In the system governing the election of the president of the United States there is a rather extravagant clause, which many consider a real constitutional flaw in one of the oldest and most solid democracies in the world. A candidate to be elected president must obtain the recognition of the loser. Without this act of concession from the challenger, a president cannot occupy the Oval Office in the White House.
In general, the victory of others is conceded with a telephone call immediately after the counting of the votes or even before they are finished, when the result is evident. There have only been two instances in U.S. history where a candidate did not voice the act of conceding on election night.
The American institutional system, which is quite different from ours, is explained very well in a book by the historian Stefano Luconi, who occupies the chair of US history at the University of Padua.
As we know, the United States is a federal state and it is not the popular vote of the entire nation that decides the outcome of the presidential elections, but the vote of the electors of each individual state. The candidate who outnumbers his opponent by one vote takes the entire package of a state's electors. In the 2016 election, Clinton won the popular vote, but the presidency went to Trump.
The outcome of the November 2020 elections is very uncertain especially in some swing states, such as Pennsylvania, where a head-to-head match separated by a handful of votes is looming.
If one of the candidates refuses to accept the outcome of the first counting of the ballots and therefore to concede his defeat in the State, it could open a rather serious institutional crisis. Trump has already made explicit references to the possibility of postal vote fraud.
Two journalists of the "Financial Times", Katrina Manson and Kadhim Shubber, have tried to outline possible post-vote scenarios presidential. Here are their considerations. The last thing we need is a constitutional crisis in the United States of America.
A nightmare scenario
As Americans prepare to vote in the presidential election, a nightmare scenario looms. This: What if Donald Trump loses the presidency but refuses to accept defeat?
Trump has repeatedly refused to commit to accepting the election outcome, predicted widespread fraud and argued that mail-in voting — which is expected to increase due to the coronavirus pandemic — may not be scrutinized "for months or years."
His Democratic rival Joe Biden accused Trump of wanting to defraud the election and painted a scenario in which the military could escort him out of the White House if he refuses to leave.
With similar prospects, there could be a constitutional crisis against the backdrop of violent rioting on the streets — something that has been seen in several American cities in recent months following the killing of Floyd.
An existential test
At that point the Supreme Court and Congress could play a role in determining who will occupy the Oval Office. But constitutionalists stress that the outcome of a disputed election should be entrusted to common sense and the willingness to reach a compromise.
In summary, a candidate and his party should accept that they have lost.
Edward Foley, a professor at Ohio State University who has studied the vulnerabilities of the American electoral system, notes that both sides have defined the election as an existential test for the country; a position that "makes it difficult to concede defeat".
Much depends on the character and calculations of Trump and Biden, even if neither of them could contest the elections without the support of the state machine and of their party at the federal level.
“The candidate can't just create a crisis on his own,” Foley said. "He needs to involve some institutional subjects of the system to support his moves".
The previous
It wouldn't be the first time in recent history that the US political class has found itself in a legal dispute the day after the election. In 2000, the judicial dispute between George W. Bush and Al Gore, over the counting of votes in Florida, swelled up to the Supreme Court, which ruled in favor of Bush, stopping the recount of votes. Gore accepted the Supreme Court's verdict rather than take the dispute to Congress.
David Boies, who fought for Gore in the Supreme Court, said he thought it unlikely that the US highest court would intervene again to decide the outcome of the election.
“If they did, I think many, myself included, would be urging Biden to take the case to Congress,” he said. According to the constitution, it is the Congress that is responsible for counting the votes of the electoral colleges.
The possible three phases of the crisis
Any electoral dispute will likely unfold in three stages starting the day after the polls. States have until Dec. 8 to settle any voting disputes, with electors due to vote for the president on Dec. 14.
The newly elected Congress will meet on January 6 in a joint session led by Mike Pence, the incumbent vice president, who is also president of the Senate.
If there were still no deal, the United States would be in a profoundly destabilizing third phase, similar to that which occurred in the disputed elections of 1876, when several states sent large competing electors to Congress and the crisis was resolved just two days before the agreement. inauguration.
The 1887 Electoral Count Act sought to prevent such chaos from happening again, but today's political parties may interpret it differently.
If there is no president on January 20th
In the event that no president was chosen on January 20, 2021, the day of the inauguration, an interim president would play the role of “caretaker”. According to the laws on succession, it would be Nancy Pelosi, Speaker of the House and a member of the Democratic party, should he still retain his position as leader of the House of Representatives.
But both Republicans and Democrats could both argue that their candidate is the winner, meaning Pelosi would be in no shape to take office. Determining the outcome in an unprecedented scenario would depend on political and popular pressure and, ultimately, compromise.
“This process hinges heavily on the good faith of the participants, including Congress, if it ever gets to that point,” said George Terwilliger, a lead attorney on the Bush team in the dispute with Al Gore in 2000.
“I think there will be political consequences for people who put their political interest before the welfare of the nation,” he added.
The risk of riots
There are fears that such uncertainty in the face of high expectations of victory on both sides risks creating civil unrest; risk which, in turn, increases the pressure on the parties. It could also pit the military against civilian protesters.
