In a contested 2020 election, Democratic governors and Republican state legislatures could send competing electors to be counted at the Jan. 6, 2021 joint session of Congress.
Similar to 1876, the Republican Senate and Democratic House would disagree on which electors to accept. However, in the media environment of 2020, it would be virtually impossible for the two houses of Congress to reach a backroom deal to resolve their dispute as happened in 1876.
Democrats would argue that the Electoral Count Act of 1877—passed in order to avoid a repeat of 1876—favors the electors certified by state governors; in this case, the Democratic governor of Pennsylvania certifying electors voting for Biden.
Republicans, on the other hand, would argue that the Electoral Count Act is unconstitutional, as the Constitution clearly allows state legislatures to certify electors; in this case, the Republican state legislature of Pennsylvania certifying electors voting for Trump.
Under the Constitution, there exists no mechanism to resolve a dispute in which the two houses of Congress cannot agree upon a certified set of electors, and there is no Constitutional role for the courts, including the Supreme Court.
Republicans, supported by legal and historical precedent, would argue that under the language of the 12th amendment, which reads, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted,” the President of the Senate—Vice President Mike Pence—has the sole discretion to break a deadlock between the Senate and the House, and to either accept or dismiss disputed electors.
As Edward B. Foley explains, in such a scenario, “Some Republicans take the especially aggressive position that Mike Pence, as President of the Senate, has the unilateral authority under the Twelfth Amendment to decide which certificate of electoral votes from Pennsylvania is the authoritative one entitled to be counted in Congress and that he, accordingly, will count the certificate from the electors appointed by the state legislature because the Constitution authorizes the state legislature to choose the method of appointing electors. These Republicans point to the historical pedigree of this position, observing that Republicans made the same argument during the disputed election of 1876 and that at least some recent law journal scholarship has supported this position. Unembarrassed by the apparent conflict of interest caused by Mike Pence simultaneously being a candidate for reelection and arbiter of the electoral dispute, these Republicans observe that Thomas Jefferson was in essentially the same position during the disputed election of 1800 and yet the Twelfth Amendment left this provision in place when Congress rewrote the procedures for the Electoral College afterwards. While it is true that an incumbent Vice President might have a direct personal stake in the electoral dispute to be resolved, the Republicans argue, at least the glare of the spotlight is focused on whatever the vice president does in this situation, and everyone will be able to judge whether the vice president acted honorably or dishonorably in resolving the dispute.”
“This interpretation of the Twelfth Amendment is bolstered, moreover, by the further observation that the responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all. Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate. This role could have been vested in the chief justice of the United States, as is the constitutional authority to preside over the trial of an impeachment of the president. Or disputes of this nature could have been referred directly to the Supreme Court, as a singular corporate body, for definitive resolution there. But the Constitution does neither; nor does it make any other such provision. Thus, according to this argument, the inevitable implication of the Twelfth Amendment’s text is that it vests this ultimate singular authority, for better or worse, in the President of the Senate. Subject only to the joint observational role of the Senate and House of Representatives, the President of the Senate decides authoritatively what ‘certificates’ from the states to ‘open’ and thus what electoral votes are ‘to be counted.’”
Vice President Pence would then either accept the electors submitted by the Republican legislatures voting for Trump, or dismiss them as disputed and not have them counted. In this new, reduced total of electors, a remaining majority still delivers Trump a victory.
If a majority is not reached, then under the 12th amendment, “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” If Republicans maintain their current 26-state House majority by state delegation, they are thereby able in this scenario to reelect President Trump for a second term.
https://nationalinterest.org/feature/donald-trumps-stealthy-road-victory-172235
Under the Constitution, there exists no mechanism to resolve a dispute in which the two houses of Congress cannot agree upon a certified set of electors, and there is no Constitutional role for the courts, including the Supreme Court.
There is a controlling federal law. When the two houses fail to agree, "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."
https://law.justia.com/codes/us/2018/title-3/chapter-1/sec-15/
3 U.S.C. § 15§15. Counting electoral votes in Congress
Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.
Except they have done no such thing.