Donald Trump’s refusal to say whether he would accept the outcome of next month’s US presidential election if he were to lose is unprecedented and chilling, legal experts have said.
But although the failure by a major party nominee to concede defeat on election night would throw American democracy into uncharted territory, from a legal standpoint, it would hardly make a difference, experts from across the political spectrum said.
“Frankly, under our system, it is irrelevant whether the loser concedes or not,” said James Bopp, the conservative constitutional lawyer. “The vote of the electoral college is conclusive.”
In the third and final presidential debate on Wednesday night, Trump twice declined to say whether he would accept defeat if he felt the outcome was “rigged” against him, a statement that appeared intent on sowing doubt about the integrity of the electoral process.
The moderator, Fox News anchor Chris Wallace, pressed him, noting that the peaceful transition of power is a long-respected principle of American democracy.
“There is a tradition in this country, in fact, one of the prides of this country is the peaceful transition of power,” Wallace said. “And no matter how hard fought a campaign is that at the end of the campaign, that the loser concedes to the winner.”
“I will look at it at the time,” the Republican nominee replied, drawing gasps from the audience. “I will keep you in suspense.’’
“That’s horrifying,” his Democratic opponent Hillary Clinton interjected. “I am appalled that someone who is the nominee of one of our two major parties would take that position.”
In a speech on Thursday, Trump raised new questions about the issue, saying first: “I will totally accept the results of this great and historic presidential election if I win,” and then adding: “Of course I would accept a clear election result, but I would reserve my right to contend or file a legal challenge, in the case of a questionable result.”
Trump’s reticence does not appear to be shared by those closest to him. Just hours before the debate, Trump’s running mate Mike Pence, his campaign manager Kellyanne Conway and his daughter, Ivanka Trump, all insisted that the campaign would accept the result of the election.
Under the electoral college system, Americans do not directly elect their president. They choose a slate of electors who pledge to vote for a certain presidential ticket. A candidate needs to win 270 electoral votes to win the election.
Though a winner is usually projected on election night, the official vote of the electoral college does not take place until some weeks later.
In those intervening weeks before the electoral college vote, Trump could mount a legal challenge to contest the result or demand a recount under certain circumstances but unless the vote margin is slim his chances of his case being successful are low.
“He could try to litigate,” said Rick Hasen, a University of California-Irvine professor who runs the Election LawBlog. “But if he loses by a wide margin he’s not likely to get far in court.” Current polling suggests Trump is careening toward a landslide defeat.
Hasen said he is more concerned that Trump’s comments, which he called “appalling and unprecedented”, will lead to violence on election night if he does not win.
“There was no hedging from Trump, as in ‘of course I’d accept the results unless the results were very close and there was room to contest things’. Nothing like that. This is the full Breitbartization of the election,” Hasen wrote on his blog after the debate, referring to Breitbart, the alt-right website that has become a cheerleader for Trump’s campaign. “It makes me worry about violence in the streets from his supporters if Trump loses.”
After the debate, Trump supporters tried to deflect scrutiny of Trump’s comments by pointing to the recount in 2000 following the extremely close race between George W Bush and Al Gore. But legal experts reject the comparison.
“This is not Bush v Gore,” said Richard Reuben, a University of Missouri law professor. “There were legitimate questions about the vote after the votes were cast. The case went through the legal process and Gore graciously accepted the supreme court’s decision, as problematic as that was.
“This is a premeditated attempt to delegitimize the result of any decision that doesn’t go his way – unprecedented in American politics in my lifetime.”
Trump’s reluctance to accept possible defeat echoes his months-long effort to in effect declare the outcome of the election invalid well before the first votes were cast. This week he raised the prospect of 1.8 million dead people voting for his opponent, and he has called on his supporters to monitor polling booths for instances of fraud.
How will the election be decided?
The president is chosen through the electoral college, in which each state is assigned a
Under the US system, it is possible to win the popular vote and lose the electoral college, which is what happened – it eventually transpired – in 2000. Bush lost the national popular vote to Gore by 0.51% but won the electoral college by 271 votes to 266.
After initially conceding to Bush on election night and minutes before he was due to formally admit defeat, Gore famously phoned Bush back to explain that circumstances had changed and he now wanted to change his mind.
“You’re calling me back to retract your concession,” Bush said.
“There’s no need to get snippy about it,” Gore shot back.
The election result hinged on Florida, where the margin of victory was so slim it triggered a recount. Gore sought recounts in a handful of counties and Bush sued to stop them. A case was ultimately brought before the US supreme court, whose 5-4 decision stopped the recount and in effect awarded Bush Florida’s electoral votes.
Gore disagreed with the decision but conceded nonetheless. In his concession speech, delivered days before the electoral college vote, Gore quoted Stephen Douglas, who lost the presidency to Abraham Lincoln: “Partisan feeling must yield to patriotism. I’m with you, Mr President and God bless you.”