There's no stipulation that a losing candidate has to concede
It's purely by tradition and custom
The prospect of election night drama seems to dwindle with each new round of polling. But Donald Trump, perhaps trying to author a campaign cliffhanger, is determined to provide Americans with at least a measure of “suspense” on November 8.
Barring a remarkable turnaround – “Brexit times five” as Trump put it last week – Americans will begin their post-election Wednesday with a President-elect Clinton on the horizon.
But whether her opponent sees fit to embrace defeat and publicly concede is mostly immaterial.
“It doesn’t have any independent legal effect,” said Rick Hasen, a University of California-Irvine professor who runs the popular Election Law Blog. “If he concedes or he doesn’t concede, the votes totals will be what they will be.”
Recounts are triggered automatically in 20 states and the District of Columbia when the margin of victory is sufficiently narrow, according to different laws in each of those states. The parameters vary – in Florida and Pennsylvania, it’s a margin of 0.5% or less of the total vote, while Michigan requires a deficit of 2,000 votes or less.
The most notable recount in recent times, after the 2000 presidential vote in Florida, began not – as the Trump campaign has suggested – at the behest of a litigious and sour Al Gore, but in accordance with the state’s predetermined rules for sorting such a narrow vote.
In all, 43 states “permit a losing candidate, a voter, a group of voters or other concerned parties to petition for a recount,” according to the National Conference of State Legislatures. But at least a few require the loser to meet some benchmark, like in Idaho where requests are only heard if the margin is less than 0.1%.
Ultimately, the identity of the new president will be certified by the House and Senate, where electoral votes are traditionally delivered in early January, and formally signed off on by the President of the Senate – in this case, Vice President Joe Biden. Gore, like Richard Nixon four decades earlier, literally sealed his own fate.
Trump’s will likely be settled way before then, but even if the 2016 drama bleeds into next year, it’s unlikely to turn on what he says or doesn’t say – no matter what he claims now.
During the third presidential debate, and in speeches and tweets before and after, the Republican nominee has repeatedly hinted, if not outright declared, that he has no intention of conceding a lost race to Hillary Clinton.
“I will look at it at the time,” was Trump’s debate response last week when moderator Chris Wallace of Fox News asked if he would, come what may, “absolutely accept the result of this election.”
Wallace tried a second and third time in that exchange, temporarily playing civics teach and reminding the candidate of the virtues of a “peaceful transition of power,” before Trump put the question to bed.
“I will tell you at the time,” Trump said again. “I’ll keep you in suspense.”
But the reality here, to steal a line from The Sopranos, is that the Trump campaign’s end – no matter how or when it arrives – “won’t be cinematic.”
Hasen said that while Trump is already undermining “part of the fabric of our society” with his comments, the knock-on effects are likely to be more mundane.
“At the extreme, his claims could encourage his supporters to take to the streets, perhaps to even to engage in violence,” Hasen told CNN. “More likely though it will become a rallying cry to try to delegitimize the Clinton presidency before it even begins. And to make it harder for her to pursue her agenda.”