Electoral Votes Regularly Given

• Publication year: 2021

Electoral Votes Regularly Given

Derek T. Muller
University of Iowa College of Law

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ELECTORAL VOTES REGULARLY GIVEN

Derek T. Muller^*

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.

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Table of Contents

I. Introduction..................................................................1531

II. The Meaning of "Regularly Given"...........................1534

A. HISTORICAL USE OF "REGULARLY GIVEN" IN LAW ... 1534
B. ACADEMIC DISCUSSION OF "REGULARLY GIVEN"..... 1535
C. A NARROW SCOPE FOR "REGULARLY GIVEN"............ 1537

III. Recent Confusion in Congress................................1540

IV. "Regularly Given" and the Denominator Problem ......................................................................................1545

A. THE ELECTION OF 1872.......................................... 1545
B. "REGULARLY GIVEN" OBJECTIONS YIELD FEWER OPPORTUNITIES FOR CONGRESSIONAL MEDDLING .. 1550

V. Conclusion....................................................................1551

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I. Introduction

On January 6, 2021, Congress began counting electoral votes, as it does every four years. When Vice President Mike Pence read the certificate of the vote of the state of Arizona, Representative Paul Gosar stood to object to the certification, and the Clerk of the House read aloud the objection: "We, a Member of the House of Representatives and a United States Senator, object to the counting of the electoral votes of the State of Arizona on the ground that they were not, under all of the known circumstances, regularly given."¹ Senator Ted Cruz joined this objection and took a slight bow as those in favor of the objection cheered.²

The problem? It wasn't the proper objection. Messrs. Gosar and Cruz didn't challenge the regularity of the votes. They were challenging the certification process behind the choice of the electors.³ It was the latest in a string of twenty-first century legal errors, replicated later that day by Representative Scott Perry and Senator Josh Hawley.⁴ It was the same error committed by Representative Stephanie Tubbs Jones and Senator Barbara Boxer in 2005,⁵ and the same error attempted by myriad Democrats in 2001 and 2017.⁶ It reflects a paucity of understanding about what "regularly given" electoral votes are—and what they are not.

The Electoral Count Act of 1887⁷ sets forth the procedures for counting electoral votes. The Senate joins the House in a special

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joint session.⁸ Section 15 of the Act opaquely offers the President of the Senate an opportunity to "call for objections, if any" to the reading of the certificate of the electoral votes of a state.⁹ Objections must be "in writing," and "state clearly and concisely, and without argument, the ground thereof."¹⁰ The Senate withdraws from the joint meeting, and each chamber debates whether to sustain the objection.¹¹ It requires the agreement of both chambers to sustain an objection.¹²

In particular, when one slate of electoral votes has been received, Section 15 explains:

[N]o electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.¹³

"Lawfully certified" is best understood as referring to the state's process of certification. It includes congressional deference to states that resolve controversies over the appointment of electors six days before the electors meet.¹⁴ In contrast, "regularly given" refers to the "votes," and it suggests a narrower scope—one that has not been the focus of congressional objections in recent years.¹⁵

The distinction matters. After the "determination" of the "appointment"¹⁶ of presidential electors, those electors are identified in a "certificate of . . . ascertainment of the electors appointed,"¹⁷

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which is transmitted to Congress. If a state has resolved all controversies over the appointment of electors at least six days before the Electoral College meets—the "safe harbor" deadline¹⁸ —such appointment "shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned."¹⁹ If Congress objects to a state's electoral votes on the grounds that they were not "lawfully certified," it must first address the question of the safe harbor deadline. And if a state has "lawfully certified" pursuant to the Act, those votes "shall" not be rejected.

In the 2020 election, Arizona represented that all controversies were resolved by December 8, 2020—the safe harbor deadline—even as other court challenges remained pending.²⁰ If a member of Congress wanted to challenge whether the state's election was "lawfully certified," it must overcome the Electoral Count Act's "safe harbor" rule that the state's resolution "shall be conclusive." Electoral votes "regularly given," however, have no such condition.

In one respect, this Essay's claim is modest. It assumes Congress's power (1) to count electoral votes and (2) to determine whether to count electoral votes—two assumptions that have been questioned in recent years.²¹ If Congress has that power, it can define how it goes about exercising it, including through the Electoral Count Act. And so, this Essay examines only how the phrase "regularly given" in the Act should be construed. Congress may have broader power, or it may choose to limit its power—but, for purposes of this Essay, the text of the Act drives the analysis.

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II. The Meaning of "Regularly Given"

The definition of "regularly given" in the Electoral Count Act has been elusive.²² But, as this Part will show, the best understanding of "regularly given" is "cast pursuant to law," with "law" referring to the federal Constitution, federal law,²³ and state law.

A. HISTORICAL USE OF "REGULARLY GIVEN" IN LAW

"Regularly given" is a legal phrase that was routinely used in the late nineteenth century. Notice was "regularly given."²⁴ Taxes were "regularly given."²⁵ A judgment could be "regularly given."²⁶

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Testimony can be "regularly given."²⁷ In context, it simply means some act or exchange that arises pursuant to law. The "given" also suggests a transfer from one to another—notice to an opposing party, taxes to the one who holds the debt, a judgment to the parties. And the "regularity" of the "giving," in these historical contexts, means that the "giving" occurred according to law.

Consider one gloss in Georgia in 1872: "But does 'regularly given in for taxes' mean given in each year for taxes? 'Regularly given in' surely means given in according to rule; law is a rule of action. Then, according to law, what is the law applicable to such a case?"²⁸

In these contexts, the phrase is also used to describe the act or exchange itself, and not the circumstances behind it. A judgment, for instance, could be "regularly given," even if in error.²⁹ Notice to request the production of a document could be "regularly given," even if the notice could not be complied with because a party lacked possession of the document.³⁰

The best construction of votes "regularly given" is that the votes were cast pursuant to law. It does not look at the circumstances behind the votes. Instead, it merely looks at the votes themselves.

B. ACADEMIC DISCUSSION OF "REGULARLY GIVEN"

Professor Beverly Ross and William Josephson focus on the statute's legislative history to support the view that "regularly given" means "lawful."³¹ Their scrutiny of contemporaneous history supports the argument that "regularly given" refers to post-

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appointment controversies, not pre-appointment ones. Consider the views of a nineteenth century contemporary:

[T]he law authorizes the two Houses by concurrent resolution to reject the votes of the electors for President and Vice-President if they agree that these have not been regularly given; i.e., the two Houses cannot reject the return on account of fraud or defect in the election of the electors or in the determination of a controversy thereover, but may do so on account of irregular action on the part of the electors themselves in giving their votes for President and Vice-President.³²

Their conclusion, however, would limit Congress's power not to count votes. Congress would only have power not to count votes when "explicit constitutional requirements are violated";³³ and only in instances where "a state itself has not authoritatively determined the question" of an elector's appointment or where a state has, by statute, expressly provided the conditions that votes are not "regularly given," such as the act of a faithless elector.³⁴

Professor Stephen Siegel's impressive work on the Electoral Count Act likewise distinguishes between "post-appointment"...