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Legal Effect of a Concession by a Presidential Candidate?

A friend of mine asks:

Imagine I'm [a Candidate X] supporter, in Pennsylvania, and I got to the polling place at 7 p.m. to find a six-hour line. At midnight, I am still waiting to vote when I hear on the radio that [Candidate Y] has conceded. Does that mean I can finally go home? Or should I stay and vote, on the theory that the concession has no meaning, legally, and the votes will still have to be counted?

An interesting question -- I suspect likely purely academic, but, hey, this is an academic blog. Here's my tentative thinking:

1. To begin with, there's no caselaw specifically on this point, so the answer may well not be entirely clear. (I'd love to hear, by the way, if there's some caselaw for other kinds of elections, though that would be at most persuasive, and not binding, as to the Presidential election.)

2. In many situations, a person may be legally bound to a concession he made -- for instance, a withdrawal from a particular contracting process, or a promise (even short of a binding contract) to do something -- especially when others have relied on this concession; a common term for this is "estoppel." But this needn't always be dispositive, especially when the rights of other parties (here, the voters and electors) are involved. Nor is this a normal sort of business transaction, where standard legal rules of estoppel may routinely apply.

To illustrate this, let's say that Candidate Y concedes, believing that he has lost, but it turns out that he has a majority of the votes cast ("majority" being defined as "majority according to the popular vote as reflected in the likely electoral vote"), and that he might or might not have a majority of the votes that would have been cast had he not conceded. Treating his concession as binding affects not just his interests, but the interests of the voters who actually voted, the majority of whom actually does not want his rival as President (though of course we should remember that the majority result might have been different were it not for his concession). It also affects the interests of the Electoral College and the House. Even though Candidate Y has the constitutional power to refuse the office, and even if such a refusal once made and relied on is treated as binding, he has no constitutional power to just turn the office over to his rival, or to undo the election of his electoral college slate, or to instruct his electors to vote for his rival.

3. As item 2 has foreshadowed, there are at least four possible constitutional players in this decision: The Electoral College, the Congress that counts the Electoral College votes (see the 12th Amendment for the roles of both, and the 20th Amendment for a possible extra role for Congress), the state legislatures that direct the appointment of the electors (see Article II, section 1), and the courts (see Bush v. Gore). There really is no precedent, as I suggested in item 1, that makes clear what any of these players would do.

My sense is that, whatever the courts' power to affect the continued counting of the vote, once the vote is counted and electors are chosen, the courts have no authority to interfere with the electors' and Congress's decision -- those decisions are constitutionally left to the electors and to Congress. If the law in some states explicitly leaves to the state legislatures the appointment of electors in cases like this, then the state legislatures can make a decision (without supervision by the courts, I believe); but I doubt that any state legislatures actually have such laws, and I doubt that they can just make them up as they go along.

So the main players, I assume, will be the electors. Though the electors in some states, I believe, are required by state law to abide by the election results in that state, I don't think such a command is legally enforceable; so if the electors decide to change their votes, they would be entitled to. Then it will be for Congress to count the votes, again, I think, without court supervision, and in the process decide whether the electors should be considered duly elected, or whether Candidate Y, if he has the majority of the electoral votes, nonetheless "failed to qualify" by virtue of his concession. I don't think there'd be much by way of legal standards to guide either group. Much would depend on the electors, the Representatives, and the Senators' sense of justice, of what is best for the country, and of what the public wants or should want -- and naturally all this will be inevitably affected by the players' political affiliations.

4. In any event, if candidate Y does concede prematurely, thus affect the behavior of enough voters that the premature concession might have made a difference, and then continues to fight the matter -- creating a constitutional crisis that was caused by his own error -- that strikes me as quite bad behavior on his part. (Note that this is not the same as Vice-President Gore's actions in Bush v. Gore, since Gore's concession did not affect the casting of any votes, and thus didn't cause the sort of uncertainty that the hypothetical posits.) I would hope that the electors and Congressmen would be influenced by this in deciding against him, to the extent that they feel their constitutional role entitles them to consider this (and I think it should, unless they conclude that the constitutional text is somehow binding on the question).

