Edward B. Foley, professor of law at The Ohio State University, is author of Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016).

“I’ll keep you in suspense. OK?” is obviously not what Donald Trump should have said in response to Chris Wallace’s question Wednesday night about whether Trump would adhere to the tradition that “the loser concedes to the winner” to ensure the peaceful transition of power in our democracy.

Trump’s refusal to say he will accept the results of the election was by far the biggest news of the third and final debate. Hillary Clinton called the comment “horrifying;” and even Republicans piled on. “Terrible answer,” wrote radio host Hugh Hewitt. Lindsey Graham called the statement “a great disservice” to the Republican Party and the whole country, while his Senate colleague Jeff Flake went with “beyond the pale.” Many invoked history. “The most disgraceful statement by a presidential candidate in 160 years,” tweeted the Wall Street Journal’s Bret Stephens.


There’s no question that Trump’s self-centered phrasing—“I’ll keep you in suspense”—is thoroughly inappropriate in a democracy, where the voters are sovereign and candidates are supposed to serve the electorate’s interest. And his allegations that the electoral system is pervasively rigged are both entirely divorced from reality and egregiously irresponsible. But would a Trump holdout on election night necessarily be the historical aberration critics are describing? Not exactly.

Despite what some of the reaction to Trump’s comments suggests, it is not a requirement that the loser in a presidential election invariably concede on Election Night. In fact, multiple times since the Civil War, it hasn’t happened. The most obvious recent example, of course, was 2000, when the pivotal Florida vote was genuinely in doubt for weeks between George W. Bush and Al Gore. But earlier elections dragged out for weeks as well, when the outcome of the election was either not immediately known or was a close enough call to merit further scrutiny. When you look at these episodes together, what they actually suggest is that the country can handle this kind of suspense. It might be a colossal act of vanity for Trump to skip the now routinely accepted concession speech on Election Night, but that wouldn’t itself be reason enough to believe that our democracy is in crisis.

The trouble would come if Trump really digs in. If he alone claims fraud while everyone else disagrees, then his solitary rants are more pathetic than dangerous. But if the Republican Party as a whole joins Trump in asserting that the results of the election were tainted (unlikely as it seems), that would be an entirely—and far more serious—matter. When the voting system goes seriously awry, as it has a couple of times, the system relies on the losing side to be able to accept defeat eventually for the sake of the rule of law. The American tradition, extending back to the Founding Fathers, has been to accept electoral outcomes perceived as unfair if they are recognized as legally authoritative. A genuinely intransigent candidate—one who refused to carry on that tradition after the legal system has run its course, and with the backing of a political party—would be an unprecedented, and worrisome, event in American history.

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We don’t hear much about the elections of 1884 or 1916, but that’s exactly why they’re important: In both cases, although the loser didn’t concede immediately after the vote, the system held strong.

In 1884, it took two weeks for James Blaine to concede defeat to Grover Cleveland. That’s because Blaine, the Republican candidate in the race, waited for the official canvas of election returns to confirm that he had lost. (The canvass, then as now, is the administrative process by which the government’s preliminary report of vote tallies, having been quickly compiled from the various polling places, is double-checked and corrected as necessary before becoming an officially certified result. Today, because of the increased reliance on provisional and absentee ballots, the canvass also includes the counting of those eligible ballots that were not tallied on Election Night and thus potentially could affect the outcome of the race.) As in other presidential elections in the 1880s, New York was the proverbial “swing state” in the Cleveland-Blaine campaign, and the preliminary returns that year showed the race to be exceptionally close, with Cleveland winning by about only 1,000 votes. Republicans suspected that fraud in New York City and on Long Island might have cost Blaine the election.

To find out, a bipartisan group of local lawyers conducted an investigation while the official canvass was occurring. The state and the country followed the events very closely: The presidency, after all, hung in the balance. But there was no widespread panic or serious civil unrest. The investigation found that, while there were indeed some irregularities, the volume was not large enough to be decisive. The democratic process of verifying the count of ballots proceeded properly. And at the end of the process, the appropriate concession ensued. Blaine took his cue from the New York Tribune, the leading Republican media outlet of the day: The Tribune pronounced, “The canvass of the returns has been thorough, careful and honest, and leaves no room for doubt as to the result.” (Maybe this year, if circumstances turn out to be similar, it will take an analogous pronouncement from Fox News to prompt Trump to utter the necessary concession.)

The 1916 election was essentially the same as 1884, although the swing state that year was California, and the apparent margin of victory based on preliminary returns was about 3,000 votes. Charles Evans Hughes, the Republican, also waited two weeks for completion of the official canvass of returns before conceding defeat to Woodrow Wilson. Hughes was more reluctant than other Republicans to wait this long, and a few days after the polls had closed, he publicly announced “in the absence of proof of fraud no such cry should be raised to becloud the title of the next President of the United States.” But the GOP national chairman demanded a recount in any state where the result was close enough to potentially change the outcome of the election, and so Hughes acquiesced in his party’s desire that the counting of ballots be officially certified before he issued a formal concession to his opponent.

