This is not a column about a case that’s pending at the Supreme Court — yet.
It’s about the nightmare scenarios surrounding the presidential election and its aftermath that could conceivably propel a case there. Such scenarios are being contemplated and written about with increasing urgency as President Trump ramps up his predictions of voter fraud, setting the stage for challenging the legitimacy of an election that he appears, at this point at least, likely to lose.
Trying to chase such thoughts from my mind only seems to magnify a growing free-floating anxiety to which I’ve recently attached a diagnosis: Bush v. Gore PTSD.
Anyone who lived through the denouement of the 2000 presidential election will understand what I mean; it’s hard to believe that an entire generation has come of age with no personal memory of what happened that cold December night nearly 20 years ago when a five-justice majority handed the presidency to George W. Bush. But I was there in the Supreme Court pressroom on Dec. 12, 2000, as the clock ticked down toward midnight and the country held its breath to see what would become of Florida’s 25 outcome-determinative electoral votes.
In the pressroom, we assumed that the justices, who had heard argument on the disputed Florida election only the day before, had voted and that they intended to issue their decision that night, in time to meet the statutory “safe harbor” deadline for a state to immunize its electoral-vote result from challenge in Congress. With six million Floridians having voted, George W. Bush was ahead of Al Gore by 537 votes. A decision might come at any moment, so no one dared to leave the small room. It became packed so tightly with reporters and television crews from around the world that my most pressing fear was that the enclosed space would run out of oxygen and we would all be asphyxiated.
And then it was over. At 10 o’clock, with an unsigned and barely rationalized opinion issued over four signed dissents, the court barred all further counting. The justices had left the building. All the public saw that night were television correspondents, bundled against the wind on the court’s plaza, frantically turning pages to try to figure out what to tell their audience.
Could something like that happen again?
Two weeks ago, Slate asked 10 election-law and constitutional experts to describe the scenario that “keeps them up at night.” Most of what they described couldn’t plausibly involve the Supreme Court — or could it? For example, Prof. Bruce Ackerman of Yale Law School conjured a meltdown in which the election is thrown into Congress and Vice President Mike Pence, as president of the Senate, and Nancy Pelosi, as speaker of the House, can’t agree on how to proceed and there is violence in the streets as Inauguration Day dawns without an agreed-upon president. The Presidential Succession Act would seem to make Speaker Pelosi the president under such circumstances. Would the Supreme Court feel moved to so declare?
Or suppose, as Daniel Carpenter of the Radcliffe Institute for Advanced Study at Harvard suggests in the Slate article, that Republican-led legislatures in potentially decisive states embrace the president’s claim of fraud and refuse to certify a clear Biden victory. Some of these states have Democratic governors or secretaries of state. What happens if each tries to block the other’s slate of electors?
The most fully developed dystopian forecast is a recently published book by Lawrence Douglas, a professor at Amherst College. Titled “Will He Go? Trump and the Looming Election Meltdown in 2020,” the book is most frightening not for its author’s fertile imagination about what could possibly happen but rather for its account of how few actual safeguards stand between order and chaos. “Nothing compelled Gore to concede,” Professor Douglas writes of the losing candidate’s rapid acquiescence to the Supreme Court’s decision. “Gore’s action reminds us of an essential truth: Our Constitution does not secure the peaceful transition of power, but rather presupposes it.”
And statutory law isn’t much more helpful than the Constitution, Professor Douglas points out. For example, the Electoral Count Act of 1887, which Congress enacted to avoid another crisis like the Hayes-Tilden debacle of 1876, fails to specify what would actually happen if an election was thrown into Congress amid a dispute over which electors represent a state’s vote.
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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Source: Elections - nytimes.com
