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The Effect of a Concession:

The issue of the legal effect of a concession by a presidential candidate actually does have potential legal effect in at least one area--the recognition of an "apparent" president and vice-president-elect under the Presidential Transition Act of 1963. This was an issue that arose during the Florida litigation/recount in 2000 with respect to the obligation of the General Services Administration to release resources related to a presidential transition.

I wrote up the history of the act, and the potential legal effect of a concenssion in a law review article soon thereafter, which is available here (later published in the BYU Law Review).

I argued in the article that the idea of a concession was not a legally-relevant concept, at least in the context of the act. And it is hard to see how or why a concession would have a legal meaning at all. In fact, if you recall, Al Gore originally called Bush and conceded the election late at night, but on his way to his concession speech he learned that he might still win and then called Bush back and retracted his concession.

More generally, many of the rights that arise in the context of elections are rights that flow to voters, not to the candidates. For instance, during the 2000 election the Democratic Party of Florida filed a series of challenges to the validity of certain absentee ballots submitted by servicemembers. For obvious political reasons, Gore did not want to be a party to that litigation. A concession by Gore should not effect the rights of the Florida Democratic Party to sue and if this resulted in Gore winning the state and a Gore slate of electors being named, it is hard to see why a Gore concession should have legally-binding effect. So to the extent that candidate's concessions could detrimentally impact voters' legal rights, there is no basis for believing that a concesison should have predominant legal effect.

So, in thinking about Eugene's post, I'd submit that would be the way to think of it--did Gore's original concession to Bush have any legal effect? If so, can it be retracted? If it can be retracted, how could it have any legal effect? Does Bush have to rely on it (like an estoppel theory)? Would a third party have to rely on it? If so, who? What if the concession was private and not public? What if public but not private? What if Gore was on his way to give a public concession speech but was killed in a car accident and was never able to concede?

What I think this string of questions raises some questions about both the logical and practical coherence of vesting concessions with legal effect.

Tom Round (mail):
This is where you blokes need a Queen (or at least a Governor-General) who can appoint a caretaker Cabinet on election night, once the results are clear but before the elected representatives have assembled to vote on the new executive team...

No, no, no, just kidding. The AGS set[-]up works fine.
11.3.2008 3:50pm
ChrisIowa (mail):

This is where you blokes need a Queen (or at least a Governor-General) who can appoint a caretaker Cabinet on election night, once the results are clear but before the elected representatives have assembled to vote on the new executive team...

We call the caretakers "Lame Ducks"
11.3.2008 4:13pm
NowMDJD (mail):
I don't see how an estoppel theory can be brought to bear on this problem.

First, any reliance has to be reasonable. Suppose Senator Obama thought he lost and conceded. As a result, Senator McCain resigned his senate seat only to find that Obama won in the recount. Arguably, this reliance is not reasonable. If you are in the senate and sophisticated enough to run for president, you should wait until your election is a sure thing before you quit your current position. Maybe you should wait until the Electoral College votes before you resign, or even until the vote is certified by the senate.

But if, arguendo, the reliance is reasonable, then what should be the remedy? In an employment situation, certainly not specific performance-- maybe damages. Salary for the rest of the senate term? Campaign contributions? Anticipated bribes, if Senator Stevens' opponent concedes?

As for third parties, there probably is no basis for estoppel when one candidate concedes an election to another. I can't conceive of a legal agreement with binding consideration between a third party and the ultimately losing candidate. To extend my hypothetical, if McCain promised before the electoin to make me Secretary of Health in return for my campaign contribution, this probably not legal consideration. (I know nothing about these things, but can't imagine that you can buy an appointment to office.) If I resign my day job when Obama concedes, it's my hard luck. You must come into a court of equity with clean hands. If McCain's pre-election promise to me were gratuitous, then we the situation would consist of reliance stacked upon reliance (mine on McC and McC on BO), and it seems as though there is no way this reliance would be reasonable on my part.

So I don't see estoppel as an issue, but maybe I just don't have enough imagination.
11.3.2008 4:57pm
A. Friendly:
What about standing? In some states, only the candidate has the standing to contest election certification. If the candidate concedes, could that not be construed as waiving standing to challenge the results?
11.3.2008 5:01pm
Tom Round (mail):
Nah, the Westminster system is the opposite of US lame ducks. If the results are clear on election night, the leader of the winning party goes to kiss hands and get sworn in as Premier/ Prime Minister the next day, and takes over from there. The newly-elected Parliament may not meet for some weeks later, and the first vote taken with any *legal* consequences (usually on a supply or budget bill) may not occur until months after the election.

The only way you can get "lame ducks" under the Westminster system is if no party wins a majority, and the Head of State has to wait until the new Parliament meets and actually votes. Usually the incumbent Premier-Minister hangs on by default, but sometimes s/he loses.
11.3.2008 6:40pm
K:
I'll use Bush and Gore. Two funny fictitious names.

Gore tells Bush he concedes. But Gore has nothing to cede. So there is nothing Bush can accept.

Neither man controls the process: vote counting, the certification of electors, the formal counting of electoral votes.

Any such concession is simply conversation. At most Gore is telling Bush that at this moment I feel I have lost and have no intention of contesting the matter.

The electoral college is unique and the Constitution guides the ritual. It is not a TV remote one candidate can just hand to the other.

In a routine election, perhaps for a Mayor, the courts and/or statutes might treat a concession differently.
11.4.2008 2:35am
Tom Round (mail):
Well, Constitutionally the presidency is different because the Electoral College operates on a 100% write-in basis. Yes, there are statutory provisions about registering an exporatory committee, but these affect only fundraising and spending. From the US Constitution's viewpoint, no one is officially a "candidate" for President or VP until the Electors vote and the Senate's president opens the ballots in DC. The, either one "candidate" gets a majority and is elected, or else the top three go to Congress and one of them is elected. A candidate may comply fully with the statutory framework, spend millions of dollars, and poll millions of votes, but if s/he wins no Electors, then constitutionally s/he isn't a "candidate". Conversely, someone who never campaigned but who attracts a single "defector Elector" shows up on the constitutional radar. From this viewpoint, Ross Perot was not a "candidate" in 1992, but Ronald Reagan was a "candidate" in 1976 thanks to Dr Lloyd Bailey (and in theory RR could have been elected if neither Ford nor Carter had won 270 EVs and the election had devolved to the House).
11.4.2008 3:13pm