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[THREAD: WHAT IF HE REFUSES?]
1/51
"Senator Jones has just informed me that the returns indicate your election, and I hasten to extend my congratulations. We have submitted the issue to the American people and their will is law."
1/51
"Senator Jones has just informed me that the returns indicate your election, and I hasten to extend my congratulations. We have submitted the issue to the American people and their will is law."
2/51
With these telegrammed words, Democratic nominee William Jennings Bryan conceded the 1896 Presidential election to his Republican rival William McKinley, kick-starting the one piece of tradition the entire electoral process of the country would come to hinge on.
With these telegrammed words, Democratic nominee William Jennings Bryan conceded the 1896 Presidential election to his Republican rival William McKinley, kick-starting the one piece of tradition the entire electoral process of the country would come to hinge on.
3/51
But before we get to concession, let's very quickly review how America elected its president. There's two major political parties, each elect their Presidential nominee in what's called a national party convention — the DNC and the RNC.
But before we get to concession, let's very quickly review how America elected its president. There's two major political parties, each elect their Presidential nominee in what's called a national party convention — the DNC and the RNC.
4/51
These conventions are attended by delegates of their respective party who have themselves been elected in a series of primaries and caucuses. Once the nominees have been picked by their respective parties in their respective conventions, the stage is set.
These conventions are attended by delegates of their respective party who have themselves been elected in a series of primaries and caucuses. Once the nominees have been picked by their respective parties in their respective conventions, the stage is set.
5/51
These nominees finally go to polls in the Election Day. The date is set by the US Constitution as the Tuesday after the first Monday in November of the election year. For 2020, that day is November 3. That's the day, eligible voters across America cast their ballot.
These nominees finally go to polls in the Election Day. The date is set by the US Constitution as the Tuesday after the first Monday in November of the election year. For 2020, that day is November 3. That's the day, eligible voters across America cast their ballot.
6/51
It's easy to assume that this is a vote to elect the President, but that isn't quite the case. Sure, Americans tick the preferred nominee's name on the ballot, but the vote isn't for that nominee at this point. It's for what's called an "elector."
It's easy to assume that this is a vote to elect the President, but that isn't quite the case. Sure, Americans tick the preferred nominee's name on the ballot, but the vote isn't for that nominee at this point. It's for what's called an "elector."
7/51
The Congress has a total membership of 535. That is 100 Senators and 435 Representatives. That's also the total number of electors that go on to elect the President. Well, almost. Because there's also 3 additional electors to represent DC.
The Congress has a total membership of 535. That is 100 Senators and 435 Representatives. That's also the total number of electors that go on to elect the President. Well, almost. Because there's also 3 additional electors to represent DC.
8/51
So that gives us 538 electors. These electors represent the 50 states and the District of Columbia. The distribution, however, isn't uniform and governed by population. Thus, California gets to elect 55 electors while States like Delaware and Alaska get only 3.
So that gives us 538 electors. These electors represent the 50 states and the District of Columbia. The distribution, however, isn't uniform and governed by population. Thus, California gets to elect 55 electors while States like Delaware and Alaska get only 3.
9/51
This proportional system ensures each state has a fair representation in the electoral process. Naturally, the allocated numbers can go up or down after every census. It's these electors that are really elected on the Election Day, not the President himself.
This proportional system ensures each state has a fair representation in the electoral process. Naturally, the allocated numbers can go up or down after every census. It's these electors that are really elected on the Election Day, not the President himself.
10/51
What's peculiar about electors is that they are elected on a winner-takes-all basis. So, if more Californians vote blue (Democrat) than red (Republican), all 55 electors sent by California would represent the Democratic Party, and vice-versa.
What's peculiar about electors is that they are elected on a winner-takes-all basis. So, if more Californians vote blue (Democrat) than red (Republican), all 55 electors sent by California would represent the Democratic Party, and vice-versa.
11/51
These electors then go on to constitute the Electoral College. As must be apparent by now, the November election isn't the final step in the electoral process, it's the first. The Electoral College convenes on the first Monday after the second Wednesday in December.
These electors then go on to constitute the Electoral College. As must be apparent by now, the November election isn't the final step in the electoral process, it's the first. The Electoral College convenes on the first Monday after the second Wednesday in December.