Once again, close inspection of the votes by both sides produced confidence in the outcome (although the inspection process wasn’t organized in quite the same structurally bipartisan way as it had been by the New York bar in 1884). And once again, the American public, while understandably desirous to know the outcome of the race, was essentially patient as the process unfolded. Hughes conceded, and Wilson rightfully became president.

The years 1884 and 1916 don’t even merit a footnote in a standard civics textbook because no problem worth mentioning occurred. They are entirely consistent with the nation’s democratic tradition of the peaceful transfer of power, and putting the election in the past once it was actually over. These were successes, not failures, in the operation of democracy.

A far more serious crisis unfolded in 1876, and this is one that may indeed have swung the election the wrong way, depending how one interprets the historical record (a topic I have taken up elsewhere). Preliminary returns showed the Democrat, Samuel Tilden, winning Florida, Louisiana and South Carolina—any one of which would have been enough for him to win the Electoral College—and thus the White House. But his opponent, Rutherford B. Hayes, did not concede on Election Night. Instead, word went out from the Republican Party’s national headquarters to local partisans in all three of these states: If Hayes captured all three of these states, the GOP’s telegram said, then he rather than Tilden would achieve an Electoral College victory. Republicans on the ground in these states indeed managed to convert an apparent Tilden victory into a Hayes victory through control of each state’s canvassing board. When Congress, after a tortured process, confirmed each state’s newly certified returns in favor of Hayes, Tilden was the one who was eventually required to concede, which he begrudgingly did.

The United States would do well never to repeat anything like the protracted dispute over the 1876 election, which was far more precarious than 2000, but the republic did survive. The Hayes-Tilden dispute, unlike Bush-Gore, exposed constitutional weaknesses in Congress’ capacity to handle a seriously disputed presidential election, especially if the Senate and the House of Representatives are controlled by opposing political parties. The country actually escaped a serious constitutional crisis, not because of its adequate institutional capacity, but in large measure because of how the speaker of the House, Samuel Randall, conducted himself at the time.



***

The modern expectation of a public Election Night concession broadcast to the world is largely a product of the television era. One of the earlier episodes of that era, Richard Nixon’s concession to John F. Kennedy in 1960, set a precedent—but it is not a precedent without its blemishes. For one thing, Nixon’s televised speech, at about midnight Pacific time (he was in his home state of California), contained a much-noticed hedge: “If the present trend continues, Senator Kennedy will be the next President of the United States.” Nixon’s more formal concession actually came in the form of a written telegraph, after he woke up later on Wednesday morning, and reassessed the situation.

Nixon actually hedged for an understandable reason—there were plausible claims of electoral irregularities in two big states, Illinois and Texas, both of which could have overturned Kennedy’s victory had they gone Nixon’s way. But a key reason that Nixon conceded rather than seeking recounts was that he did not have a chance at receiving a fair recount in Texas at the time. As Nixon himself explained in his 1962 memoir Six Crises, “there was no procedure whatever for a losing candidate to get a recount in Texas.” (There was no point pursuing whether Illinois had a fair recount system, since winning Texas as well as Illinois was essential for Nixon.) Historians concur with Nixon on the inadequacy of Texas’ recount procedure, whatever else they may think of his conduct throughout his career.

Nixon’s concession served America insofar as it achieved a kind of closure, but it also highlights a serious problem that then existed. A candidate who forgoes the voluntary opportunity for a fair recount acts consistently with the norms of a well-functioning democracy. But without a fair recount process available to the candidate, a concession cannot achieve the same measure of democratic legitimacy. For one thing, the voters are actually denied the knowledge of the correct, fully verified vote count. For another, conceding defeat when the vote-counting process is flawed is just acquiescence; it is not a statement that one’s opponent won fair and square.

Accordingly, 1960 cannot be seen as a successful example of how democracy should work. Instead, together with 1876 and 2000, 1960 illustrates America’s ongoing difficulties in handling a presidential election in which the outcome is exceptionally close and problems with the voting process surface (whether those problems take the form of intentional manipulation or administrative error). Yes, Nixon conceded quickly, but that concession had—and still must be recognized as having—a problematic asterisk next to it.

Between 1960 and 2000, the tradition of televised concessions on Election Night settled in, but again, it was not always a boon to the democratic system. That tradition became so engrained that in 2000, Gore prematurely called Bush on the phone to concede on Election Night, only to call him back to retract that concession after aides frantically told Gore that the newest numbers that night showed the race “too close to call.” Had Gore made a televised concession to nation on Election Night itself, as he had wanted to, he would have been forced to undergo an extra measure of embarrassment for retracting that public statement.

Gore’s actual concession, a rhetorical masterstroke, occurred 36 days later after a memorably fraught Supreme Court decision. But despite all the prolonged turmoil over hanging chads and the like, there is nothing wrong with the fact that Gore conceded five weeks after the election itself. Rather, what hindsight shows is that he was much too hasty in his desire to concede on Election Night itself. He disserved the public, as well as himself, by hurriedly calling Bush and then calling back. It started the whole recount process off on the wrong foot, creating the impression that there had been a victory that had been taken away, rather than what really was happening, which was that the official counting process had hardly begun and was not yet capable of providing even a preliminary assessment of who would be the eventual winner.

