I’m not a lawyer. To help me understand what’s going on, I’ve tried to summarize the current unusual election situation as simply as I can.  I hope others find this information useful. Because long posts don’t get read as much, if you find this information useful, please consider asking a Mod to sticky it.

Current Election Status

• “Dueling slates of electors” occurs when different authorities within a state certify different sets of Electoral College electors.
• As of Dec 14th, the 7 swing states of AZ, PA, MI, WI, GA, NV, and NM have dueling slates of electors.  Legislatures of these states certified electors for Trump on Dec 14th.  Governors of these states had previously certified sets of electors for Biden.
• The fact that the election is formally contested with dueling slates of electors adds weight to the argument that lawsuits alleging fraud in these swing states should be heard and expedited by the Supreme Court. The explanation given by some state legislators for certifying Trump electors was that they were “preserving the legal claims” of the Trump administration.
• All sets of state electors cast their ballots for President on Dec 14th.  Having declared who they would vote for in advance, this voting was just a formality.
• Biden is claiming to be President Elect based on the governors’ sets of electors but nobody is President Elect until Congress certifies the Electoral College election on Jan 6th.

Relevant History and Law

• The Constitution and its Amendments don’t address the possibility of dueling slates of electors. That omission strongly suggests that the Framers didn’t realize that dueling slates of electors were possible. (Ref: https://constitutioncenter.org/interactive-constitution/full-text)
• Article II, Section 1 of the Constitution says “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, […]” so the Constitution clearly grants state legislatures the ultimate authority to appoint state electors. However, state legislatures typically write state laws that delegate that responsibility to others (e.g., governors). One could argue that, if a state legislature delegated that authority, but subsequently selected electors themselves, that would imply that they had rescinded any previous delegation of that authority. A possible counterargument is that the state legislature would have to change state law before they could do that legally. Clearly, such things are debatable matters of state law. Whenever such matters are unresolved, dueling slates of electors are possible.
• Using widely varying styles of legalese, the state laws of the 3 states I checked (PA, MI, and GA) directed specific state officials to count the numbers of votes for various presidential candidates and identify the corresponding electors. These laws identified who was to perform these tasks and what was to be accomplished. Although there was no specification of how the tasks were to be accomplished, it’s obvious that these counts should be accurate and involve legal votes only. The mundanity of these state laws highlights that controversies that produce dual slates of electors are not fundamentally disagreements about who has the responsibility to select electors, they are at their core questions about which votes are legal.
• Dueling slates of electors occurred, for the first and only time before 2020, in the 1876 election between Rutherford B Hayes and Samuel J Tilden when 3 states (LA, FL and SC) had dueling slates. In that election, a divided Congress eventually set up a special electoral commission composed of fifteen congressmen and Supreme Court justices to resolve the deadlock. (Ref: https://www.rbhayes.org/hayes/disputed-election-of-1876/)
• In the wake of the disputed 1876 election, the Electoral Count Act of 1887 (https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/24/STATUTE-24-Pg373.pdf) attempted to clarify the procedure for how Congress counts electoral votes. That US federal law has subsequently been codified and incorporated with some modifications into Title 3, Chapter 1 of the United States Code. (Ref: https://en.wikipedia.org/wiki/Electoral_Count_Act)
• Title 3, Chapter 1 of that federal law (https://www.law.cornell.edu/uscode/text/3/chapter-1) acknowledges the possibility of dueling slates of electors and describes the procedure Congress shall use to confirm electors. Section 6 states that governors are to communicate the state’s electors, which is probably why legislator-selected slates of electors are often referred to as “alternate” slates of electors. Section 15 states that, initially, both houses of Congress meet together. Votes are processed one state at a time in alphabetical order by state name. (“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.”) If at least one member of each house objects in writing to a proposed slate of state electors, the houses withdraw to separately determine which slate of state electors to accept for that state. Critically, if the houses of Congress select different sets of state electors, the set submitted by the governor is to be counted. (“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.”) In the current election, this tie-breaking rule clearly favors Democrats. Trying to run out the clock is probably not an option because Section 17 limits the separate House and Senate debates to two hours per state and Section 16 limits the time that can be spent in recess.
• If, for any reason, no presidential candidate receives the majority of electoral votes, the 12th Amendment of the Constitution requires that “from the persons having the highest numbers not exceeding three on the list of those voted for as President, 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; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”

Predicting the Future

• The best outcome would involve judicial resolution of the dueling slates of electors before Congress meets on Jan 6th. Hopefully, lawsuits focusing on flagrant 2020 election fraud would clarify which general election votes were legal, and therefore which slates of state electors are legal. There is plenty of time for the Trump administration to get these matters before the Supreme Court and I expect that they will do so.
• The new Congress will be sworn in on Jan 3rd. If revelations about election fraud don’t change things, the House will have a slight Democrat majority. History suggests that a Democrat House majority would likely vote in lockstep. Depending upon the upcoming election in Georgia, the Senate will be 52/48, 51/49, or 50/50 Republican/Democrat, with VP Pence casting a tie breaking vote if necessary. However, the presence of RINOs in the Senate means that a slight Republican majority can’t ensure Republican-desired outcomes.
• The new Congress is scheduled to meet on Jan 6th to try to attempt to certify the Electoral College election. If dueling electoral slates haven’t been judicially resolved by then, because it’s so easy for Congress to contest electoral votes, it’s very likely Republicans would do so, causing the two houses of Congress to separately debate contested states’ electors. Because a Democrat majority House would likely vote in lockstep, and the tiebreaker rule selects governor-submitted electors, this process would probably result in a certification of Biden as President Elect.
• Matters of law are always debatable. If I were a GOP strategist facing dueling slates of electors on Jan 6th, as a last resort, I’d consider protesting that the legality of general election votes had not been properly adjudicated by courts and/or audits. That protest would likely involve a Senate walkout, effectively refusing to fully participate in electoral certification, thereby denying a quorum, which would effectively force the judiciary to intervene. I would not stage a House walkout in case the 12th Amendment clause about a special House vote determining the outcome of the election was triggered.

Take Aways

• Controversies that produce dual slates of electors are fundamentally disagreements about which general election votes are legal.
• When large scale fraud is plainly evident and insufficiently investigated, our elections should not be determined by arbitrary tie-breakers.
• Hopefully, litigation that exposes 2020 election fraud will clarify which general election votes are legal, and therefore which slates of electors are legal, before electors are presented to Congress on Jan 6th.
• In 2020, the electoral certification tiebreaker rule favors Democrats so, as a last resort, a GOP Senate boycott of electoral certification should be considered.
• The results of the Georgia Senate election are not likely to determine the outcome of the presidential election but they are very important for other reasons.