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Opinion | Could the 2020 Election End Up at the Supreme Court?

The law says: “If more than one return or paper purporting to be a return from a state shall have been received by the president of the Senate, those votes, and those only, shall be counted which shall have been regularly given.” Regularly given? If regularity was clear, the election most likely wouldn’t have ended up in Congress in the first place.

In my observation, “What keeps you up at night?” has become a question almost as standard as “How are things?” used to be. I put that question the other day to Gary Hart, a former Democratic senator from Colorado. Along with fellow Democrat Timothy Wirth, also a former Colorado senator, he and a dozen other concerned and politically astute citizens recently formed a bipartisan organization they named Keep Our Republic. Its mission is to educate the public, largely at this point through op-eds, about current threats to democracy.

The prospect of an electoral meltdown is only one of the organization’s concerns, and not necessarily the main one. “The president’s secret powers,” was Gary Hart’s answer to my question. He pointed me to the work of Elizabeth Goitein, a scholar at the Brennan Center for Justice at New York University. Starting years before the Trump administration — this is not a partisan issue — she has studied the phenomenon of presidential “emergency action documents” that exist deep under the radar, ready to be invoked without congressional oversight or even notice.

The text of these documents, numbering between 50 and 60 by Ms. Goitein’s estimate, has never been released, and the powers the documents purport to grant the president have evidently never been invoked. They are thought to authorize such drastic actions as the presidential suspension of habeas corpus, warrantless searches and the imposition of martial law. The Keep Our Republic group wants congressional hearings to shine a public spotlight on this archive’s existence if not all of its secret specifics.

Something else to worry about, for sure. But it’s Bush v. Gore that haunts me. I have a full shelf of books about the case — on a high shelf, so I don’t risk seeing it by chance. I reached for a few of those books while writing this, just to check dates and facts. Even strong memories can prove elusive.

Of today’s Supreme Court justices, only three were on the court in 2000: Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. But the other six were all adults 20 years ago. They have memories, too. But do they have nightmares?

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