Electoral Votes Regularly Given

Every four years, Congress convenes to count presidentialelectoral votes. In recent years, members of Congress haveobjected or attempted to object to the counting of electoral voteson the ground that those votes were not “regularly given.” Thatlanguage comes from the Electoral Count Act of 1887. But thephrase “regularly given” is a term of art, best understood as“cast pursuant to law.” It refers to controversies that arise afterthe appointment of presidential electors, when electors casttheir votes and send them to Congress. Yet members of Congresshave incorrectly used the objection to challenge an assortmentof pre-appointment controversies that concern the underlyingelection itself.

This Essay identifies the proper meaning of thephrase “regularly given,” articulates the narrow universe ofappropriate objections within that phrase, and highlights whythe failure to object with precision ignores constraints oncongressional power.