Published by The Lawfare Institute
in Cooperation With
Losing U.S. presidential candidates have time and again set aside partisan differences—and sometimes deep personal animosity toward the victors—to accept the results of contentious elections. Some also-rans struggled with a sense of disbelief about the outcome or pursued limited recounts, but all nevertheless seemed to come around and acknowledge reality.
In a year filled with threats to other presidential norms, the 2020 election also presents a challenge to this tradition of concession. President Trump and Vice President Pence have both failed to affirm that they will accept the results of the election.
Back in July, for example, Chris Wallace of Fox News asked Trump to give a direct answer that he would accept the election results. “I have to see,” the president replied. “I’m not just going to say yes.” Then, in September, Trump told reporters at the White House, “We’re going to have to see what happens” when asked to commit to a peaceful transfer of power. He added, “You know that I’ve been complaining very strongly about the ballots, and the ballots are a disaster.”
Vice President Pence got in on the act at his only debate with Sen. Kamala Harris on Oct. 7. Moderator Susan Page asked Pence, “If Vice President Biden is declared the winner and President Trump refuses to accept a peaceful transfer of power, what would be your role and responsibility as Vice President? What would you personally do?” He offered up a number of replies, ranging from “I think we’re gonna win this election” to “We have a free and fair election” to “I believe in all my heart that President Donald Trump’s gonna be reelected for four more years.” But all his protestations had one thing in common: avoiding a commitment to accept the election’s results.
In light of these comments, it’s worth revisiting how strong of a norm concession truly is. If nothing else, it’s valuable to see whether the popular retelling of this history is erroneously shaped by the fact that history is so often written by the victors—a victor’s retelling of an election may well lead students of history to believe that the losers always acknowledge electoral outcomes.
Among the many cases that come to mind when musing about contentious presidential elections are one before the Civil War, another in which a candidate was nearly assassinated, and two of the five most recent contests:
- Stephen Douglas, despite saying during the 1860 campaign that the South would “never submit to such humiliation and degradation as the inauguration of Abraham Lincoln,” did not object to the outcome of the election. In fact, with the country on the brink of literal bloodshed over slavery and succession, he spoke with grace: “Let us lay aside all partisan feeling,” he said. “Let no grievances, no embittered feelings impair the force of our efforts.”
- Theodore Roosevelt abided by the results in 1912—a tumultuous election year, which included his taking a would-be assassin’s bullet before a campaign event in Milwaukee. He reacted to his loss by saying, “The American people by a great plurality have decided in favor of Mr. Wilson and the Democratic Party. Like all good citizens, I accept the result with entire good humor and contentment.”
- Al Gore, after the protracted recount and legal battle in Florida, accepted the 2000 election results. With a tongue-in-cheek reference to his withdrawn concession to his opponent back on election night, Gore on Dec. 13 said, “Just moments ago, I spoke with George W. Bush and congratulated him on becoming the 43rd president of the United States, and I promised him that I wouldn't call him back this time. ... I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession.”
- And Hillary Clinton didn’t challenge Trump’s victory in 2016, despite the unprecedented level of Russian intervention on behalf of her opponent. Instead, she accepted the outcome: “I still believe in America and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead. Our constitutional democracy enshrines the peaceful transfer of power and we don’t just respect that, we cherish it.”
But two other extraordinary presidential contests deserve more attention than these, because of how easily the losers could have led their followers down the road to violence by choosing not to accept their losses.
In the election of 1824, Andrew Jackson led the other three significant candidates in both the popular vote and the Electoral College but lacked the majority needed in the latter to win the presidency outright, sending the decision on who won the contest to the House of Representatives. There, Henry Clay—whose fourth-place finish in the electoral vote removed him from contention, but whose control of three states’ delegations gave him immense power—threw his support to John Quincy Adams, enabling the latter to take office in March 1825.
Jackson and his supporters fulminated against Adams and Clay’s perceived dirty deed, especially when Adams later nominated Clay to be secretary of state. Jackson wrote to a colleague that “the Judas of the West has closed the contract and will receive the thirty pieces of silver. His end will be the same. Was there ever witnessed such a bare-faced corruption in any country before?” Jackson-allied press labeled Clay “morally and politically a gambler” and even called him a “traitor” who should be tarred and feathered. Jackson and his partisans fumed.
But it’s worth noting what they did not do. Despite the unprecedented, nearly cult-like personal popularity of Jackson, Jackson did not reject the election results and try to use his popular movement to force a change to the election’s result. In fact, Jackson took a higher road by writing, “By me no plans were concerted to impair the pure principles of of our Republican institutions, or to prostrate that fundamental one which maintains the supremacy of the peoples [sic] will.” Country, to simplify Jackson’s words, mattered more than party.
