WHEN A PRESIDENT REFUSE TO CONCEDE
Van Jones a lawyer and a CNN political commentator.
Explains why the customary concession speech is one of the most important safeguards for democracy, Jones exposes shocking legal loopholes that could enable a candidate to grab power even if they lose both the popular vote and the electoral college — and shares what ordinary citizens can do if there’s no peaceful transfer of power.
Why Take Ballot Counts To Court?
Trump has filed several lawsuits in swing states, in a strategy that hinges on a unique dynamic of this year’s vote. Because of the coronavirus, a record 65 million-plus ballots were cast by mail. Democrats were more likely to vote by mail this year, so these ballots have thus far has favored Joe Biden. That means results coming in on Election Day tended to favor Trump but shifted as absentee ballots were counted—It’s called the “red mirage.” Donald Trump has seized on this to falsely allege widespread fraud. So far, the courts have mostly not sided with him, but even one favorable ruling by a state supreme court could lead to a battle that makes its way to the US Supreme Court.
There’s precedent when a president refuses to concede. In 1960, Richard Nixon conceded despite contested results in Illinois, and in 2000 Al Gore conceded to George W. Bush US election after the Supreme Court’s 5-4 decision halting a Florida recount. To succeed in his legal challenges, Trump would need to provide evidence of fraudulent ballots in specific precincts.
Throughout the nail-biting vote count, Trump has made clear that he wouldn’t consider a victory for Joe Biden legitimate. In a rambling press conference, Trump made baseless claims of corruption and fraud. “If you count the legal votes, I easily win,” he said. “If you count the illegal votes, they can try to steal the election from us.” Whether Trump would ever give Biden a congratulatory or concessionary phone call is very much an open question.
What if a US presidential candidate refuses to concede after the presidential election 2020? Most immediately, not much. There’s no law requiring a written or verbal handover of the presidency between an incumbent and their successor. It’s true, although no presidential candidate in modern history has refused to concede, USA TODAY previously reported. Trump refusing to make that call is sort of like an athlete refusing to shake hands at the end of a game: poor sportsmanship, but otherwise not absolutely essential. It’s really hard to think of Trump seated behind Biden at an inauguration ceremony as Biden is sworn in.
Still, there are plenty of ways past diplomacy, as we will see, in which things could get complicated. In August, the Transition Integrity Project (TIP)—a bipartisan group of 100 current and former senior government officials and election experts—released a report outlining in considerable detail how a contested election might play out (pdf). Here’s a few Scenarios:
Electoral College Vs Popular Vote
States allow the popular vote to determine the appointment of electors, but Trump and his allies could use friendly state legislatures and governors to send alternate—or in the case of states with Republican legislatures and Democratic governors, additional—electors. When the electoral college convenes on Dec. 14, states with competing electors would cast double their allotted votes, forcing Senate president Mike Pence to figure out what to do with the doubled-up votes. If Pence threw out the extra votes and neither candidate hit 270, the decision goes to the House. There, each state delegation gets one vote; currently, in 27 states, a majority of delegates are Republican.
Theoretically, House Speaker Nancy Pelosi could prevent members of the House from entering the chamber to witness Pence’s vote count, which must happen “in the presence of” the governing body. If she announces plans to stall indefinitely, like through Inauguration Day, she could then claim her own right to the presidency through the line of succession.
Even Those Scenarios Aren’t Mutually exclusive
Biden could still win, Pence could use conflicting electoral votes to assert a Trump victory, and Pelosi could stall her way into a technical win unless Pence accepts Biden’s victory. All three claims to the presidency would be supportable.
In all of these scenarios, a good deal depends on how GOP officials contend with Trump’s strategy. Some of the more alarming scenarios mapped out by TIP—including a Trump attempt to federalize and deploy the National Guard—may lack for Republican support. Already, members of the party are distancing themselves from Trump’s denigrations of the election process.
Of course, there’s also the possibility that Biden wins, the courts confirm it, and Trump simply refuses to leave the White House in January 2021. The Constitution doesn’t leave much wiggle room on this front: The 20th amendment says that “The terms of the president and vice president shall end at noon on the 20th day of January, and the terms of their successors should then begin.” “I think we would have that Nixonian moment where a leadership team would travel to the White House to declare, ‘Mr. President, it is over,’ ” Michael Steele, a former Republican National Committee chairman who participated in TIP exercises, told the Boston Globe. And of course, the Secret Service or the US Marshals could at that point boot private citizen Trump as a trespasser.