As Congress moves forward with the proposed Electoral Count Reform Act, there is broad, bipartisan consensus on the need to reform the ECA and how ECRA would go about doing so. Attention has therefore turned to a variety of technical drafting details that have been flagged for concern. At the recent Senate Rules hearing on ECA reform, members of both parties and the cross-ideological lineup of expert witnesses generally agreed that these fixes are important to get right, even while praising the overall framework and main provisions of ECRA. My colleague Thomas Berry and I agree with that general sentiment, and focused on some of the tweaks we suggest in our statement to the committee.
One of the main areas of concern, and perhaps the most surprising element of the ECRA draft as released by the Collins-Manchin working group, concerns the valid grounds for objections during the joint session. These are the rules that limit on what basis members of Congress may challenge a state’s electoral votes, and a central goal of ECA reform is to constrain that process to its proper, narrow constitutional limits.
The ECRA draft retains the existing ECA’s provision on this point mostly unchanged, including two of its most notoriously uncertain terms: that objections may be entertained on the basis that electors were not “lawfully certified” or that their votes were not “regularly given.” These are terms of art intended to reflect a specific set of (generally unlikely) problems: that the electors whose votes have been submitted are not actually the persons who were appointed by the state as its members of the Electoral College, or that their votes violate any of the handful of explicit constitutional provisions governing how the electors are to vote and for whom they may vote.
That bifurcation runs through the existing ECA, is strengthened by ECRA, and is grounded in the underlying constitutional provisions and principles. There are, essentially, two distinct questions: who a state has appointed as its presidential electors, and how those electors have voted. With one notable exception, Congress is properly bound to the outcome from the states on the former question. On the latter, Congress (and only Congress) can properly consider the rare scenarios where validly appointed electors have cast invalid votes: by voting for an ineligible candidate, for example, or failing to cast their votes according to the procedures spelled out in the Twelfth Amendment.
One of the problems with the existing ECA is how the distinction between these two kinds of objections has been muddled. Most notoriously in 2021, but also in 2017, 2005, and 2001, objections were attempted ostensibly on the grounds that electoral votes had not been “regularly given,” but in fact these objections challenged the validity of the electors themselves (based on disputes about the underlying popular election results in a state, which are then used to decide which party’s slate of elector candidates gets appointed). These objections should have been reckoned as “lawfully certified” objections, in which case they would have been out of order for impermissibly challenging the timely and definitive certification by the states on that question. By instead framing their objections, inaccurately, as “regularly given” challenges, the objectors were able to evade the intended constitutional and statutory limits on Congress’s powers during the count.
Defining “Lawfully Certified” Electors
The ECRA draft attempts to tie “lawfully certified” objections back to what it terms, in a somewhat unwieldly mouthful, each state’s “certificate of ascertainment of appointment of electors” as provided for under a prior section of the bill. Put more plainly, this means Congress is supposed to simply accept who the state says it has appointed as electors, which is a process that unfolds under state law, with any disputes litigated through the courts for a definitive ruling before the matter reaches Congress. One of the goals of ECRA is to both streamline the judicial procedures for litigating elector appointment controversies and then to bind Congress to accepting that outcome. This reflects the Constitution’s command that states appoint electors and do so in a manner of their own choosing, limited only by the time Congress has directed for doing it.
The likely intent here is to permit such objections only if somehow, in violation of the law’s other provisions, electoral votes were presented to Congress cast by somebody other than the state’s duly certified electors. In this regard, the objection provision functions as a kind of fail-safe, only to be used in very narrow circumstances if something else has gone terribly wrong with the process. It is not supposed to be used to challenge the content of the state’s elector appointment certificate, which would undermine the whole purpose of providing a process for that certificate to be binding and conclusive. Rather, it is only to be used to enforce the appointment certificate. But this point could be made more clearly than the current ECRA draft’s somewhat confusing language.
There is also an additional wrinkle here. There is one additional kind of objection that falls under questioning the “lawful certification” of a state’s electors but is not otherwise addressed by previous steps in the process. This concerns compliance with the following provision in Article II, Section 1: “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
States have, at times, been careless with regard to this often-overlooked provision. A state legislator or party official who is also an officer in the Army Reserve, for example, or is an administrator at the local Social Security office, would probably qualify as holding “an Office of Trust or Profit under the United States” and thus should not be an elector. This is the only rule in the Constitution under which Congress could legitimately refuse to accept an elector who has otherwise, indisputably, been properly appointed by a state. Unlike disputes based on which party’s ticket really won a state’s popular election, such an elector eligibility challenge would not be clearly addressable under the usual process for post-election litigation.