12/51
It's at this convention that the President is actually elected. By the electors. It's a closed-doors process where all bets are off. Remember the electors are elected by public vote and sent to the College as representatives of the party their respective states voted for?
It's at this convention that the President is actually elected. By the electors. It's a closed-doors process where all bets are off. Remember the electors are elected by public vote and sent to the College as representatives of the party their respective states voted for?
13/51
So obviously, this should hold and, say, all 55 electors from California that were elected to represent the Democratic Party would vote for the Democratic nominee, right? Wrong. Sure, that's what they almost always do, but there's no law that forces them to.
So obviously, this should hold and, say, all 55 electors from California that were elected to represent the Democratic Party would vote for the Democratic nominee, right? Wrong. Sure, that's what they almost always do, but there's no law that forces them to.
14/51
If they wished, they could come on a Republican slate and still vote blue, and vice-versa. That aren't obligated by law to follow their voters' mandate.
The candidate that gets 270 votes in this election takes oath on Jan 20, the Inauguration Day.
If they wished, they could come on a Republican slate and still vote blue, and vice-versa. That aren't obligated by law to follow their voters' mandate.
The candidate that gets 270 votes in this election takes oath on Jan 20, the Inauguration Day.
15/51
But there's more, in the interregnum between the popular vote and the Electoral College vote falls a date called the "safe harbor deadline." This is 6 days before the December election. This deadline is for the stated to recall their electors should they feel the need to.
But there's more, in the interregnum between the popular vote and the Electoral College vote falls a date called the "safe harbor deadline." This is 6 days before the December election. This deadline is for the stated to recall their electors should they feel the need to.
16/51
So, if a state suspects foul-play or any other irregularities and wishes to recall its electors and start all over again, it has to do so before this deadline. After that, the electors are pretty much locked, hence the name safe haven deadline.
So, if a state suspects foul-play or any other irregularities and wishes to recall its electors and start all over again, it has to do so before this deadline. After that, the electors are pretty much locked, hence the name safe haven deadline.
17/51
Now, this 2-tier process might seem contrived, and even downright unfair, to many and here's why. If you win many small state with even wafer-thin margins, you get more electors than your rival that won fewer large states with any margin. What does this mean?
Now, this 2-tier process might seem contrived, and even downright unfair, to many and here's why. If you win many small state with even wafer-thin margins, you get more electors than your rival that won fewer large states with any margin. What does this mean?
18/51
It means that you could have scored more popular votes, thanks to the states you won being more populous, but your rival could still land more electors in the College. That's what happened in 2016. Trump won despite Clinton scoring more popular votes. 3 million more.
It means that you could have scored more popular votes, thanks to the states you won being more populous, but your rival could still land more electors in the College. That's what happened in 2016. Trump won despite Clinton scoring more popular votes. 3 million more.
19/51
This phenomenon is called electoral inversion, and it has happened five times so far. In fact, states are not even obligated by the US Constitution to "elect" their electors. They could simply appoint their slate without a popular vote if they so wished.
This phenomenon is called electoral inversion, and it has happened five times so far. In fact, states are not even obligated by the US Constitution to "elect" their electors. They could simply appoint their slate without a popular vote if they so wished.
20/51
But let's not rush to diss the Founding Fathers for instituting such a counterintuitive system. When the Constitution was drafted, America was a different society. Most Americans were illiterate and even ineligible to vote. They couldn't be blindly trusted with a vote.
But let's not rush to diss the Founding Fathers for instituting such a counterintuitive system. When the Constitution was drafted, America was a different society. Most Americans were illiterate and even ineligible to vote. They couldn't be blindly trusted with a vote.
21/51
A simple majoritarianism could easily tyrannize the government and turn democracy into an unwieldy mobocracy. This could only be avoided by a second tier of wisdom. So the Philadelphia Convention came up with a compromise between majoritarianism and tyranny.
A simple majoritarianism could easily tyrannize the government and turn democracy into an unwieldy mobocracy. This could only be avoided by a second tier of wisdom. So the Philadelphia Convention came up with a compromise between majoritarianism and tyranny.
