Smart Andy Craig at Cato:

The law makes this distinction clear, carefully tracking the Constitution’s text. 3 USC §15(e)(2) provides that the whole number of electors is reduced only if a state has failed to appoint the number of electors to which it is entitled, or else an objection is sustained under “subsection (d)(2)(B)(ii)(I)” (emphasis added). That is, a “lawfully certified” objection, but not a “regularly given” objection.

In other words, the kind of objection which could trigger a contingent election is also the kind of objection made effectively impossible by ECRA, because “lawfully certified” objections can only be raised if Congress is somehow presented with a slate of electors in defiance of a federal court ruling. ECRA requires such a question to be decided in the courts prior to January 6, with that outcome being binding on Congress. The concept of Congress choosing between dueling slates of claimant electors, as envisioned under the previous Electoral Count Act of 1887, is no longer applicable. 

As a practical matter, even with the possibility of narrow Republican majorities in both the House and Senate, it is plain not enough would vote in favor of an attempt to overturn the election. ECRA was co-sponsored by ten Republican senators, and passed out of committee with only one Republican vote against it. In 2021, about two-thirds of House Republicans voted for the objections, and in the Senate, only eight voted for one or both of the two objections considered. Considering that any plausible Republican majorities would have only a few votes to spare, possibly as few as just one, majorities in both chambers will be out of reach. Even if higher shares of the GOP members vote that way, it would require near-unanimity for an idea already firmly rejected by many Republicans.

Attempts to subvert the outcome of the 2024 election are serious and ongoing, and merit serious opposition. But a contingent election in the House is not how such an effort would play out, and popular explainers of the law should avoid erroneously suggesting otherwise.