These potential scenarios are something I have been looking into to see what might happen. I am not a Constitutional lawyer, but the “nightmare” scenario of Pence’s interference, as I understand it, works something like this:
Pence opens the ballots alphabetically, starting with Alabama. When he gets to Arizona, he has two envelopes, one submitted under the Governor’s certification, and one submitted by Republicans, who have held their own electoral vote. Under the Electoral Count Act, Pence is required to open and submit both counts. He then declares that the Republican submission is the real and true vote, and asks for objections. At this point, a Democratic Senator and Representative will, of course, object, requiring each chamber to vote on which slate is the “real and true” electoral vote count.
Thing is, under that same Electoral Count Act, the votes submitted under the Safe Harbor provision are, by default, considered the “real and true” vote, so, by statute, Pence should never make the determination for the Republican slate, as it was not submitted under Safe Harbor.
“[I]f more than one return, or paper purporting to be a return, from a state is received by the president of the Senate, then the only votes to be counted are those that have been “regularly given” by those electors (or their validly-appointed successors) who are shown by the “determination” mentioned in 3 U.S.C. § 5 (“safe harbor”)”
If the chambers disagree on which slate should be counted (because more than one slate has been submitted under Safe Harbor provisions), then “if the two Houses shall disagree in respect of the counting of such votes, then … the votes of the electors whose appointment has been certified by the executive of the State, under the seal thereof, shall be counted.”[23]
So the votes under the Governor’s signature are the votes to be counted. Realistically, there is no path to throwing out the certified electoral vote, and little can be accomplished beyond delaying the inevitable, and forcing Republicans to go on record voting for or against Trump’s attempted overthrow.
As I said, I am not a Constitutional lawyer, and I predict Republican shenanigans. Hell, Tuberville certainly seems of low enough intellectual capacity to fall for this scheme. We will see if McConnell or Thune can back Tommy into a corner and make him realize that there is no political upside to mucking about with the inevitable outcome. No other Republican Senator appears to be signing on to this ploy.
Of course, an awful lot has happened in the last four years that I didn’t think could happen, so we will have to see what they try, but I don’t think there is any real path to overturning the certified results.