If Trump Never Concedes ...


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on October 14, 2016, 1:00 am

Chris Cillizza of the Washington Post's Fix observes that the escalation of Trump's rhetoric suggests that he's unlikely to concede defeat no matter what the results of the election show. 

I've been thinking about this possibility over the last several days, beyond what I wrote a a couple of weeks ago for Politico.

It's important to recognize a few points: 

 Election Night returns are not official certified results.  No matter how much of a blowout in favor of Clinton, both in terms of the national popular vote and the Electoral College, that Election Night returns show, our system does not require that a candidate--or a political party--accept them as a definitive statement of the outcome.  While we certainly have come to expect the tradition of the Election Night concession in the television era, especially when the results appear conclusive, it bears repeating that there is no official status to preliminary returns--and certainly none to the APs numbers.  In short, we don't have a constitutional crisis on our hands if we don't have a gracious concession on Election Night even if the result appears a blow out.   Our nation has withstood previous presidential elections in which the results were not known, and a concession was not forthcoming, until the canvassing of the returns were complete and the results officially certified.  The election of 1884 took two weeks for the canvass in New York to be complete, and with it the official verdict that Grover Cleveland had defeated James Blaine.  A similar situation occurred in 1916 as Charles Evans Hughes waited for completion of the canvass in California to confirm that he had lost to Woodrow Wilson.  Neither of these examples, moreover, were ones that stressed the system in the way that 1876 and 2000 did.  In other words, waiting for official results by itself does not constitute any serious threat to our democracy, which is far stronger than that. The key is the absence of violence. In both 1884 and 1916 there was no civil disorder as the nation peaceably waited completion of the official counting process.  Whatever Trump does or does not say--assuming preliminary returns do show him to be losing decisively--the country will not be in crisis as long as his supporters do not engage in violent protests.  To my mind, what will be key is the conduct and statements of Paul Ryan and Mitch McConnell as the leaders of the Republican party in Congress.  If they publicly concede that Trump has lost, and the media appropriately reports the significance of their concession, the nation's democratic system can take that as the requisite sign of closure, whatever antics Trump might engage in.  Remember, it is a joint session of Congress that constitutionally receives the Electoral College votes from the states under the Twelfth Amendment, and thus Ryan and McConnell have an official, constitutional role in congressional declaration of a president-elect.  If and when Ryan and McConnell make clear to the public their intention to exercise this role in service of the Republic, the media should report that as the functional equivalent of the election being over.  Mike Pence could also help in this process.  If he acknowledges defeat, that will go a long way to helping those who voted for the Trump-Pence ticket to achieve closure, even if Trump is steadfastly refusing to acknowledge what would then be the reality of the situation.   How much time should lapse before Ryan, McConnell, and Pence play this important role? Obviously, there will be intense media pressure for them to make concession-like statements on Election Night, especially if the results point to a Clinton landslide.  But it seems to me that it would not be inappropriate for them to wait to give Trump a chance to do the right thing. Of course, the more belligerent Trump's rhetoric, the more important it becomes for Ryan, McConnell, and Pence to come forward quickly with responsible statements of their own.   In sum, we have the capacity to navigate the situation even if Trump is inappropriately reckless after being defeated.  Given our constitutional system, one aberrational individual cannot destroy our country--particularly if that individual has lost the election.  (Finally, I'm obviously just assuming now that the Election Night returns may show a resounding victory for Hillary Clinton. Until we see what results the election actually brings, all these thought are simply by way of preparation.)

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Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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