Democratic nominee Hillary Clinton and Republican nominee Donald Trump are just two more battles away from the Presidential post. While theoretically speaking, the American president will be announced in January after the counting of the electoral votes, for all practical purposes the results on election day generally give a clear idea about who would be taking up the highest administrative post of the world economic power. At least that has been the norm in the democracy all these years.
However, this electoral season is unique in that the Republican nominee Donald Trump has stated that he would keep the country in “suspense” over whether he would accept the results of November’s election. A day later, he is reported to have told his supporters that he would accept the results if he wins.
Trump’s statement has put the country under a huge dilemma since for decades the presidential race has ended with the losing party conceding gracefully. Though there have been cases in the past of a losing party contesting the popular votes of the first phase of the elections, in each of these cases the losing candidate has finally conceded to the outcome as a mark of respect to democracy.
Is there a legal provision for contesting the results of an election?
There is indeed a provision for contesting election results, but only at the state level and not at the national level. In other words, there is a possibility to challenge the votes that would be counted after Tuesday’s election, but the matter is subject to individual state laws alone. Every state has a separate set of laws that take care of instances in which electoral votes are contested and in some states recounting of votes in cases of very marginal differences in between popular votes of the candidates is the norm.
However, fact of the matter is that such contestation or recounting is considered necessary only in cases where the two candidates are very close in their results. In cases where the gap is very large, challenging the result is considered unnecessary since in any case it will not change anything significantly.
A state’s electoral votes can be challenged during the counting period in January as well. The US federal law says the following:
“Under federal law an objection to a state’s Electoral votes may be made to the President of the Senate during Congress’s counting of Electoral votes in January. The objection must be made in writing and signed by at least one Senator and one member of the House of Representatives. Both the Senate and the House of Representatives debate the objection separately. Debate is limited to two hours. After the debate, both the Senate and the House of Representatives rejoin and both must agree to reject the votes.”
At the national level though, challenging the final votes of the electoral college is neither legally permissible nor has it ever happened before.
Amendment XII of the US Constitution, ratified in 1804 states the following:
“The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”
Therefore, in the event of Donald Trump losing and accepting the outcome, Hillary Clinton would go on to become the president regardless.
Have there been cases of election results being contested?
There have been instances when popular votes at state level have been contested. The most well known among them is the case of Florida in the George Bush vs Al Gore election in 2000. When Al Gore lost out to George Bush in Florida by a very thin margin, Gore contested the results. This was a special case also because there was a technical flaw in the voting technology. However, on account of Supreme Court ruling in this case, Al Gore conceded publicly and Bush became the president. More recently, In January 2005, the 20 electoral votes of Ohio were challenged. However, since the Senate and the House of Representatives could not reach a consensus regarding rejecting the votes, the votes for George Bush were taken into consideration.
What are the other challenges that America can face in case Trump does not accept the result?
The winning candidate will go on to become the president regardless of whether or not Trump accepts the outcome but there can be other serious damage made in such a case. The supporters of the losing party might make it very difficult for the winning party to govern in the succeeding years. The possibility of violence cannot be dismissed either. There have been comments on violent response made by Trump’s supporters in the past as well.
In July 2016, Trump’s advisor, Al Baldasaro had remarked that Hillary Clinton should be in the firing line and shot for treason. Another supporter, David Clarke, had urged Republican supporters to “take up pitchforks and torches” on account of Trump’s claim of the elections being rigged against him.
Most importantly though, the biggest fear of Trump’s refusal to concede would be to the democratic functioning of the state’s apparatus. As reported by the Telegraph, Scott Farris, who authored “Almost President: The Men Who Lost The Race But Changed The Nation,” a presidential concession speech is one of the things that makes American democracy work. Our democracy is a bit more fragile than we think”. Peaceful concessions in every election has kept America going. Therefore a challenge to outcome can be a huge undermining of democracy.