>So here’s the scenario we propose:

>(1) VP Pence, presiding over the joint session (or Senate Pro Tem Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that procedure, specified by the Electoral Count Act, is required).

>(2) When he gets to Arizona, he announces that he has multiple slates of electors, as so is going to defer decision on that until finishing the other states.

>(3) At the end, he announces that because of the disputes in the 7 states, there are no electors that can be deemed validly appointed in those states.  That means the total number of “electors appoint” – the language of the 12^(th) Amendment, is 454.  This reading of the 12^(th) Amendment has also been advanced by Harvard Law Professor Lawrence Tribe.  A “majority of the electors appointed” would therefore be 228.  There are at this point 232 votes for Trump, 222 votes for Biden.  Pence then gavels President Trump as re-elected.

>(4) Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required.  So Pence says fine.  Pursuant to the 12^(th) Amendment, no candidate has achieved the necessary majority.  That sends the matter to the House, where the “the votes shall be taken by the states, the representation from each state having one vote.”  Republicans currently control 26 of the state delegations, the bare majority needed to win that vote.  President Trump is re-elected there as well.

>(5) One last piece.  Assuming the Electoral Count Act process is followed and, upon getting objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control.  That would mean that a prior legislature was determining the rules of the present one – a constitutional no-no.  So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (Which includes the filibuster).  That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.

>(6) The main thing here is that Pence should do this without asking permission – either from a vote of the joint session or from the Court.  Let the other side challenge his actions in court, where again, Tribe (and others) claims that these are non-justiciable political questions should be raised to get those actions dismissed.  The fact is that the constitution assigns this power to the Vice President as the ultimate arbiter.  We should take all of our actions with that in mind.

Edit: typos fixed, [found here pp. 6-7](https://www.courtlistener.com/docket/67656604/266/3/united-states-v-trump/)