The problems start if a state submits two different election results and the House and Senate clash on which results should be tallied. More later on all the dominoes that would have to fall for that to happen in 2020.
But if that does happen, there are conflicting interpretations of what the law requires Congress to do, Foley said. It’s an ambiguity that he calls the Achilles’ heel of the Electoral College system and Congress’ role in counting votes.
In one reading backed by a legal analysis in 2004, Congress would count the electoral slate backed by the governor of the state. In the other reading, backed by a Congressional Research Service report from 2001, the state’s electoral votes would not be counted at all. The unused provision remains untested.
“It’s not crazy,” Foley said, to imagine two different electoral results from a state that is critical to the outcome of the presidential election, or a group of states that are critical to the outcome. And he says the law lacks full clarity and “does not address the situation.”