22/51
The system involved each state dispatching a set of electors to the capital with a signed note stating the name of the candidate they were to endorse and hopes they weren't killed by Indians died of dysentery along the way (these concerns weren't unfounded, btw).
The system involved each state dispatching a set of electors to the capital with a signed note stating the name of the candidate they were to endorse and hopes they weren't killed by Indians died of dysentery along the way (these concerns weren't unfounded, btw).
23/51
Once in Philadelphia (that was the capital those days), these electors should pick the President through an electoral vote. The states were left free to decide how they'd pick their electors. While they all chose to do so by a popular vote, it was not a compulsion.
Once in Philadelphia (that was the capital those days), these electors should pick the President through an electoral vote. The states were left free to decide how they'd pick their electors. While they all chose to do so by a popular vote, it was not a compulsion.
24/51
Whether this system still holds ethical legitimacy is not a debate we'll get into here.
For now, let's just assume that people (mostly) elect electors, and electors elect the President honoring the will of their respective people. These are two tiers.
There's also a 3rd.
Whether this system still holds ethical legitimacy is not a debate we'll get into here.
For now, let's just assume that people (mostly) elect electors, and electors elect the President honoring the will of their respective people. These are two tiers.
There's also a 3rd.
25/51
Very few are aware of this 3rd tier because it's invisible. In its entire 250-year history, the country has never had to enter this round because it never had to.
The interregnum between electoral vote and inauguration has always been uneventful. But it doesn't have to.
Very few are aware of this 3rd tier because it's invisible. In its entire 250-year history, the country has never had to enter this round because it never had to.
The interregnum between electoral vote and inauguration has always been uneventful. But it doesn't have to.
26/51
The reason America doesn't inaugurate its new President right after the electoral vote is because this uneventful interregnum is a window. During this window, election results could be challenged in the US Supreme Court. By anyone, but logically the loser.
The reason America doesn't inaugurate its new President right after the electoral vote is because this uneventful interregnum is a window. During this window, election results could be challenged in the US Supreme Court. By anyone, but logically the loser.
27/51
It's like the interregnum between the Election Day in November and the "safe haven day" in December when a state could challenge and retract its own electors. Except this time, it's the candidate himself who can involve the SCOTUS against the electoral vote results.
It's like the interregnum between the Election Day in November and the "safe haven day" in December when a state could challenge and retract its own electors. Except this time, it's the candidate himself who can involve the SCOTUS against the electoral vote results.
28/51
Now this is where it gets tricky. If the losing candidate goes to court and the court rules in his favor, conceding that the elections weren't fair, the 3rd tier will have to be invoked. This happens on January 6. Exactly 2 weeks before the Inauguration Day.
Now this is where it gets tricky. If the losing candidate goes to court and the court rules in his favor, conceding that the elections weren't fair, the 3rd tier will have to be invoked. This happens on January 6. Exactly 2 weeks before the Inauguration Day.
29/51
This time, it's not electors that convene, but Congressmen. All Senators and all Representatives get together behind closed doors on this day to elect the new President. At this point, it's as if the elections in November and December...
Didn't even happen.
This time, it's not electors that convene, but Congressmen. All Senators and all Representatives get together behind closed doors on this day to elect the new President. At this point, it's as if the elections in November and December...
Didn't even happen.
30/51
What happens after this, the US Constitution doesn't clarify. So it's very possible that on January 20, two President-elects could show up for the swearing-in — one that won the electoral vote, the other that won the Congress. How come?
What happens after this, the US Constitution doesn't clarify. So it's very possible that on January 20, two President-elects could show up for the swearing-in — one that won the electoral vote, the other that won the Congress. How come?
31/51
Because the Constitution doesn't explicitly state that the Jan 6 vote couldn't be further challenged in the SCOTUS. What it does say unambiguously is that in January 20, someone HAS TO be sworn in. This date is a constant. The swearing-in CANNOT be postponed.
Because the Constitution doesn't explicitly state that the Jan 6 vote couldn't be further challenged in the SCOTUS. What it does say unambiguously is that in January 20, someone HAS TO be sworn in. This date is a constant. The swearing-in CANNOT be postponed.