***

So what might unfold after the polls close on November 8, given Trump’s unprecedented brazenness about doubting the election’s results? If he refuses to give a traditional concession speech on Election Night, history suggests that there could be three possible outcomes, with varying consequences and degrees of risk for the country’s stability.

1. Clinton wins by a landslide.

If Election Night returns show a blowout victory for Clinton, it should not matter to the health of our democracy if Trump himself is incapable of publicly acknowledging that he lost the election. Of course, it would be much better if he did—like every other modern candidate in the same situation. But as long as others in our political system step up and do the right thing, our democracy is not so fragile that it will crack because of the personal deficiencies of a single individual, even if that person is a presidential candidate.

Still, it will be necessary for others to make the concession that Trump, under this hypothesis, cannot bring himself to make. Senator Mitch McConnell and Speaker Paul Ryan would be key figures in this regard because of the constitutional role that Congress plays under the Twelfth Amendment when it comes to declaring officially who is the president-elect in every presidential election, disputed or not. If McConnell and Ryan announce that they accept Clinton as the legitimate president-elect under the Constitution, then they have effectively provided the necessary concession on Trump’s behalf. McConnell and Ryan, in other words, can achieve the kind of closure to the election that our democracy does require.

McConnell and Ryan, moreover, can be assisted by Mike Pence, as Trump’s running mate, among others. If all of Trump’s surrogates and allies—like Newt Gingrich, even Rudy Giuliani and campaign manager Kellyanne Conway—publicly acknowledge Clinton’s legitimate landslide victory, then Trump would be embarrassingly isolated and, in effect, inconsequential. All but the most stubborn of his supporters within the electorate would recognize the reality of the situation and move on. The more voices added to this chorus, from all across the entire political spectrum, the better—and the less risk of any unrest associated with Trump’s own refusal to concede.

2. The result is genuinely too close to call.

Given the current polls, this situation doesn’t look like much of a risk. Yet if, unexpectedly, we find ourselves on Election Night with a repeat of the initial indeterminacy that existed in 2000, then the country will need to let the process of verifying the accuracy of the returns play out. This is the least comforting outcome, should Trump really put up a fight. As I’ve written before, the system we have for handling disputed elections can end up being highly partisan, which automatically complicates and prolongs efforts to resolve disagreements. Let’s hope it would be more like 1884 and 1916 than either 1876 or 2000, but we would need to let our existing institutional mechanisms handle a recount-type situation as best as they can.

3. There’s only a theoretical chance that Trump has won.

There is a gray area between a landslide, on the one hand, and a genuine recount situation, on the other. It includes the circumstance in which the preliminary returns indicated very clearly that one candidate is the winner, but mathematically the other candidate is not entirely eliminated—at least not theoretically.

This is the situation that John Kerry found himself in on the morning after Election Night in 2004. Preliminary returns showed Kerry behind in Ohio by some 120,000 votes, with about 150,000 provisional ballots. (Provisional ballots are those cast by voters who believe they are eligible but for whom the poll-workers cannot confirm their eligibility; these ballots must be evaluated, and counted if eligible, before certification of a final result.) Kerry and his team crunched the numbers and realized that he had no realistic prospect of success: Not all the provisional ballots would be ruled eligible to be counted, and not all of them would have been cast for him. Consequently, Kerry graciously conceded at about 11 a.m. Eastern time on Wednesday.

Suppose Trump, against the current odds, found himself in a similar situation. He might look at these kind of numbers and think, “Well, 150,000 is more than 120,000, and so it’s not mathematically out of the question.” Taking the “wait and see” attitude he signaled at the Las Vegas debate, he might insist on letting the official process of verifying and counting the provisional ballots continue to its conclusion before making any announcement regarding the outcome of the election.

What would McConnell and Ryan—and other Republican leaders—do in this situation? They might make their own Kerry-like move, recognizing the inevitable and thereby putting pressure on Trump to do the same despite his inclination otherwise. If enough of the party’s leaders take this stance, they would marginalize Trump as essentially irrelevant in the same way as in the landslide scenario. But perhaps McConnell and some other Republican leaders would be more predisposed to let Trump play the process out to its official conclusion. If so, then 2016 would start to look more like 1884 or 1916. But that, in itself, would not be a disaster—assuming the vote certification process came to a clear conclusion, and either Trump accepted those results or McConnell, Ryan, Pence and others did on his behalf.

Elections, it must be emphasized, do not end on the last day that ballots are cast and the polls close. They are officially over when the counting of all the ballots has been finally certified. The lesson of our own history is that the republic is not at risk if the appropriate concession is forthcoming at that point. On the other hand, if the official and final certification of the results comes and goes without the closure of a concession, or its functional equivalent from a wide array of party leaders on the losing side, then that would be the time to worry. Until this year, we didn’t think to have such worries, and despite recent developments that understandably have shaken us in this regard, let’s hope that such concerns never actually materialize.