“Leaders are already thinking about the potential for unrest,” said a former senior military official in contact with top Pentagon officials.
Pentagon leadership insists that the US military has no role to play in any election dispute and has openly discouraged Trump from invoking the Insurrection Act of 1807, which would have given him the authority to deploy troops to suppress any civil disorder.
The role of the army
General Milley, who is Trump's military adviser and chairman of the military chiefs of staff, publicly stated that he would not carry out any illegal orders, referring to the Insurrection Act. In June, he apologized for appearing alongside of the president in battle dress after peaceful protesters were forcibly removed from the vicinity of the White House.
In a written response to two Democratic members of the White House military committee, Milley dismissed the notion that the military could play a role in a presidential controversy, saying it's up to the courts and Congress to resolve any such issues.
“I, along with the entire military, will follow the lawful orders of the lawful president of the United States, as established by law,” General Milley said, adding that the law stipulates that there can only be one lawful president at a time.
Mark Esper, the defense secretary, did not address the issue. In June, he apologized for defining American soil as "battlespace," and incited Trump's ire for challenging the legitimacy of invoking the Insurrection Act.
Constitutional chaos: possible scenarios
November 3: Pennsylvania is the 'tipping point'
In a possible election crisis, the teetering state of Pennsylvania, with its Democratic governor and Republican legislature, becomes the key to the White House. Pennsylvania was crucial to Trump's victory in 2016, and it will be difficult to determine an outright winner on election night 2020. If Biden takes the state's top 20 electors, he would secure the presidency. If Trump prevails, there will be another four years for him.
If there is no clear winner in Pennsylvania, this scenario could occur.
Trump declares victory, but Biden, urged by his advisers to keep a cool head, declares the competition closed and expresses confidence that a full re-count will prove that he is the winner.
Trump's narrow margin erodes as mail-in ballots get stripped. As the re-count takes place, Trump initiates legal action to stop it, claiming mail-in ballots are fraudulent. The legal battle is directed towards the Supreme Court of the United States, which, in turn, refuses to order the suspension of the count.
8th December
December 8 is the deadline for settling disputes under the Election Count Act of 1887. Biden has a narrow lead and Democratic-led state officials declare him the winner.
Does Trump concede?
Yes: Republicans are not willing to plunge the country into an unprecedented crisis. In addition, they have maintained a majority in the Senate, which is a powerful tool for monitoring Biden's presidency. Biden, at this point, wins.
No: Trump, with the backing of the party, declares that he is taking the electoral struggle to Congress, which, according to the constitution, has the responsibility of counting the votes of the electoral colleges.
14th December
On Dec. 14, constituency votes must be cast by so-called electors, groups that represent each state and are typically made up of party leaders, local elected officials or activists.
Under Pennsylvania election law, the governor is responsible for signing and transmitting the votes of the state's electors.
The governor signs the votes of Democratic voters who support Biden in line with the popular vote result and transmits them to Congress.
GOP voters separately vote for Trump with the consent of the Republican-controlled state legislature, which, in turn, passes these concurrent votes to Congress, pursuant to Article 2 of the constitution.
6st January
The newly elected House and Senate meet to count the votes of the electoral colleges.
Mike Pence, as President of the Senate, oversees the count as mandated by the constitution.
When it comes to Pennsylvania, the Democrat-controlled House and the Republican-controlled Senate are divided over which votes to count.
Pence claims constitutional authority to break the impasse and decrees that the votes presented by Republican voters are the legitimate ones, prompting the indignation of Democrats, who begin the filibuster.
Democrats and Republicans agree that no candidate was elected president
If it happens: The constitution and federal succession law require the Majority Leader of the House of Representatives, Democrat Nancy Pelosi, to become acting president if no president and no vice president have been elected by Inauguration Day.
If there is an agreement on Pelosi all this will happen on January 20, 2021.
If it doesn't happen: Pence and Congressional Republicans complete the Electoral College count in the absence of Democratic representatives, recording Pennsylvania's votes for Trump, declaring him president, with Pence as vice-president. Democrats unite in opposition, saying Trump has carried out a coup.
If the United States approaches settlement day without a solution for the presidency.
Trump, Biden and Pelosi are in fact three presidents.
Will the Supreme Court intervene?
Yes: The court is asked to decide on the choice of president and also on Pennsylvania's voting situation. The Court's decision puts an end to the legal uncertainty regarding the succession. Trump or Biden wins, or Pelosi becomes interim president.
No: Judges view the dispute as inherently political and not fit for decision by a court, especially when a 5-4 decision along well-defined political lines could inflame rather than extinguish tensions.
January 20, opening day
There is no consensus on who is the president. Trump remains in the White House. His first term ends, as required by the Constitution. From the White House, however, Trump says that he is starting his second term.
At this point it is a real institutional crisis.
Source: Katrina Manson and Kadhim Shubber, What happens if Trump loses but refuses to concede?,Washington September 14, 2020
