What events can occur in the electoral votes count that would overturn election results?

Question

What series of events would specifically need to occur on January 6 (when Congress counts the 2020 electoral votes) so that the election is overturned? I know there's a remote possibility something may happen because major newspapers are covering the electoral vote count intently.

These past three to four days, several reputable newspapers have been publishing articles about Trump's relentless effort to overturn the election results: from Gohmert's lawsuit to interfere in the Electoral College count to GOP senators vowing not to certify Biden to the ridiculous 1-hour call to the Georgia governor.

I try to brush them aside, but it seems that papers like NYT and WashPost continue covering these things, which worries me.

Answer 1

There are nominally two legal paths that Trump and his supporters can follow during the vote counting to overturn the election results. Neither one is likely, but they exist. (There's also nominally the possibility of a violent coup by military or paramilitary forces, but at that point all bets are off and anything is possible.)

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The procedure for counting can be summarized as follows:

1. Presiding officer (usually the VP) opens a state and reads off (or hands to someone to read) the certificate from the state's government with that state's electors' votes.
2. Any objections to the validity of the certificate or any votes on it can be raised, provided that it is done in writing jointly by both a Representative and a Senator. Objections can be made that either the elector's vote was not "lawfully certified" (the elector shouldn't have been appointed) or not "regularly given" (something is wrong with the elector's vote itself).
3. If there are no objections, go to the next state and start over with #1. If this was Wyoming (the last state), instead go to #7
4. If there are objections, the two houses split up and debate for up to two hours.
5. After debate, each house votes on whether the objection is valid.
6. If both houses vote to consider the objection valid, that elector's vote (or the whole slate from the state, if they're all being considered together) is thrown out. If either house does not, it's considered valid and everything moves on with the next state.
7. After all states' electors' votes have been counted, if one candidate has a majority of the "whole number of electors appointed", they win. If not, things get complicated.

The first path to overturn the results would be to invalidate enough electors for not being "lawfully certified" that Trump has more than Biden. Note that all of this is vaguely defined and subject to interpretation, but my understanding of the precedent is that if the vote is irregular it can be thrown out but the elector still counts as being appointed, and if the elector is not certified then the vote is thrown out and the total number appointed is reduced. (This distinction has never mattered before, so who knows?)

There are currently 538 electors and votes cast, so a majority is 270. Since Trump didn't reach that number, there is no way he can have a majority if the votes are thrown out but still counted as cast, but if 75 Biden electors are thrown out, then 232 > 231 and Trump wins. (I'll leave mathing out which combinations of states would have at least 75 Biden votes to the reader.)

The second path is to throw out enough votes that neither candidate has a majority. This only requires invalidating 36 Biden votes. This seems like it'd be harder, though, because the challenge is that the correct elector was appointed, but they then did something wrong (such as a faithless elector voting for a third party candidate). However, if this does occur, the House will vote - with one vote per state - for either Trump or Biden, and the majority state vote wins. Currently, Republicans control more state delegations than Democrats, even though the latter have the overall majority, so this would presumably be a win for Trump.

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With the cooperation of a state governor or legislature in a Biden state, a competing slate of electors could have been appointed to vote for Trump, which would then provide a third path: Choosing the Trump-favoring slate when presented with two competing slates. But this didn't happen and it's now too late for it. Trump-favoring slates were submitted, but none of them have any official backing.

There's also been suggestions that the VP (who is presiding over all this) can invalidate or not count votes by himself instead of needing a Congressional objection, but there's no legal basis for that that I've seen, so I'm not even counting that as a fourth option.

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Since the Democrats control the House and a significant number of Republican Senators have said they will oppose any objections, there is no realistic possibility of any of this actually changing the election results, but this is the theory of how it could happen.

Answer 2

There is virtually no chance that the results will be overturned.

To provide background, federal law allows electoral votes to be challenged.

Provisions in 3 U.S.C. §15 include a procedure for making and acting on objections to the counting of one or more of the electoral votes from a state or the District of Columbia. When the certificate or equivalent paper from each state (or the District of Columbia) is read, “the President of the Senate shall call for objections, if any.” Any such objection must be presented in writing and must be signed by at least one Senator and one Representative.

[ ... ]

The joint session does not act on any objections that are made. Instead, the joint session is suspended while each house meets separately to debate the objection and vote whether, based on the objection, to count the vote or votes in question. Both houses must vote separately to agree to the objection. Otherwise, the objection fails and the vote or votes are counted. (3 U.S.C. §15, provides that “the two Houses concurrently may reject the vote or votes.... ”)

– Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, Congressional Research Service, page 6

(emphasis mine)

However, the challenges are almost certain to fail in both houses of Congress as the Democrats control the House and not all Senate Republicans will be voting against the certification of the results.

Answer 3

It is wildly unlikely, but may be possible for Pence to read the alternate slate of electors or to simply not read any electors for the most contentious states. This has some slight precedence in that, in the election of 1960, then-Vice President Richard Nixon read out the Democrat electors for the state of Hawaii even though that state had previously certified the Republican slate of electors and the Democrat elector slate did not have the governor's signature. In 1960, this didn't make a difference either way, Nixon lost by a wider margin than Hawaii's electors could cover. If Pence either chose to count Republican electors, or no electors for Pennsylvania, Georgia, Wisconsin, Michigan, Arizona, and/or Nevada, Biden would not get 270 and would not be elected.

Again, this is exceedingly unlikely, like getting struck by lightning while being attacked by a shark after winning the lottery levels of improbability.