An even more telling example comes from the election debacle of 1876. The Republicans, coming off of 16 straight years in the White House, nominated Ohio Governor Rutherford Hayes, a former Union army officer and member of Congress. He showed no interest in an active or energetic campaign, taking a hands-off approach with but one public appearance that fall, at the Centennial Exhibition in Philadelphia. Democratic candidate Samuel Tilden, by contrast, brought unprecedented anti-corruption credentials to the contest and adopted the most effective campaign literature printing-and-mailing effort the nation had ever seen—putting his chosen narrative directly into the hands of tens of millions of voters.
In a record that stands today, 82 percent of eligible voters turned out to vote—and Tilden had more than a quarter of a million votes more than Hayes out of the eight million ballots cast. By the time polls closed on the West Coast, Tilden already appeared to have 184 electoral votes in hand, just one short of the magic number for victory. The New York Tribune’s headline read, “Tilden Elected,” and Hayes reportedly believed the race was over: “I never supposed there was a chance for Republican success.”
But Republicans realized quickly that they could control, or at worst buy off, the election boards tallying the votes in South Carolina, Florida and Louisiana. In a burst of masterful expectations-setting, the Republican national chairman boldly declared the morning after the election, absent any factual basis, that Hayes had won 185 votes and would be the next commander in chief. Tilden’s supporters cried foul, especially after the Republican-leaning state returning boards proceeded to toss out enough Democratic votes to award the electoral votes in South Carolina, Florida and Louisiana to Hayes. But competing election certificates came in from different state authorities, prompting the federal government to create an electoral commission of five representatives, five senators and five Supreme Court justices to decide what to do about the disputed returns. That commission ultimately gave all the electoral votes from the undecided states to Hayes—leaving Tilden out of the office he’d almost certainly won.
Tilden’s supporters, building on their outrage since Election Day, threatened force with shouts of “Tilden or blood!” They sent their cheated leader telegrams with messages such as “If you say the word, 50,000 Louisianans will take up guns for you,” while members of Democratic state and county committees enrolled “minutemen” in case war broke out.
Tilden, however, rejected disorder. While his partisans called for direct action, Tilden spent most of December writing a long, scholarly report, which contributed nothing to the outcome, on the history of electoral ballot-counting. Far from galvanizing him, entreaties to violence only bolstered Tilden’s resolve to keep calm and respect the system that had failed him. “Be of good cheer,” he told a dinner crowd months after Hayes took office. “The Republic will live. The institutions of our fathers are not to expire in shame. The sovereignty of the people shall be rescued from this peril and re-established.”
In both 1824 and 1876, latent tensions could have escalated to blood in the streets with the slightest signal from Jackson and Tilden, respectively. But instead of channeling their disappointment about their defeat into rejecting the result itself, even these rejected candidates went along with the constitutional system and conceded.
There are, unfortunately, many differences between 2020 and these 19th century contests. Perhaps the most relevant is that this time, the presidential and vice presidential candidates who appear poised to not accept the election results are the incumbents. Neither Jackson nor Tilden enjoyed the privileges and power that come with incumbent status.
And counterintuitively, it’s Pence’s status as incumbent vice president that may matter more than Trump’s as incumbent president. In virtually every other situation, the presidency is everything and the vice presidency is virtually nothing, but an incumbent vice president hell bent on disruption is perhaps in a more powerful position than the president to throw a wrench into the gears of the electoral count. That’s because the 12th Amendment directs the vice president, as president of the Senate, to preside over the joint session of Congress that counts the electoral votes and to “open all of the certificates” received from the states, after which “the votes shall then be counted”—constitutional language that some observers might read as giving the vice president a substantive role in the process.
Congress—most notably through the Electoral Count Act of 1887—has tried to cabin any capacity for such mischief by severely constraining the format and duration of the proceedings, as well as what the vice president might do while presiding over that session.
And the process has usually gone smoothly when the joint session of Congress meets several weeks after the election to count the electoral votes. For example, even after the 2000 election drama, outgoing Vice President Gore presided honorably over the electoral vote count that formally elected his opponent, ruling that objections from House Democrats about Florida’s electoral votes could not be heard because he read the federal rules to require that any such objection also have a senator’s signature.
But uncertainties remain—especially if there are disputed certificates from certain states. If nothing else, a deeply obstinate vice president might attempt to prevent the process from moving forward altogether, leaving the presidency and vice presidency vacant when the incumbents’ terms end on Jan. 20, 2021.
These desperate moves may seem unlikely. But careful observers have no choice but to consider them, because the 2020 incumbents have refused to commit to accepting the election results. Even if violence on the streets can be avoided, as it was after the 1824 and 1876 elections, bad-faith actors intent on disrupting a smooth election can do violence to the norm—and, as a result, to the constitutional order.