Ideally, if a state finds that it has inadvertently appointed an ineligible elector, it should correct this problem under the state’s procedures for filling a vacancy among the electors, correcting the mistake before the Electoral College meets and casts its votes in mid-December. Depending on the exact rules a state has adopted, that could mean appointing an alternate elector who has previously been designated as a backup, or allowing the remaining electors to choose someone to fill the vacancy. But if an ineligible elector nevertheless casts a vote, Congress would be within its proper constitutional role to reject that appointment and refuse to count the resulting vote.
Structuring the rule for “lawfully certified” objections to cover both of these two scenarios—an ineligible elector, or a purported elector who was not actually named in the state’s appointment certificate—would also neatly resolve another thorny issue. For these two cases also cover the cases where Congress would properly not count such invalid electors as among the “whole number of electors appointed,” a majority of whose votes are required to win the Electoral College and avoid a contingent election in the House (for president) or Senate (for vice president). If Congress finds that no such elector was, in fact, validly appointed, then they do not count for that purpose. If, on the other hand, a validly appointed elector has cast an invalid vote, such an elector would still count for determining the needed majority.
Taking the current format of the ECRA draft and tweaking it to reflect these recommendations would produce language something like this:
(ii) GROUNDS FOR OBJECTIONS —
The only grounds for objections shall be as follows:
(I) that one or more of the purported electors who have signed the certificate of votes are not among the persons lawfully certified in the State’s certificate of ascertainment of appointment of electors according to section 5(a)(i), or that one or more of the persons so certified are constitutionally ineligible to be an elector.
Defining “Regularly Given” Votes
With “lawfully certified” objections properly cabined, the bulk of possible objections would then fall under claims that certain electoral votes were not “regularly given.” This phrase, too, is a term of art. Derek T. Muller of the University of Iowa has produced a thorough and well-documented explanation documenting the history of how the term was used and understood in 1887.
The key point is that whereas “lawfully certified” refers to the validity of the electors, “regularly given” refers to the validity of their votes. The claim that a vote has not been regularly given, then, depends on the handful of specific constitutional rules that spell out when an electoral vote might be invalid even though it was cast by the correct, duly chosen elector.
These rules include candidate eligibility: a vote cast for a presidential candidate who is younger than thirty-five years old, for instance. It would also cover the Constitution’s requirements that presidential electors must meet and cast their votes on the same day throughout the United States, that they must sign and certify their votes in the form required by the Twelfth Amendment, and that they may not vote for candidates for president and vice president who both live in the same state as the elector.
One option, which I outlined in my Cato policy analysis on ECA reform, would be to simply enumerate each of these discrete constitutional rules which electors must follow. While this would still be my first preference, it’s understandable to be a bit wary about getting such a list precisely right so that it is neither under-inclusive (by not permitting Congress to reject a clearly unconstitutional vote) nor over-inclusive (by wrongly allowing Congress to reject a constitutionally valid vote). The exhaustive nature of enumerating the valid grounds for objections is an important part of getting ECA reform right.
There is, however, a simpler option. That would be to simply define “regularly given” in categorical terms, reflecting the understanding clearly intended by both the authors of the 1887 ECA and the 2022 ECRA. Rather than trying to list each constitutional rule which a vote could conceivably violate, this approach would simply require that the objection allege an objection of this nature, and require the objectors to cite the constitutional provision they alleged has been violated. Most importantly, this would make it clear that “regularly given” objections are not challenging the identity of the electors, thus closing off any backdoor attempts to evade the separate process for determining that question.
Such a provision would look something like this, picking up from where the block quote above leaves off:
(II) that a vote or votes cast by one or more lawfully certified electors have not been regularly given, because they are in violation of a specified provision of the Constitution regarding the meeting and voting of the electors, or the form in which their votes are to be transmitted, or for whom the electors may vote as President and Vice President.
Conclusion
It is a testament to the good work of the ECRA’s drafters that their bill has largely followed the nuanced (and admittedly sometimes confusing) distinction between objections to electors and objections to electoral votes. Properly construed, the terms “lawfully certified” and “regularly given” would already adopt the correct substance on that matter.
However, it is important as a practical matter to repudiate the faulty interpretations of these terms that Congress has permitted in the past. Doing so would ensure that the rules for the joint session of Congress are plainly understandable, without the need to refer to outside scholarship and commentary on what “lawfully certified” or “regularly given” really mean. More importantly, it would ensure that these rules of procedure fit neatly with the law’s other provisions, functioning as a harmonious whole without conflict or contradiction.
