I’ve posted a couple of brief items already, but I want to take a moment to join the other new contributors in thanking Rick for his kind invitation to join the Election Law Blog. This site has been an extremely valuable resource for me since I was a law student (!), and it’s a tremendous privilege to join so many thoughtful scholars in the field here.
I have a late-stage draft of an essay forthcoming in the Georgia Law Review entitled “Electoral Votes Regularly Given.” Here’s the 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.
I anticipate a great deal of academic and legislative interest in the Electoral Count Act ahead of the 2024 election, and I hope this essay offers a small but meaningful contribution toward those efforts.