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

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.”