32/51
Basically, the US Constitution doesn't safeguard a peaceful power transfer, it presupposes it. And for good enough reasons. The situation has never occurred in over 250 years. The loser has always conceded gracefully and without fuss. It's an honorable tradition.
Basically, the US Constitution doesn't safeguard a peaceful power transfer, it presupposes it. And for good enough reasons. The situation has never occurred in over 250 years. The loser has always conceded gracefully and without fuss. It's an honorable tradition.
33/51
This concession traditionally comes in the form of a concession speech by the losing nominee. Although not enshrined in the Constitution as a mandatory ceremony, Bryan made it a civic duty. In 1928, the tradition went public when it was announced on the radio.
This concession traditionally comes in the form of a concession speech by the losing nominee. Although not enshrined in the Constitution as a mandatory ceremony, Bryan made it a civic duty. In 1928, the tradition went public when it was announced on the radio.
34/51
That year, Democrat Al Smith conceded to Republican Herbert Hoover and did so in the radio. With this, the practice acquired liturgical proportions. However bitter the race, an amicable concession was assumed to be a sacred constant.
That year, Democrat Al Smith conceded to Republican Herbert Hoover and did so in the radio. With this, the practice acquired liturgical proportions. However bitter the race, an amicable concession was assumed to be a sacred constant.
36/51
But what if the loser doesn't concede? Although not a Constitutional stipulation, not giving this speech is considered a sign in defiance. By not conceding, especially if the loser is an incumbent, the latter indicates his refusal to go down.
But what if the loser doesn't concede? Although not a Constitutional stipulation, not giving this speech is considered a sign in defiance. By not conceding, especially if the loser is an incumbent, the latter indicates his refusal to go down.
37/51
Do remember that even at this point, as President, he still has a remarkable amount of power at his fingertips. He's still the C-in-C of the armed forces, not to mention the legions of party workers in the streets, willing to light up the country on a wink.
Do remember that even at this point, as President, he still has a remarkable amount of power at his fingertips. He's still the C-in-C of the armed forces, not to mention the legions of party workers in the streets, willing to light up the country on a wink.
38/51
Refusal to concede is that wink. At this point, all bets are off. The loser now goes to court and if the bench agrees, secures the third tier. And since the third tier involves the Congress, the party with more Representatives sails through.
Refusal to concede is that wink. At this point, all bets are off. The loser now goes to court and if the bench agrees, secures the third tier. And since the third tier involves the Congress, the party with more Representatives sails through.
39/51
Like I said, this has never happened before. But 2020 is a strange year. With the pandemic raging wild, most votes are being called via postal ballots. Earlier these would only be done by Americans outside America, especially troops stationed in combat zones.
Like I said, this has never happened before. But 2020 is a strange year. With the pandemic raging wild, most votes are being called via postal ballots. Earlier these would only be done by Americans outside America, especially troops stationed in combat zones.
40/51
This year, it's the primary vote. Trump has made it sufficiently clear that he isn't going down easy. That he isn't planning to concede if it came to that. Why? Because voter frauds.
His fears aren't entirely unfounded though and there's a very logical explanation why.
This year, it's the primary vote. Trump has made it sufficiently clear that he isn't going down easy. That he isn't planning to concede if it came to that. Why? Because voter frauds.
His fears aren't entirely unfounded though and there's a very logical explanation why.
41/51
Postal ballots, given their lack of physical oversight, are fertile grounds for impersonations, interceptions, and other kinds of fraudulent actions. Who's to see who's filling out the ballot in whose name? Who's to secure the drop boxes? These things happen.
Postal ballots, given their lack of physical oversight, are fertile grounds for impersonations, interceptions, and other kinds of fraudulent actions. Who's to see who's filling out the ballot in whose name? Who's to secure the drop boxes? These things happen.
42/51
Sure, they don't happen on a scale that'd tilt the election either way, but this isn't a normal year. This year, mail-in ballots are the norm. So their impact is bound to be unprecedented.
But here's the thing, as sitting President, Trump has far more power than Biden.
Sure, they don't happen on a scale that'd tilt the election either way, but this isn't a normal year. This year, mail-in ballots are the norm. So their impact is bound to be unprecedented.