And I would hope that candidate Y would avoid creating such a situation, either by delaying his concession, or by sticking by it, and instructing his supporters (among the electors and among the Congressmen) to treat him as no longer being a candidate. If the consequence is the frustration of the possible will of slightly more than 50% of the voters, and the enforcement of the will of slightly less than 50% of the voters (which we can't even be sure of, given the hypothesis that the concession might have changed the outcome), it seems to me that the avoidance of a serious constitutional crisis is a national benefit that more than outweighs the national cost of this consequence.

Anderson (mail):
IIRC, Gore retracted his concession in 2000, much to the annoyance of Bush.

-- Ah yes, at 3:30 a.m. on the morrow of Election Day.

That was one of the bad arguments *not* used by the majority in Bush v. Gore. I wonder how they missed it.
11.3.2008 1:52pm
Dan Bentley (mail):
Do concession speeches generally include any phrase that can be construed as a concession? I see things like "congratulate him on his victory", but things like, "I lost this election" just aren't in my mind. I definitely see phrases like, "this election should be decided by the voters", which strikes me as a concession only as much as the voters decide it.

Could you give an example of what in a concession speech is technically a concession?
11.3.2008 1:53pm
Anderson (mail):
Sorry, I should've added the immortal conversation b/t Gore and Bush:

Gore told him, "Circumstances have changed dramatically since I first called you," according to aides to both men who heard each side of the conversation. "The state of Florida is too close to call," Gore said.

"Are you saying what I think you're saying?" Bush asked brusquely and disbelievingly. "Let me make sure that I understand. You're calling back to retract that concession?"

"Don't get snippy about it!" Gore spat back. "Let me explain," he continued. If Bush prevailed in the final count, Gore would immediately offer the Texas governor his "full support. But I don't think we should be going out making statements with the state of Florida still in the balance."

"My little brother says it's all over," Bush told Gore.

"I don't think this is something your little brother gets to decide," the vice president answered icily. (Or, as heard by another witness, "With all due respect to your little brother, he is not the final arbiter of who wins Florida.")

"Do what you have to do," Bush said.


Plagiarized from here and here.

Moral of the story: Don't concede early, so that you'll never have to call back and retract your concession.
11.3.2008 2:00pm
some dude:
RE: Al Gore unconceding the election in 2000.

That would probably have resulted in a dual in the olden days. Simpler times.
11.3.2008 2:01pm
Oren:

I believe, are required by state law to abide by the election results in that state, I don't think such a command is legally enforceable; so if the electors decide to change their votes, they would be entitled to.

I was of the impression that the States cannot bind their electors, but they can punish faithless electors criminally. That would seem to have the same net effect.

Interesting post tho . .
11.3.2008 2:02pm
some dude:
er... duel.
11.3.2008 2:03pm
HoyaBlue:
A dual? Isn't there already two of them? Are you implying, sir, that BushGore was in fact one person prior to this event? Interesting....


/snark.
11.3.2008 2:05pm
Goobermunch:
With all this talk of candidate Y, I can't help but speculate . . . . Are you referring to the "McCayne/Paylin" ticket?

--G
11.3.2008 2:07pm
Dave N (mail):
For non-Presidential elections, I can't imagine a candidate conceding before the polls are completely closed in his or her state--though I do realize that some states (Alaska most notably but also several in mid-America) are in more than 1 time zone.

I remember a Democratic talking point in 1980 was that Jimmy Carter conceded too early and that his early concession cost several close Senate and Congressional races--although I am unaware of any studies that actually bore that complaint out.
11.3.2008 2:08pm
arthur:
The original post is way overthought. The correct answer is that concession speeches are not binding (nor for that matter are withdrawals after ballots are printed, although the candidate can still refuse to take office). On the local and state levels, concessions undone by recounts are not uncommon.
11.3.2008 2:12pm
byomtov (mail):
Though the electors in some states, I believe, are required by state law to abide by the election results in that state, I don't think such a command is legally enforceable; so if the electors decide to change their votes, they would be entitled to.

