On the morning of 4th November, US President Donald Trump declared that he had “won it [the presidential election] by a lot”, despite the odds being stacked in his opponent Joe Biden’s favour – and despite the fact that not all ballots had yet been counted. Such a declaration is unprecedented, and raises questions about the future of the race. What, exactly, will happen if the incumbent US President refuses to concede the election if his opponent wins?
In September 2020, prior to the election, Senator Bernie Sanders predicted that an issue could arise relating to mail-in ballots during this year’s election and this has, indeed, come to fruition. Mail-in ballots, which are submitted prior to polling day by voters unable to attend polling stations on the day of the vote, tend to favour Democratic candidates. However, in multiple swing states such as Pennsylvania local Republicans amended the electoral rules to prevent mail-in ballots being processed before the count for ballots that are completed on polling day. Mail-in ballots are therefore counted last in these crucial battleground states. This means that early projections for some swing states, such as Wisconsin, Pennsylvania and Michigan, will inevitably favour a Republican candidate, but this may not accurately reflect the total vote in those states when all have been counted. In some cases, counting the millions of mail-in ballots can take days. It seems that, during this buffer period, while awaiting the final result, Republican presidential candidate Donald Trump has preemptively declared victory in some of these key battleground states, even though he may ultimately go on to lose the vote in these locations.
Worried that Trump may declare preemptive victory in a tightly contested election, or that he would refuse to concede, Republicans in the Senate passed a resolution earlier this year reassuring Americans there would be a peaceful transition of power should Trump lose the presidential election.
There is no requirement for a losing presidential candidate to concede verbally. So although concession speeches are a convention, they are not required in law. The tradition of the concession speech began in 1896, when William Jennings Bryan composed a telegram to Republican candidate William McKinley, congratulating him on winning the election. Al Smith delivered his concession speech to radio in 1928. Today, concessions are usually delivered via a televised speech.
So What Happens If Trump Refuses To Concede?
The US Presidency is not decided by direct election. Instead, it is decided by a small number of surrogate voters who act on behalf of large numbers of voters in individual states. When the US goes to the polls to decide its next president, US citizens are voting for electoral college representatives who will then go on to vote for a particular presidential candidate on their behalf at a meeting in mid-December. The way states allocate these proxy voters varies: in Maine and Nebraska, electors are distributed semi-proportionately. In the majority of states, however, proxy voters are allocated on a winner-takes-all basis. This means that if just over half of a state’s citizens vote for the Democratic candidate, all the state’s electors will go on to vote for the Democratic candidate. To win, a presidential candidate must obtain 270 electoral college votes. This makes winning marginal states that have high numbers of electors, such as Pennsylvania, key to victory. The electoral college system will become relevant later in this article.
The 20th amendment to the US constitution is clear: in law, the president’s term of office will (in the case of the 2020 election) automatically end at noon on January 20th 2021, inauguration day, whether or not Trump concedes. From that time onwards, assuming Joe Biden ultimately wins the 2020 election, he automatically becomes commander-in-chief of the US military. Secret service officials will, from then, work for Joe Biden and not Donald Trump: it is expected that if Trump refuses to leave the Oval Office, the relevant authorities will escort him away from the White House. However, some constitutional scholars have pondered whether Trump, as he suggested during a speech earlier this year, will deploy the military on inauguration day if he disputes the election result.
This scenario seems unlikely. The period between the election and inauguration day, is known as the interregnum, and it could provide plenty of opportunity for the Trump campaign team to cast doubt over the legitimacy of the result. So what is more likely are legal challenges issued from Trump’s campaign team during the interregnum in an attempt to challenge a Biden win.
The interregnum contains a number of key dates, all of which could be exploited to Trump’s advantage. The electoral college is due to meet on December 14th 2020, where electors will formally cast their presidential ballots on behalf of the general public. This electoral procedure isn’t formally ratified until the newly-elected Congress is seated in early January. On 6th January 2021, the House and Senate will meet jointly for this official count of the electoral college vote. Normally, these meetings are simply a formality – but if the Trump campaign decides to cast doubt over the legitimacy of the result, it may attempt to intervene in these proceedings. If that happens, this usually routine ratification meeting may become vital in determining the ultimate outcome of the election. Republicans look due to continue their control the US Senate, which makes up one half of Congress, thanks to this year’s state elections – this may cause gridlock during such an eventuality.
It is possible that Trump may request recounts in some states. Requests for recounts are permitted in 43 of the 50 states, but some states require the margin of error to be below a certain threshold before a recount can take place. States may also individually opt to disregard recount results. If this happens, the state’s electoral college elector votes are allocated at the meeting of Congress in January, during which the presidential election result is ratified. It is possible for state governors to intervene in the process of this allocation. State recounts may also ultimately be upheld or dismissed by the US Supreme Court, as happened in the case of the 2000 Presidential election, when the Supreme Court ended a recount of ballots in Florida, effectively forcing Democratic candidate Al Gore to concede the election. It has been noted that the US Supreme Court is stacked in the Republicans’ favour: conservative judges outnumber progressives 6 to 3.
The Biden team has long been wary that the Trump campaign may use legal interventions to dispute the legitimacy of a Biden win. For that reason, the Democratic Party’s lawyers were examining the election laws of battleground states, as well as the US constitution’s provisions for counting electoral votes, prior to the election in order to prepare them for such an eventuality.
Has A President Ever Refused To Concede In The Past?
No, but there have been contested elections that failed to be decided until shortly before inauguration day. The election of 1876 wasn’t decided until 48 hours before inauguration day, and the 2000 presidential election was decided in effect by the Supreme Court just six days before the electoral college convened.