But here's the thing, as sitting President, Trump has far more power than Biden.
43/51
What this means is that he has the means to do voter suppression, and far more so than his rival. As for other voter frauds, he's naturally being dishonest in claiming sole victimhood, given Biden is just as likely to be adversely affected should that become rampant.
What this means is that he has the means to do voter suppression, and far more so than his rival. As for other voter frauds, he's naturally being dishonest in claiming sole victimhood, given Biden is just as likely to be adversely affected should that become rampant.
44/51
So, if Trump refuses to concede and vacate the Oval Office, the next step is the SCOTUS, an institution that isn't exactly as nonpartisan as it ought to be. As we speak, 6 out of 9 SCOTUS justices are red. That includes the Chief Justice himself.
So, if Trump refuses to concede and vacate the Oval Office, the next step is the SCOTUS, an institution that isn't exactly as nonpartisan as it ought to be. As we speak, 6 out of 9 SCOTUS justices are red. That includes the Chief Justice himself.
45/51
Remember Trump's tearing rush to appoint Amy Coney Barrett as replacement for Late Ruth Ginsberg? It'd now be a miracle if this bench ruled against Trump, especially when voter frauds are so easy to establish with mail-in ballots.
Remember Trump's tearing rush to appoint Amy Coney Barrett as replacement for Late Ruth Ginsberg? It'd now be a miracle if this bench ruled against Trump, especially when voter frauds are so easy to establish with mail-in ballots.
46/51
And once the SCOTUS rules to hold a Congress vote, all bets are off. Now it's an edge-of-the-seat wait for the Jan 6 convention. What happens there? Here's what the Congress like like now:
Dems, 277
Reps, 250
Others, 3
Looks like Biden should still through here. But...
And once the SCOTUS rules to hold a Congress vote, all bets are off. Now it's an edge-of-the-seat wait for the Jan 6 convention. What happens there? Here's what the Congress like like now:
Dems, 277
Reps, 250
Others, 3
Looks like Biden should still through here. But...
47/51
There's nothing stopping Trump from hitting the courts again. Right up until the date of inauguration. What happens then? Again, the Constitution doesn't say. All it says is that someone has to take the oath on January 20.
There's nothing stopping Trump from hitting the courts again. Right up until the date of inauguration. What happens then? Again, the Constitution doesn't say. All it says is that someone has to take the oath on January 20.
48/51
But who that someone is, remains a matter of honor, already a scarce commodity in this race. As a result, both Trump and Biden could show up to take oath. All this is uncharted territory and highly unlikely. But the likelihood isn't zero for the first time ever.
But who that someone is, remains a matter of honor, already a scarce commodity in this race. As a result, both Trump and Biden could show up to take oath. All this is uncharted territory and highly unlikely. But the likelihood isn't zero for the first time ever.
49/51
One can take solace in the fact that even a SCOTUS as biased as this one works only entertain a plea if the margin of loss for Trump is razor-thin. Only such a scenario would make it easier to even prove voter fraud. Of course, that's assuming Trump will lose.
One can take solace in the fact that even a SCOTUS as biased as this one works only entertain a plea if the margin of loss for Trump is razor-thin. Only such a scenario would make it easier to even prove voter fraud. Of course, that's assuming Trump will lose.
50/51
In short, if Trump losses, and if he loses by a very faint margin, the likelihood of which is significant, it's fair to assume he won't concede. And if he doesn't concede, things will go to court. If they do, the court will order a Congressional poll. If that happens...
In short, if Trump losses, and if he loses by a very faint margin, the likelihood of which is significant, it's fair to assume he won't concede. And if he doesn't concede, things will go to court. If they do, the court will order a Congressional poll. If that happens...
51/51
So basically, the entirety of American democracy this year hinges not on a Constitutional provision, but a piece of tradition, a code of honor, that's been upheld without exception through 58 Presidential elections over more than 2 centuries — the concession speech.
So basically, the entirety of American democracy this year hinges not on a Constitutional provision, but a piece of tradition, a code of honor, that's been upheld without exception through 58 Presidential elections over more than 2 centuries — the concession speech.
