Alright we’re going to kind of date this post from the top. At the time of writing, we don’t know who the American president is going to be once inauguration day rolls around in 2021. We also don’t exactly know how November 3rd is going to end (aka, we don’t know if a candidate has or has not conceded). What we do know is that the 2020 election likely will continue after the 3rd, as it’s not abnormal for votes to continue being counted after “election day” anyway. But this question has been floated around quite a bit–especially in the 2020 election cycle. So what happens if a presidential candidate doesn’t concede?
Conceding the Election
For the better part of the last century of American politics, presidential elections have become far more dramatic and campaigns run far more like shows. But those tuning into anything election related for the past few cycles knew that already.
Anyway, part of that drama is the final concession speech. Where a candidate, typically after it is mathematically impossible for them to win, concedes the election to the other. Legally or constitutionally, there’s actually no concession provision. There’s no reason we do it in America other than it’s just kind of a nice courtesy.
It’s considered that the first concession was in 1896, when William Jennings Bryan sent a nice telegram to William McKinley.
Hon. Wm. McKinley, Canton, Ohio: Senator Jones has just informed me that the returns indicate your election, and I hasten to extend my congratulations. We have submitted the issue to the American people and their will is law.
W.J. Bryan
Every election after 1896 had a nice little concession. It’s almost always about a celebration of democracy, and how even though they didn’t win they’re glad the will of the people was exercised and so on.
2000
Alright if you are at all involved in knowing American politics you’re probably thinking about the 2000 election. We’re not going to get into who should or shouldn’t have won that election, but we will say there was… A lot of wacky stuff going on. Also maybe some conflicts of interest in Florida? Also that time Al Gore told Bush to concede but then ended up conceding like an hour later?
2000 was weird.
Anyway, the point is, there was still a concession in 2000–despite the recounts and the election moving all the way up to the Supreme Court.
But remember–the presidential concession is not codified in any rule of law. It’s just tradition! When elections are in part a drama, the show needs a finale. Concession speeches give us a nice bookend to an election cycle before we move on to the next thing.
It’s also kind of about keeping the peace. A nice function of the concession speech is that it has the losing candidate’s supporters also accept the election results. Imagine the madness that would occur if a candidate (let’s assume they lost) decided to not concede. Then, after not conceding, they told the people still supporting them to reject the election and take to the streets, even though they categorically lost.
That wouldn’t be fun for anyone. Hopefully we can leave that to the imagination, but who knows in 2020 maybe it’s already started by the time you read this post.
So What Happens if Nobody Concedes?
Conceding definitely makes things a lot easier. If someone formally gives up, there’s not much reason to continue delving into bureaucracy. It’s like if you’re playing football and concede after the 3rd quarter. No reason to go to the next one after that.
Constitutionally, there’s no codified way for power to be peacefully transferred. It’s just something that has happened through most of American history, and something we just kind of assumed would happen.
That’s the crux of a lot of American politics. It’s mostly just hoping everyone is respectful enough either to each other, or to traditional norms, that the government functions. Not caring or otherwise sidestepping those norms is considered worthy of condemnation–but as Americans have seen–is not always entirely illegal. Sometimes it’s extralegal at best. Other times it is just illegal but we have no real ways of doing anything if enough people decide it’s illegal but they’re alright with it.
Continued Constitution
So election night, the popular vote has concluded. Typically it ends there when a candidate concedes. However, there are constitutional provisions to keep going after the popular vote. For starters, states have to certify the election, which could be a mess if a losing candidate launches an army of lawsuits. They could send an army of rival electors in an attempt to overturn the electoral college and all that.
But whatever, we’re not too interested in what a losing candidate may do to keep or grab power (depending on whether they’re the incumbent) for now. We are interested in what happens if the popular/electoral college vote is essentially deemed fraudulent by the government. This kicks the election to Congress under the 12th Amendment. House of Reps, all that.
Kicked to Congress
Once the election is kicked to Congress, it’s like the popular election never happened. While we would like to assume that they would respect the will of the popular vote here, there is no legal obligation on Congress for that to happen.
What’s more, individual Congress members don’t actually vote. It comes down to states. Which is a huge problem in representing the will of the people. For starters, the District of Columbia gets no say here. That’s over 700,000 people gone right out the gate.
But it doesn’t address how people are unevenly distributed across America as well. By this point, we’re basically saying the following to the 50 states: “y’all get one vote and whichever candidate gets 26 is the new president-elect.” Now, you’re probably thinking that sounds really wack. It is. For starters, some states have way more people than others. It’s already a problem that the popular election fails to address, and we talk about it in another post.
Further Reading: Are Some Votes Worth More than Others?
So you have states like California with almost 40 million people being weighted the same as, say, Maine. With only about 1.3 million people. There’s also some politics in play too. In 2020, the majority of people live in states that typically swing to the Democratic candidate–but these states, while representing far more people, are lower in number. By contrast, states that swing to Republican candidates are all spread out through the Midwest and South–but with far less people than coastal states.
Which means, if states vote on party lines (which is a running theme for the last couple generations in America), this essentially guarantees a Republican candidate takes the election–even if they had the minority vote from both the popular vote and the electoral college.
So What Can You Do?
Obviously, we’re not going to tell you who to vote for. That’s entirely your prerogative and your right as an American living in a (theoretical) democracy. After you read this post, your 2020 ballot will have been due, and hopefully you voted–but that’s the past so it’s neither here nor there.
But, wherever on the political spectrum you land, you’re hopefully on the side of democracy–otherwise you would probably wouldn’t like it too much here. Or maybe you do because America might not be a full democracy anymore?
If you’re voting, you know that a total landslide election will probably see the losing candidate’s supporters just walk away from them–no need to go down with the ship. So it’s important to still do that–even if the electoral college kind of undermines it a lot.
These kinds of shenanigans are if the election is rather close. If that happens, all bets are off. Call your local representatives, write to them, donate to political organizations, make your interests as an individual participating in a democratic civil society known. Democracies are fragile, and they can (and do!) fail. It takes a little bit from everyone to maintain a democratic system. If you personally believe that democracy should continue forward, then we’ll all have to do our part. Hey, if you have to take to the streets, remember they can’t stop all of us.
Further Reading: Can They Stop All of Us?
Oh, but also don’t be violent about it? We don’t condone violence on the blog. Also historically peaceful protests seem to be more effective in stopping coups anyway.
More election trivia here.
