But Republicans cannot have their cake and eat it too. They cannot plausibly argue that the Twelfth Amendment’s silences override the Electoral Count Act while ignoring the Amendment’s plain language. If neither slate of Pennsylvania’s electors is recognized, Biden’s 268 votes would fall short of a majority of the 538 total Electoral votes theoretically available. However, the Twelfth Amendment does not say anything about those votes. Instead, it says that “[t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).
We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator. Now Biden’s (assumed) 268 votes would be a majority of the 518 votes cast by the “whole number of electors appointed.” Biden would win in the Electoral College, meaning that the decision would not go to the House.
https://verdict.justia.com/2020/09/30/no-republicans-cannot-throw-the-presidential-election-into-the-house-so-that-trump-wins
And this from a 7/2020 SCOTUS decision regarding electors
And second, the Court’s decision reinforces the validity of the National Popular Vote Interstate Compact. Under National Popular Vote, states that combine for at least 270 electoral votes agree to award their electors to the presidential candidate who wins the most individual votes across the nation. (Fifteen states and the District of Columbia, totaling 196 electoral votes, have already passed the measure.)
In the 18 states currently without faithless elector laws, the National Popular Vote Interstate Compact would operate in a manner identical to the system that they have been using for over 200 years. In these states (which currently use the state-by-state winner-take-all method of awarding electoral votes), the presidential electors are chosen by the political party
https://www.brookings.edu/blog/fixgov/2020/07/14/supreme-courts-faithless-electors-decision-validates-case-for-the-national-popular-vote-interstate-compact/
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