How Trump Can Still Get Another Term, Legally
Republicans are indeed sending votes of Trump electors to Congress as I previously predicted, although it’s not apparent that they have been “certified” by legislatures as I suggested they might be:
But the distinction may not matter: The Electoral Count Act of 1887 says that all purported results are to be considered by Congress. Therefore, whether the Trump electors or the Biden electors are accepted by Congress is a political decision, not a legal one:
https://www.law.cornell.edu/uscode/text/3/15#
Further, according to at least the analysis referenced below, even in a legal sense the Act is ambiguous as to what happens in the case of dueling slates of electors; one interpretation being that neither slate counts. If that interpretation were to prevail, then the election would be thrown to the House where each state delegations would get one vote¹, and Republican-controlled delegations will outnumber Democrat-controlled delegations 26–24²:
So it seems that a Republican Senate, even if it lost two Republican votes³, could vote to accept the Trump electors; the House would presumably vote to accept the Biden electors, and the only possible arbitrator of this deadlock would be SCOTUS — which would need only to interpret the Act, not rule on the merits of dubious election fraud claims. SCOTUS could claim it was only interpreting law and not taking sides in the contest; that the rule of law alone dictates that the House of Representatives elects the President in the case where several dueling slates of electors prevent any candidate from reaching the 270 electoral college vote threshold.
The question here is whether the Senate Republicans would unite (minus two members) to make Trump president again. It certainly will be tempting for them to do so.
I assert that who gets sworn in as president will now be decided by a relatively few people — namely, the Senate Republicans, SCOTUS and the House Republicans — not the voters.
²https://www.270towin.com/2020-house-election/state-by-state/consensus-2020-house-forecast
³The new Congress which will preside over the tallying of electoral votes on January 6th will be likely comprised of 48 Democrats and 50 Republicans, because the Georgia runoffs to elect the additional two Senators will not take place until January 5th — making it unlikely they will be sworn in on the very next day after the election.
Further, Pence will still be the Vice President of the United States and thus the tiebreaking Senate vote.
Therefore, the Senate Republicans could afford to lose the votes of two members and still the Senate could vote to accept Trump electors in a sufficient number of states to cause a deadlock over who will be the next president.
