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1. “Under the 12th Amendment, the vice president, in his constitutionally prescribed role as president of the Senate, is granted the sole power to “open” the electoral vote certificates and “count” them at the joint session of Congress, this year scheduled for Jan. 6.
2. Pence will be faced with dueling electoral votes for the six disputed swing states, a Biden slate from the governors, and a Trump slate from the lawmakers. The six disputed swing states account for 79 electoral votes. Not counting them, Trump stands at 232 and Biden at 227.
3. Thus, the disputed votes are sufficient to make either candidate a winner, if they are counted, or neither candidate a winner, if they are not counted, since in the latter case neither candidate will reach 270 votes (though in that case Trump would have a majority of votes)
4. The 12th Amendment sets forth a procedure for resolving a disputed election where neither candidate achieves a majority of electoral votes.
5. In that case, a “contingent election” is held by the House: “the House of Representatives shall choose immediately, by ballot, the President.
6. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote …”
7. Thus, if Pence were to “open” and read the electoral votes cast by both of the competing slates of electors from the six swing states, and choose “not to count” either set—in light of the conflict—
8. the House of Representatives would immediately vote to determine the winner, with each state getting one vote. Given that a majority of states are GOP-controlled (although the Democrats control a greater number of representatives), Trump would prevail.” — @StephenMeister
