Let’s look a bit deeper at the Twelfth Amendment as analyzed by the Congressional Research Service:
Congress has provided that the electors’ votes are to be tabulated on the sixth day of January, though occasionally it has chosen other dates in early January. To be elected President, a candidate must receive votes from a majority of the appointed electors. If no candidate receives this majority, whether because the vote is divided among multiple candidates or because a decisive number of electors were not able to submit their votes in time, the Twelfth Amendment requires the contest to be decided by the House of Representatives. Each state delegation casts one vote; members from at least two-thirds of the states must participate for there to be a quorum; and a winner must receive votes from a majority of all states.
If by January 6, the Electoral College has not selected a president, then the job falls to the House ASSUMING there is a 2/3 quorum. I suppose either party could force the election into the Senate by simply not showing up for work. The question then arises is “how is this different from today?” /s
Interestingly, The District of Columbia, which is not a state,does not receive a vote.
The House we’re referring to is the “new one” — that is 117th United States Congress.
The Constitution provides that each term for Members of Congress expires on the third day of January. Thus, in the event of a catastrophic emergency that prevented a significant number of states from transmitting the votes of electors and from holding congressional elections, there could be no body on the prescribed day of January 6th to choose the new President. In such a scenario, the duty could fall to the Senate. As a “continuing body,” two-thirds of the Senate’s members remain in office even if elections do not occur in a given year. Under the Twelfth Amendment, the Senate may choose the Vice President-elect. If the House of Representatives is not able to choose a President, then the Vice President-elect assumes that office.
If there are significant delays in counting mail-in ballots, it could well affect House races as well and so there might not be a quorum available for the 117th United States Congress.
Under the scenario where the House does not select the President BUT the Senate selects the Vice President, “majority of the whole number” of senators (currently 51 of 100) is necessary for election. Again, if a quorum is not present OR there are enough abstentions from voting, then this process fails as well and, in this instance, the line of succession would apply.
On the other hand, is there a path in this for Mike Pence or Kamala Harris to become President?