As a tangential issue, isn't it time we stopped this nonsense of there being actual electors? It seems utterly pointless, only providing yet one more opportunity to mess up the election.

Note that I'm not advocating abolishing electoral votes here (that's a different argument). I'm just wondering why we can't simply assign the electoral votes mechanically according to state election results, and stop having people cast the electoral votes.

All this practice does is leave room for manipulation and political skulduggery.
11.3.2008 2:19pm
Dave Hardy (mail) (www):
As I recall at common law the election was binding, and the electors could even force a man, who hadn't run, to serve. Some areas in New England used it as a progressive tax. Elect the wealthiest man to some minor burdensome post, make him pay a fine to get out of it.

In Parliament, if memory serves, there was no legal ability to resign. But a member became disqualified if he took a Royal appointment. So they kept open a trivial Royal position with no duties and a tiny salary, and if you wanted out of Parliament, you got its leadership to get the monarch to appoint you to that, and you were off the hook.

So it looks as if a concession probably binds no one.
11.3.2008 2:20pm
Houston Lawyer:
On that Bush/Gore exchange, I have to believe that both sides cleaned up the actual language. I find it hard to believe that the governor would have had that level of self-control.
11.3.2008 2:27pm
some dude:

byomtov: Note that I'm not advocating abolishing electoral votes here (that's a different argument). I'm just wondering why we can't simply assign the electoral votes mechanically according to state election results, and stop having people cast the electoral votes.

All this practice does is leave room for manipulation and political skulduggery.


It's a feature not a bug. Suppose Bob Barr managed to get electors elected. This causes no candidate to get a majority of electors. Bob Barr electors now have a choice. Either throw their weight behind McCain or Obama (putting them over the top), or be hardnosed about it and cast ballots for Bob Barr, which would throw the election to the Congress.

There was also a strategy back when where a candidate who was popular in one region of the country and a candidate who was popular in another region of the country planned to pool their electors and encourage them to vote for just one of them. It didn't work but it sounds interesting.

The electoral college is also one of the last vestiges of federalism in this country in that the legislatures (in theory) have the final say on who elects the president. Even if it is symbolic.
11.3.2008 2:31pm
DG:
{Though the electors in some states, I believe, are required by state law to abide by the election results in that state, I don't think such a command is legally enforceable; so if the electors decide to change their votes, they would be entitled to.}

Of course, an elector can vote for whomever they want. They question is, can they be punished for it, afterwards? e.g. Obama Elector is in a state that "binds" electors to the results of the plebescite; Obama Elector then votes for McCain when Electoral College convenes. Obviously, you can't compel the Obama Elector to vote for Obama. But can you then fine or imprison the Obama Elector, after the fact, for violating the state law?
11.3.2008 2:33pm
DG:
{As a tangential issue, isn't it time we stopped this nonsense of there being actual electors? It seems utterly pointless, only providing yet one more opportunity to mess up the election. }

Among other things, its a circuit breaker against elections fraud (thats as opposed to counting the national popular vote). Should there be REAL electors? Of course not, its stupid. But its a nice political patronage perk and another way to waste our money.
11.3.2008 2:35pm
Paul Milligan (mail):
Election promises can not, or at least are, not, held as contrataully binding. The campaigning and voting processes do not create a contractual agreement between candidate and voter. If they did, politicians would have to actually DO what they PROMISE, and that's as likely ( or less so ) than Heidi Klum showing up at my place tonight for sex. With me. In person.

Therefore, anything a candidate says during a race, including 'concessions' is merely free speech, advisory, and non-binding.

