This brings us back to Article II, Section 1, of the Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

So, the key to the 2020 election appears to be Vice President Pence having the courage to acknowledge that certain States have not “appoint[ed], in such Manner as the Legislature thereof may direct, a Number of Electors.” It would be easier for the Vice President to acknowledge this if a court already would have made this legal determination before the 6th of January, but it is not necessary for a court to so rule -- especially if no court has ruled to the contrary!

An unconstitutionally appointed elector, like an unconstitutionally enacted statute, is no
elector at all.

Republican electors from the six disputed States sent in “provisional” electoral votes, consistent with procedures in the 1960 Hawaii presidential election, wherein Richard Nixon won that State by a slim margin, after which both Democrats and Republicans in Hawaii transmitted electoral votes to Congress.

When a recount was performed by Hawaii, John F. Kennedy was announced the winner of the Hawaiian electoral votes, and the provisional democratic electoral votes for Kenned ytherefore replaced the ones for Nixon. In that case, Hawaii’s electors did not decide the outcome of the election, and Kennedy’s provisional electoral votes were counted without controversy.

Unlike the 1960 election, the electoral votes associated with the six currently disputed states will decide the