Electoral Votes Regularly Given

Abstract

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not "regularly given." That language comes from the Electoral Count Act of 1887. But the phrase "regularly given" is a term of art, best understood as "cast pursuant to law." It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase "regularly given," articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

Keywords: electoral count act, electoral votes, presidential elections, electoral college, bush v. gore, voting rights, election law, election litigation, january 6, regularly given, lawfully certified, safe harbor

JEL Classification: K00, K1, K10, K19, K3, K30, K39, K4, K40, K49