Votes, once cast, ARE binding ( on that voter ), and the process to add them up is unchanged ( or should be ) no matter what anyone says later, like 'I give up' or I dont' give up'.
11.3.2008 2:42pm
A Law Dawg:
In Parliament, if memory serves, there was no legal ability to resign. But a member became disqualified if he took a Royal appointment. So they kept open a trivial Royal position with no duties and a tiny salary, and if you wanted out of Parliament, you got its leadership to get the monarch to appoint you to that, and you were off the hook.


You know, somebody, maybe one of the contributors to this blog, or maybe even a guest contributor, should really look in to this!
11.3.2008 2:42pm
Anderson (mail):
I find it hard to believe that the governor would have had that level of self-control.

Tut tut, sir, you underestimate the influence of Dubya's acceptance of Jesus Christ as his personal savior.
11.3.2008 2:45pm
JamesInSeattle (mail):
One other thing to add - people here talk about the polls "closing" as if that still means something. Don't forget that ballots can take days to get through the mail; here in Washington, they just have to be postmarked on election day, not received. I believe that's pretty common across the country.
11.3.2008 2:55pm
byomtov (mail):
Suppose Bob Barr managed to get electors elected. This causes no candidate to get a majority of electors. Bob Barr electors now have a choice. Either throw their weight behind McCain or Obama (putting them over the top), or be hardnosed about it and cast ballots for Bob Barr, which would throw the election to the Congress.

I think this is a bug. If that happens, wouldn't it be preferable to have Congress choose, rather than Bob Barr? (Or if you like Barr, imagine some third-party candidate you consider a nutcase).

Among other things, its a circuit breaker against elections fraud (thats as opposed to counting the national popular vote). Should there be REAL electors? Of course not, its stupid. But its a nice political patronage perk and another way to waste our money.

DG,

Note that my comment was not about going to a popular vote. It was doing what you suggest - just not having real electors. And you're right that having real electors wastes money, among its other faults.
11.3.2008 2:58pm
Chris C.:
Why concede when you can just "suspend" your campaign?
11.3.2008 3:00pm
Joe Kowalski (mail):

here in Washington, they just have to be postmarked on election day, not received. I believe that's pretty common across the country.


Not in Oregon. If your ballot isn't in the hands of the County Clerk by 8 p.m. tomorrow, it is not counted, no if's and's, or but's. Voters have their ballots for a full two weeks before "election day", and if you don't get your ballot in on time, or put it in the mail Monday afternoon, and it doesn't get counted, it's your own damn fault. Frankly, I think this is the only sane policy possible for absentee/voting by mail.
11.3.2008 3:36pm
Bo:
1980 -- Jimmy Carter conceded before the polls closed in the Pacific timezone. Not like the Presidental outcome was in doubt, but there's -anecdotal- thought that it might have lowered Democratic turnout in Senatorial races that were yet to be decided.
11.3.2008 4:04pm
Bo:
Dave N --

Apologies; I didn't see your comment before posting.

I can't think of any studies offhand, either. The only anecdotal evidence I can recall was in a biography of Frank Church from Idaho. I think it was his press secretary recalled seeing voters in the Idaho Panhandle (Pacific time) drive away after Carter conceded. Not sure whether it would have affected Magnuson in Washington as well, or whether Carter just proved toxic to anyone labelled a Democrat.
11.3.2008 4:09pm
some dude:

byomtov

Suppose Bob Barr managed to get electors elected. This causes no candidate to get a majority of electors. Bob Barr electors now have a choice. Either throw their weight behind McCain or Obama (putting them over the top), or be hardnosed about it and cast ballots for Bob Barr, which would throw the election to the Congress.

I think this is a bug. If that happens, wouldn't it be preferable to have Congress choose, rather than Bob Barr? (Or if you like Barr, imagine some third-party candidate you consider a nutcase).
No, I would not rather have Congress choose. :O

It is kind of like an automatic runoff election. The Barr electors choose their second choice. If done right, people could vote their conscience knowing their second choice would be likely to get in.
11.3.2008 4:13pm
pjohnson (mail):
This is somewhat off topic, but you did mention the XXth Amendment, so here's the question: The 20th amendment provides that if the president-elect dies before noon on January 20th, the vice-president-elect will become president on that day (or words to that effect).

