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What If the 2020 Presidential Election is Disputed? SCENARIO 2.1 SCROLL DOWN

Session 2: From Meeting of Electors (Dec 14) to Joint Session of Congress (Jan 6)

Hypothetical Scenario 2.1: Pennsylvania sends two conflicting sets of electoral votes to Congress

In the aftermath of Scenario 1.1, Pennsylvania sends to Congress two conflicting sets of electoral votes. One purports to derive its authority from the state judiciary’s decision to extend the deadline for submitting mailed ballots and to treat the ballots cast and counted pursuant to that decision as valid under state law. (If counted, these additional mailed ballots from Philadelphia would cause Joe Biden, the Democrat, to win the state.) The second set of electoral votes from Pennsylvania derives its authority from a federal judicial decision that declared the state court’s deviation from the state statutory procedures for mail-in voting (both the extension of the deadline and the use of the FWAB for domestic voters) unconstitutional under the Due Process Clause of the Fourteenth Amendment. Pursuant to the federal court order, this second set of electoral votes reflects the exclusion of ballots cast pursuant to the state court’s order. (With these ballots excluded, Trump is the winner of Pennsylvania’s popular vote.) This second set of electoral votes also purports to have “Safe Harbor” status under 3 U.S.C. § 5, because the federal court forced compliance with Pennsylvania’s statutory law as it existed before ballots were cast (and because the federal court issued its decision before the “Safe Harbor Deadline” of six days prior to the meeting of electors on Monday, December 14.) As Congress prepares for its joint session on January 6 under the Twelfth Amendment and 3 U.S.C. § 15, this legal question arises: which of the two sets of electoral votes from Pennsylvania, if either, should Congress accept as valid? Relatedly, could further litigation in federal court force Congress to accept either set of electoral votes, on the ground that the opposing set of electoral votes violates the Fourteenth Amendment and thus is beyond the power of Congress to accept—or that the second set of electoral votes, having “Safe Harbor” status, is binding upon both houses of Congress? (Note: in this scenario, the Biden campaign continues to argue that Equal Protection and the Voting Rights Act require the remedy ordered by the state judiciary, and thus it would be unconstitutional and unlawful for Congress to accept electoral votes from Pennsylvania that violate federal law in this way.)