These Electoral College votes are to be submitted to appropriate authorities for potential counting on January 6th.
The person counting the Electoral College votes will be? Vice President Pence.
By doing so, they have set up a situation where ongoing litigation in each state is allowed to continue forward. State Legislatures are also able to certify these results per Article II of the Constitution.
State Legislatures certifying these results (per Article II) would set up a situation in each state called “duelling electors” or “multiple returns”. This could result in Electoral Disputes similar to that of the 1876 Election. From this stage, there are a variety of pathways to counting the votes of Donald J. Trump’s electors. These include:
- Fraud and other irregularities taint the State Executive certified electors.
- Federal Legislatures vote to recognize State Legislature certified electors.
- State Executives elect to certify State Legislature certified electors.
- Judicial Ruling vitiates State Executive certified electors.
There is also a scenario where both elector slate returns could be denied on a variety of grounds. In this instance, neither candidate would reach the required 270 electoral votes to have a majority. This sets up a Contingent Election, per the 12th Amendment.
In a Contingent Election, the House would vote on the President, with each State having one vote, and State’s votes being determined by the majority vote of the representatives in that state. The Vice-President would then be voted for by the Senate, with each Senator getting one vote each.
All of these scenarios mentioned are up for legal debate. In 1887, Congress passed the Electoral Count Act, attempting to establish with 3 U.S. Code § 15, that a State Executive is the final authority for a States Electors. Varying counter-arguments are made about the act’s legal ability to contradict the Constitution authority given to the Legislature