Who is the president-elect? The person whom everyone acknowledges has been elected on the day after Election Day, or the person who has received a majority of votes in the Electoral College? What happens if the apparent winner dies before the Electoral College meets?
11.3.2008 4:47pm
ChrisIowa (mail):

Who is the president-elect? The person whom everyone acknowledges has been elected on the day after Election Day, or the person who has received a majority of votes in the Electoral College? What happens if the apparent winner dies before the Electoral College meets?

The president-elect is the person chosen by the electors on Dec 15. The popular vote has no effect other than to choose electors, so there is no President-Elect until the votes are counted on January 3. If one of the contestants dies before Dec 15, the electors can choose someone else as President. If the person getting the most votes on December 15 is dead before Jan 3, the President-Elect is dead as soon as the votes are counted, so the VP-elect gets the job.
11.3.2008 5:03pm
The Mojo Bison (mail) (www):
This threat is beginning to skirt dangerously close to Huff-Po-level wish fulfillment fiction. Having said that, it would be a nightmare on many levels if Senator Obama won the election and Something Very Bad happened <i>before</i> December 15. What would the electors do? Would they vote Biden as President, to honor the spirit of Article II and the 20th Amendment? Or would the DNC put forward someone else's name as the designated Presidential elector option? One name immediately comes to mind...
11.3.2008 5:39pm
Sarah (mail) (www):
Concessions don't mean squat. There are plenty of examples from history of people conceding all kinds of things and then being perfectly happy to take the thing they conceded - the first that comes to my mind is Jim Rhodes saying something like "face it, we lost, I'm going to bed," and getting woken up by his daughter the next morning with the news that he was Ohio's next governor. Not only was he happy to fill out that term, he ran for a couple more after that (this was after his previous two terms as governor, during the second of which he ordered the National Guard troops into Kent State -- and after he sat out for four years because of Ohio's two-terms-and-a-break-in-between term limit law.)

But a concession speech has exactly as much legal effect as a candidate dancing naked on the tables of his victory party with a lampshade on his head - it might change your opinion of the guy, but it's the votes that will actually count.
11.3.2008 6:10pm
Opher Banarie (mail) (www):
More direct affects on election night voting has been the early (ie, before the polls close) predictions by national media that A or B or C has happened and so-and-so will win the election. I'd really like silence from the media until all polls are closed nationally. The rumors and hysteria they stir is not productive by any measure.
11.3.2008 6:32pm
Crunchy Frog:
Going back to the original email - unless there was only one question on the ballot (Candidate X or Candidate Y), it would be stupid and irresponsible for supporters of either candidate to not vote one the rest of the state and local downballot candidates and initiatives.

Then again, perhaps that's exactly the kind of person that shouldn't be voting in the first place.
11.3.2008 7:46pm
David Hecht (mail):
FWIW, when I was growing up in New York in the 1970s, state law had it that you couldn't be removed from the ballot except for one of three reasons:

1. You were dead.
2. You moved out of state.
3. You were nominated for a judgeship (elected).

The practical effect of this was mainly on the minor parties (Conservative and Liberal). Each one generally endorsed one of the major-party candidates (not always in the obvious way: Lindsay famously ran for mayor on the Republican and Liberal lines, and some upstate Democrats got the Conservative endorsement). Since in some instances, the candidate was selected by a primary that took place after the filing date, the Liberals and Conservatives would often nominate someone as a placeholder candidate for Senator or Governor, and then--when the dust had settled in the major-party primary--that person would suddenly be nominated for some judgeship that they had no chance of winning.
11.3.2008 8:17pm
Paul Meyerhoefer (mail):
FYI --

The it has never happened, twenty-four states have statutes which allow electors who fail to vote for the candidate to whom they are pledge to be criminally sanctioned for such failure; thus, the result of the state election is, in theory, binding.

http://www.fairvote.org/e_college/faithless.htm
11.7.2008 10:47am