In the final presidential debate, Donald Trump suggested that if he lost, he might not accept the results of the election and would not concede to Hillary Clinton. But is a concession actually required to finalise an election?
Illustration by Sam Woolley.
In a word: no. A concession is not required from the loser for the winning candidate to be sworn into office. Instead, they’re merely a political norm that provide a sense of closure for both campaigns. A concession is nothing more than a means to foster a peaceful end to a months-long (and often, as in this case, bitter) campaign. However, that doesn’t mean concessions aren’t important. Not making a concession speech could still have serious repercussions.
Historically, when a candidate loses, they graciously accept the results, call their opponent privately, and then concede their loss publicly.
In US politics, this process started in 1860 when Stephen Douglas publicly acknowledged his loss to Abraham Lincoln in a speech that would eventually be quoted by Al Gore in 2000. As for privately contacting the winner, the first to do that was William Jennings Bryan, who after losing to William McKinley in 1896, sent him a telegram. The first to do both, a public and private concession speech, was Al Smith, who lost to Herbert Hoover in 1928.
In America’s history, no modern major presidential candidate has refused to concede after losing. The closest we’ve seen in recent history was in 2000, when Al Gore called George W. Bush to concede after the media called Florida for Bush, but then called Bush back to withdraw that concession after it was clear the votes in Florida were closer than it initially looked. Eventually, 36 days later, after the Supreme Court ruled against a recount, Gore conceded.
Perhaps the most contested election in history was in 1876 between Rutherford B. Hayes and Samuel Tilden. Here, 20 electoral votes were disputed in four states: Florida, Louisiana, South Carolina, and Oregon. Each party was convinced they had won. In the end, instead of a massive recount, the two candidates agreed to the Compromise of 1877, where Hayes was awarded the White House in exchange for agreeing to retract military troops from former confederate states. Even though that election was contested, Tilden did still eventually concede.
There have been other quirks in this process. Charles Evans Hughes reportedly waited a couple weeks before he sent his concession to Woodrow Wilson. It took two weeks for James Blaine to concede to Grover Cleveland because Blaine waited for the official full count of the votes before accepting his loss. Nixon decided to wait until the next morning to concede to Kennedy, even though most people had called the election. Nixon, of course, had a history of being cranky with the press with his “You don’t have Nixon to kick around anymore” concession speech after he lost the governor’s race in California in 1962. For a situation that’s a little closer to this year’s election, Barry Goldwater conceded to Lyndon Johnson after a landslide loss in 1964, but vowed to continue the fight against Johnson.
Even if you concede, you don’t have to do so nicely.
Back to today, there are a few things to consider regarding Trump’s potential refusal to accept the results of the election. Elections aren’t technically over until all votes are certified and the Electoral College meets to cast their votes on the Monday after the second Wednesday in December (that’s the 19th this year). Based on his statements, it’s possible that Trump wouldn’t concede until this happened, just to prove a point.
Of course, things change if there’s a reason to think the election results have been tampered with, either through fraud or other irregularities. In that case, the burden of proof is on the accuser to support claims of fraud, and enough claims to influence the outcome of the election. 43 states allow for recounts. If Trump, or any other candidate, has evidence of tampering, litigation or a forced revote is an option in states where the vote is close.
Even if Trump decides not to accept the results of the election or publicly concede, others might just do it on his behalf. According to law professor and author of Ballot Battles: The History of Disputed Election in the United States, Edward Foley, that would likely fall on House Speaker Paul Ryan or Senate Majority Leader Mitch McConnell. There’s a reasonable chance that most members of the Republican Party would follow suit, effectively ending the shenanigans without Trump saying a word.
Of course, it’s not always that easy. While it legally and politically doesn’t matter if Trump accepts his loss, there is potential for a fallout if his supporters follow suit, with protests and demonstrations being the most likely move. That’s a situation that’s impossible to predict at this point, but it’s still something worth considering as the US inches closer to election day.