What Happens if Neither Trump Nor Biden Concedes?

With a president refusing to commit to a peaceful transition of power, a number of commentators have been sounding the alarm about a “rickety” U.S. electoral system seen as uniquely vulnerable to a postelection crisis. Legal scholars and a group called the Transition Integrity Project have been examining the ways in which the machinery could fail, and the nightmare scenarios gamed out are hair-raising. But while looking at points of possible legal failure is a useful exercise, it neglects an important question: Who has the power to concede?

Ultimately, all democratic transitions are based on one side being willing to concede power to another. Without a concession at some stage, power must be allocated by force: Either the military must decide, or there is civil war. There is growing concern that the United States may be arriving at a moment where a concession is no longer achievable — but if this is the case, this is ultimately a problem with the state of American politics, not its legal machinery.

To the extent that the electoral machinery matters, the American system is in many ways surprisingly robust. In ordinary presidential systems elsewhere, an election commission announces the outcome. Then, the political spotlight shifts immediately to the defeated candidate, who must make the crucial decision: Will they accept the result? It is a democracy’s most defining and most perilous moment.

By comparison, America’s electoral machinery, for all its oddities and flaws, offers greater systemic safeguards. What elsewhere is a single decision by an individual is in the United States spread out over up to two and a half months, set within a labyrinthine array of legal procedures — procedures that vest the power to concede in a vast number of actors across the constitutional system.

Any presidential election in the United States takes place in two stages: the vote-counting stage at the state level ahead of the Electoral College vote in mid-December, and a second stage in January when Congress counts the electoral votes.

The first stage involves innumerable local and state officials and courts. If even a small number of these actors break partisan ranks, they can effectively concede the election: a governor that certifies results supporting the opposing party, a judicial ruling that both sides agree to obey.