I don't know who'll win the election but Obama has more safe and likely electoral votes than does Romney and this advantagage has held. Obama has an easier path to the magic 270 as a result, because he has to win fewer swing states.
But Romney according to some polls has the popular vote advantage, leading to the possibility of a reverse 2000: where the Democrat will have the electoral college majority but the Republican the popular majority.
Will Romney go to court to claim that the electoral college did not survive the Fourteenth Amendment? Gore didn't. But Romney could.
Now here's where it gets interesting. Republicans have long supported the EC system beause it has been favorable to them. It gives non-urban states, traditionally Republican in a national election, a disproportionate say in who wins. But that is changing. A generic Democrat can now expect to get 221-247 EC votes, depending on how you count, compared with 191 for a generic Republican. (The identity of the nominees can change that, of course. These numbers are for generic nominees.)
So whereas at one time, the GOP might have tried to dissuade a popular vote winner who has lost the EC from challenging the EC system, because the EC was disadvantageous to the GOP in the long run, maybe it no longer is. Today the GOP might see such a challenge as a good thing. Or not. In any event, it cannot stop a candidate from bringing such a challenge -- all the way to the Supreme Court.
I doubt the challenge would win but that analysis is above my pay grade. For Romney, if he's the popular vote winner who loses the EC, it's either a court challenge or rapid obscurity. Would the Scalia Court come to his rescue under the banner of saving democracy?
And we're told the next President will choose 1-3 justices. So the justices have a certain interest, not that it should matter. Of course.