If the election took place today, polls suggest that Mitt Romney could win the popular vote while Barack Obama wins the electoral vote. At RealClearPolitics, Scott Conroy provides some context:
In the days before the 2000 election, George W. Bush’s campaign reportedly prepared talking points to dispute the democratic fairness of what was then seen as a more likely outcome -- that Al Gore would win the Electoral College while losing the popular vote.
But amid the subsequent Florida recount and Supreme Court decision that awarded Bush the presidency despite his loss in the popular vote count, the Republican’s team was emphatic that only the Electoral College mattered.
Despite the protests waged by many Gore supporters, the constitutionally mandated criteria for winning the presidency were as clear then as they are now.
“It’s striking that both sides tend to adjust their position on the Electoral College based on whose ox is being gored,” said George Washington University Law School professor Jeffrey Rosen. “Republicans would have a hard time claiming that someone who won the Electoral College was not legitimately elected, in light of what happened in 2000. Because there’s no Constitutional doubt at all on the question, there’s really no serious argument that if Obama lost the popular vote and won the Electoral College he would not in fact be president.”In the popular-vote loser won the electoral vote, as we note in our textbook, supporters of the popular vote winner might try to persuade electors to switch sides. Some states do not bind their electors to vote for the candidate to whom they are pledged. Some do, but there is serious doubt that courts would find such requirements to be enforceable.
An effort to switch electors would surely occur in the unlikely -- but not impossible -- scenario of an electoral college tie.