences at the moment.

But the Electoral College also does something else--it allocates electors in part based on the House of Representatives, which is apportioned based on the total population in each state. It is not apportioned based on the total number of voters in each state. That means that states with a significant non-voting population--such as a significant number of children or non-citizens--gain an advantage. Yes, states like California and Texas have less raw power than the smallest states in the Electoral College. But they also are given a bit more weight than states like Ohio and Pennsylvania because of their significant populations of children and non-citizens. States in the South and the West tend to have greater representation in the House and, in turn, the Electoral College because of these growing non-voting populations.

It might be that we expect the person with the most votes to win elections. But it might also be the case that we think that raw voter turnout shouldn't be the sole measure of political power; perhaps the allocation of the House helps indicate why some states get a little boost in representation, something that carries over to the Electoral College.

I admit, conceding these problems does not necessarily mean one must whole-heartedly embrace the Electoral College. Indeed, one could reject the theoretical claim and find that we simply need better logistical solutions, perhaps a constitutional amendment, for the practical claim. And these few things it does well might still be outweighed, at least to some, by other things, such as the intervening element of "electors" who cast votes, or the possibility that elections might be sent to the House. Some of these matters, I think, may best be left for another post.

For more, consider Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237 (2012).