Opinion guest column

Trump’s refusal to concede could spark a crisis

And there may not be a legal way to resolve it

At this point, it’s an open secret that Donald Trump is probably planning to claim victory in the 2020 election, whether or not he wins. What’s worse, a large swath of the population will likely have his back either way. As with every other piece of election drama, we’ve become pretty numb to this. But this one’s actually pretty remarkable because it has the potential to plunge the country into a crisis.

In every previous U.S. presidential election, the losers have ultimately conceded before the next president was due to be sworn in. This remarkable streak has played a central role in the U.S.’s near-perfect track record for peaceful transfers of power because, as history has demonstrated many times, multiple candidates claiming victory is the stuff of coups and civil wars. In fact, the only time in U.S. history in which multiple people claimed to be president was during the Civil War. 

I often hear that were Trump to lose the election and refuse to step down, the military would escort him out of the White House on Jan. 20, and that incredible spectacle would be the end of it. But that assumes a Biden victory would be considered legitimate, and Trump and many of his supporters have made it clear they would decry that outcome as fraudulent. Widespread doubt about the outcome would beget widespread disagreement about who’s president. What happens then? Is there a plan for settling this? Or would it be a toss-up, to be decided by backdoor political wrangling, or maybe even the military?

I wanted to know what plan, if any, the U.S. has for dealing with a crisis of presidential succession, and what might be coming down the pike in the next few months. Frantic Google searches didn’t clarify much, so I reached out to Mark Tushnet, a professor at the Harvard Law School and a prominent constitutional law scholar, and he agreed to talk it over with me.

“The scenarios people are imagining depend on fairly close elections in a handful of important states,” he told me. “If, on the morning of the election, it’s clear Biden has won [enough key swing states] by quite substantial margins, then it’s going to be over. There won’t be a fight.”

Tushnet told me that the only meaningful way Trump could challenge the election is through a state-by-state recount. In some states, if the margin of victory falls below a certain threshold, a recount ensues automatically. But Trump could still request recounts in states where no such criteria were met, though he’d probably have to pay for them.

“When the recount is done, there is an opportunity to challenge ballots one-by-one,” Tushnet told me. “And that can take time, depending on how many ballots there are and how extensive the challenges are.”

This is where problems could crop up. The 20th Amendment to the Constitution stipulates that the next presidential administration begins on Jan. 20, roughly two and a half months after the election. If an extensive recount ensues, followed by a patchwork of state-level legal challenges to those recounts, disputes over the election may not be resolved by then. If that happens, who gets sworn in?

Professor Tushnet assured me that there wouldn’t be any ambiguity as long as the margin of victory was substantially larger than the number of contested ballots. “As a political matter, no one’s going to take these challenges seriously unless it’s a close election,” he told me. “Then we don’t have to worry about [Trump] getting away with not stepping down.… The political will would be so set against him that he couldn’t successfully do it.”

Though this certainly constrains the space of potential crises, we’re definitely not out of the woods. “If [the election is] close, we don’t know what would happen,” Tushnet said. “The U.S. has no experience with it. Ultimately, it probably would depend on what kind of signals [Trump] gets from the leadership of the U.S. military. What are they going to command their soldiers to do?”

So, that’s troubling.

At this point, I think it unlikely anything like this will happen in the coming months. An unambiguous Biden victory seems likely. And even if Trump does contest a Biden win, he probably doesn’t command enough support from high-ranking military officials to come out on top, a sentiment Professor Tushnet echoed in our call.

But it’s become clear to me that an eventual crisis of presidential succession is entirely possible in the U.S. What’s more, I worry that Trump may increase the likelihood of it happening further down the line, as his refusal to concede may inspire future presidential aspirants. Though it’s impossible to say exactly what would happen, history has made it pretty clear that governments torn by opposing claims to power generally don’t herald good times for the governed, especially when the military gets involved.

I asked Professor Tushnet how we might prevent something like this. “A very large number of countries have independent election monitoring bodies,” he told me. “None of them work perfectly under all conditions, but the ones that seem to have the best chance have a substantial majority of their members drawn from expert bodies, non-governmental organizations that have expertise in election administration. And there are such organizations and people around in the U.S.” Such a body would be given the final word on the outcomes of elections, removing the kinds of ambiguities that could get us into serious trouble.

Tushnet is largely agnostic on how such a body should be structured, though he believes it should be permanent, as opposed to being assembled as-needed. “If it’s not in place when the problem arises, then you know what the political circumstances are, and the political parties are going to try to game the design,” he told me.

“Going forward, it wouldn’t be a bad idea to set up one of these expert-dominated monitoring bodies,” Tushnet said, a sentiment I couldn’t agree with more.

Eli Sanchez is a PhD candidate in the Department of Nuclear Science and Engineering.