Comment: Trump’s refusal to concede is legal; and damaging

Trump again breaks a norm by not recognizing the election results and allowing a transition to proceed.

By Noah Feldman / Bloomberg Opinion

President Trump’s refusal to concede defeat and allow an orderly transition doesn’t violate our Constitution, as his Republican allies have pointed out. But it does violate unwritten norms that have attained a quasi-constitutional status in American elections. His defiance is dangerous. Even without violating the letter of the law, Trump’s resistance has the capacity to undercut the democratic legitimacy of this election, and the election process as a whole.

From the standpoint of the Constitution (the 12th Amendment, if you’re following along at home), the transition to a new president doesn’t officially begin until the states send their slates of electors to be opened in the presence of the vice president and both houses of Congress. Once those electoral college votes are counted, the candidate who gets a majority “shall be the president.” This election cycle, the electors are supposed to vote in their states on Dec. 14, 2020. Congress is supposed to meet in joint session to count the votes on Jan. 6, 2021.

In fact, the modern practice of peacefully transferring power operates quite differently. Concession is usually triggered by a custom that appears nowhere in the Constitution, namely the decision desks of the TV networks and newspapers calling the election for the candidate who amasses an unbeatable lead. That custom has developed into a quasi-constitutional norm, one that has been followed repeatedly for many election cycles.

There is even a federal statute that arguably relies upon this norm without expressly mentioning it. The law that governs transitions says that the transition begins when the director of the General Services Administration “ascertains” the “apparent” winner of the election and issues a letter saying so, triggering the statute’s transition provisions. The statute doesn’t give the director of the GSA any guidance on how to ascertain the apparent winner, perhaps because the drafters of the statute — and those who have applied it — think it’s obvious: The winner is apparent by the consensus of the networks and newspapers, and the subsequent concession of the loser.

But Trump has refused to concede. His campaign has filed various weak and unconvincing legal suits in an attempt to change the outcome of the election. No credible legal expert believes any of them have a chance of succeeding.

The only optimistic thing one can say about these lawsuits is that they give Trump and other Republicans an off-ramp from the current course of refusing to acknowledge Joe Biden’s victory. Maybe, just maybe, Trump could concede when the last of these suits is dismissed by the courts and the Supreme Court refuses to review the dismissals.

But even after these toothless lawsuits come to their inevitable end, Trump may still refuse to concede. Frankly, it seems possible — even likely — that he’ll never concede. That would deepen the conspiracy-theory skepticism currently spreading among some Republicans, according to which Trump actually won the election.

That doubt is disastrous for the democratic legitimacy of U.S. elections; and hence the legitimacy of American democracy as a whole. The more people think you can’t trust the networks (including Fox News) and newspapers who have called the election for Biden, the harder it will be for people to accept Biden as the actual and legitimate president when he is sworn in.

No one can really say for certain whether Trump is seeking to undermine the legitimacy of the electoral outcome simply because he is a sore loser who doesn’t want to admit defeat, or because he actually believes he might be able to get a number of state legislatures to set aside the election results in their states to appoint a slate of pro-Trump electors. Maybe even Trump doesn’t know which it is.

My own view is that a scenario of legislative substitution of Trump electors is extraordinarily unlikely to happen, and even more unlikely to succeed. It would take hundreds of state legislators in multiple states deciding to engage in a coup d’état. And the courts, including the Supreme Court, would have to stand by and let it happen.

But even if he’s just being a sore loser, Trump’s breaking of the unwritten concession norms is very costly. The reason we need to rely on networks and newspapers is that the U.S. electoral system isn’t centralized. We don’t have a single national election inspection commission that could declare a presidential winner. Our aged and imperfect Constitution relies on unwritten customs and norms to make it function, and the concession norm is one of them.

Joe Biden is going to be sworn in on Jan. 20, 2021 and become the 46th president. But those realities are less reassuring than they might be. Trump has done extraordinary harm to the U.S. Constitution already. But the worst may still be yet to come.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

toon
Editorial cartoons for Tuesday, July 8

A sketchy look at the news of the day.… Continue reading

A Volunteers of America Western Washington crisis counselor talks with somebody on the phone Thursday, July 28, 2022, in at the VOA Behavioral Health Crisis Call Center in Everett, Washington. (Ryan Berry / The Herald)
Editorial: Dire results will follow end of LGBTQ+ crisis line

The Trump administration will end funding for a 988 line that serves youths in the LGBTQ+ community.

Comment: Students can thrive if we lock up their phones

There’s plenty of research proving the value of phone bans. The biggest hurdle has been parents.

Dowd: A lesson from amicable Founding Foes Adams and Jefferson

A new exhibit on the two founders has advice as we near the nation’s 250th birthday in the age of Trump.

Was Republicans’ BBB just socialism for the ultra-rich?

It seems to this reader that the recently passed spending and tax… Continue reading

GOP priorities are not pro-life, or pro-Christian

The Republican Party has long branded itself as the pro-life, pro-Christian party.… Continue reading

Comment: $100 billion for ICE just asks for waste, fraud, abuse

It will expand its holding facilities, more than double its agents and ensnare immigrants and citizens alike.

toon
Editorial: Using discourse to get to common ground

A Building Bridges panel discussion heard from lawmakers and students on disagreeing agreeably.

Senate Minority Leader Chuck Schumer (D-N.Y.) speaks during a news conference at the U.S. Capitol on Friday, June 27, 2025. The sweeping measure Senate Republican leaders hope to push through has many unpopular elements that they despise. But they face a political reckoning on taxes and the scorn of the president if they fail to pass it. (Kent Nishimura/The New York Times)
Editorial: GOP should heed all-caps message on tax policy bill

Trading cuts to Medicaid and more for tax cuts for the wealthy may have consequences for Republicans.

Alaina Livingston, a 4th grade teacher at Silver Furs Elementary, receives her Johnson & Johnson COVID-19 vaccine at a vaccination clinic for Everett School District teachers and staff at Evergreen Middle School on Saturday, March 6, 2021 in Everett, Wa. (Olivia Vanni / The Herald)
Editorial: RFK Jr., CDC panel pose threat to vaccine access

Pharmacies following newly changed CDC guidelines may restrict access to vaccines for some patients.

toon
Editorial cartoons for Monday, July 7

A sketchy look at the news of the day.… Continue reading

Comment: Supreme Court’s majority is picking its battles

If a constitutional crisis with Trump must happen, the chief justice wants it on his terms.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.