What Happens if Neither Trump Nor Biden Concedes?
Our
system offers many offramps from the road to disaster. Whether we take one is
another question.
By Daniel Larsen
Dr.
Larsen is a historian.
- Nov. 1, 2020
With a president refusing to commit to a peaceful transition of
power, a number of commentators have been sounding the alarm about a “rickety” U.S.
electoral system seen as uniquely vulnerable to a
postelection crisis. Legal scholars and a group called the Transition Integrity Project have been examining
the ways in which the machinery could fail, and the
nightmare scenarios gamed out are
hair-raising. But while looking at points of possible legal failure is a useful
exercise, it neglects an important question: Who has the power to concede?
Ultimately, all democratic transitions
are based on one side being willing to concede power to another. Without a
concession at some stage, power must be allocated by force: Either the military
must decide, or there is civil war. There is growing concern that the United
States may be arriving at a moment where a concession is no longer achievable —
but if this is the case, this is ultimately a problem with the state of
American politics, not its legal
machinery.
To the extent that the electoral
machinery matters, the American system is in many ways surprisingly robust. In
ordinary presidential systems elsewhere, an election commission announces the
outcome. Then, the political spotlight shifts immediately to the defeated
candidate, who must make the crucial decision: Will they accept the result? It
is a democracy’s most defining and most perilous moment.
By comparison,
America’s electoral machinery, for all its oddities and flaws, offers
greater systemic safeguards. What elsewhere is a single decision by an
individual is in the United States spread out over up to two and a half months,
set within a labyrinthine array of legal
procedures — procedures that vest the power to concede in a vast number of
actors across the constitutional system.
Any presidential election in the United
States takes place in two stages: the vote-counting
stage at the state level ahead of the Electoral College vote in mid-December,
and a second stage in January when Congress counts the electoral votes.
The first stage involves innumerable
local and state officials and courts. If even a small number of these actors
break partisan ranks, they can effectively concede the election: a governor
that certifies results supporting the opposing party, a judicial ruling that
both sides agree to obey.
State legislatures in the United States
have an untested reserve
power that allows them to ignore their state’s vote and appoint electors
themselves. This has been portrayed as
a grave danger to the
system, providing yet another way for a presidential election to go off the
rails. But it also serves to imbue even more actors within the system with the
power to concede. A very small group of state legislators can break partisan
ranks and yield an election on behalf of a presidential candidate.
The 2000 election was arguably the
closest in history, decided by Florida by a margin of one one-hundredth of one percent, so
close that we will never know who
the true winner of the state was: Media recounts months later concluded that the results would
change depending on which counting method was used. Even so, a concession occurred
before the second stage.
That next stage, when
Congress convenes in January to count the electoral votes, provides further
opportunities for concession. If a state’s electoral votes are disputed, the
House and Senate meet separately to
adjudicate the controversy. A potentially small number of representatives or
senators can break rank, conceding the election by agreeing to resolve the
dispute in favor of the other party. There is a potentially dangerous legal ambiguity here:
If the House and Senate arrive at different decisions, the law governing the
proceedings is unclear about how to reconcile them, with the potential for an unresolvable
constitutional deadlock. But while legally dangerous, politically this
ambiguity — along with the deadline of Inauguration Day — only serves to
ratchet up the pressure to fold. The vice-president, who presides over the vote
count, may have a last opportunity to concede a disputed election by choosing
to resolve this ambiguity in favor of the opposing party. The process
culminates in an official pronouncement of the next duly elected president
by the vice-president, with the speaker of the House by his side.
Only once has a disputed electoral vote
count reached the second stage. In the 1876 election, Congress invented a procedure to
resolve the crisis, punting the disputes to an appointed commission.
The House and Senate could vote on the
commission’s recommendation — but if the two houses disagreed, the commission’s
decision would stand. The commission first recommended, on an 8-to-7 partisan
vote, that Florida’s disputed electoral votes be allocated to the Republican
candidate, Rutherford B. Hayes. But while the Republican Senate endorsed the
recommendation, the Democratic House rejected it. The pivotal moment came
immediately afterward: With the speaker of the House at his side, the
vice-president announced that
the commission’s decision stood. The Democrats accepted the call; they allowed
the count to continue.
This was the first crucial part of
concession. A few weeks later, the vice-president, with the speaker at his
side, would oversee the completion of the count, and proclaim Hayes as
president. A threat of chaos after Inauguration Day was the Democrats’ only
remaining weapon. Hayes provided certain reassurances,
though the nature of those
reassurances — the “Compromise of 1877”
— is still disputed by historians today. Among them, however, appears to
have been a promise regarding three Southern states where Black Republicans
still held political power, protected by federal troops. Following 1877, the
troops’ protection was withdrawn and white Democrats took control, with lasting
consequences.
America’s electoral machinery provides
many, many opportunities to find concession. But fundamentally, it still must
be one of the parties that defers. Candidates must show a willingness to step
back from the precipice. The nightmare scenarios necessarily presume that not
only might a candidate reject the election result, but that an entire party
will do so at every level within the system. If this comes true, the American
experiment is probably over in any case.
If the American experiment is finished, the
United States’ unusually complicated electoral machinery merely guides how it
would end: Elsewhere, an aspiring autocrat must corrupt or defy an electoral
commission to kill a democracy. Determined Americans could kill theirs through
obscurities of constitutional hardball.
Peaceful transitions of power require
political will. In the end, people on one side must step back from the brink.
If history is any guide, they will.