Who Cares if Trump ‘Accepts’ the Election? Not the Constitution.
The Electoral College, which delivered Donald Trump the White House after he lost the 2016 popular vote, is the constitutional mechanism the president’s critics love to hate. It may be the one that saves the nation from the scenario they increasingly fear: Trump losing the election and refusing to concede.
Kayleigh McEnany, the White House press secretary, reiterated Trump’s caginess last week. Asked whether the president would “not accept the results” of the election “unless he wins,” she replied: “The president has always said he’ll see what happens and make a determination in the aftermath.” A reasonable, and constitutional, reply would be: “So?”
The growing anxiety about a president undermining the legitimacy of an election he may lose is justified. In a republic, perceptions of legitimacy, not just the law, matter. A scenario in which, as George F. Will put it, Trump must be “frogmarched out of the White House” would be disastrous for the nation’s political fabric, not least because it would perpetuate tribalism and resentments and therefore perpetuate Trumpism. But that should not obscure the fundamental constitutional fact: There is no “determination” for Trump to make. Constitutionally, his acceptance of the results matters no more than that of any other citizen. The Electoral College is the mechanism that guarantees it.
It consists of 538 electors chosen in the November 3 election. To win a second term, Trump must receive a majority of those votes or, if no one does, be chosen by the House of Representatives according to the elaborate procedure elucidated in the Twelfth Amendment.
The Twentieth Amendment specifies what happens next: “The terms of the President and the Vice President shall end at noon on the 20th day of January.” The key fact is this: No step in this procedure requires the incumbent’s assent. As Kim Wehle has noted in this space, absent an Electoral College victory, Trump will cease to be president at 12 p.m. on January 20. The clock, not the president, is in control.
Might a variety of ominous—or, better put, pathetic—spectacles ensue? Of course. Trump could barricade himself in the Oval Office. The imagination, fueled by Trump’s refusal to state the irrelevant—that he will concede the election if he loses it—can conjure fevered possibilities from there. But none of them would make Trump anything more than a private citizen trespassing on the White House grounds. At the stroke of noon, he would not be the president of the United States in the only sense that matters: constitutionally.
One could dream up wilder plots, such as Trump retaining power by turning the military or other federal agencies against the people. As Kori Schake and Jim Golby have noted, fear of such schemes creates its own hazards, especially looking to the military to litigate the outcome of an election by force. But that scenario would require the secretive and prolonged grooming of large and bureaucratic institutions, all sworn to uphold the Constitution, all prone to leaks, and all difficult for the best of presidents to control in the best of times.
Even then, such schemes would make Trump a dictator, not a president. There is a difference. And even autocratic commands are just rants until someone follows them. Edmund Burke, urging Parliament to reconcile with the American colonists in 1775, observed that no amount of taxation or regulation would make rebels into subjects unless they fell into line: “Obedience,” he declared, “is what makes Government, and not the names by which it is called.”
The wild scenarios are as endless as they are implausible. Most assume that the body politic is more diseased than it is and that Trump is worth more angst than he justifies. If any are right, they would prove not only that Trump is a megalomaniac, which is not new information, but also that Americans have no business governing ourselves.
But, if only for sport, let’s play: A disgruntled Trump could head west, Aaron Burr-style, in the pointless hope of a separatist regime. Even if large numbers of citizens or officials chose to follow him after his term expires—which could rise to crisis levels, while simultaneously revealing that the nation has bigger political problems than the transient phenomenon of Trumpism—he would still not be president of the United States. His insistence that the election was rigged would not matter precisely because the Electoral College cannot be rigged in any strict sense, and its votes are all that count.
The idea of electors was to balance the right of the people to oversee the selection of the president with the benefits of an intermediary and deliberative body comprised of individuals who were, Alexander Hamilton wrote in Federalist 68, “most likely to possess the information and discernment requisite to such complicated investigations.” That original ideal never materialized. At least since 1796, electors have been mere instruments for registering popular votes by state.
But in a continental nation with universal suffrage, the system offers other advantages. Hamilton may not have foreseen them all, but Federalist 68 at least prophesied the Electoral College’s utility as an impediment “to cabal, intrigue, and corruption.” Since the body would be elected for a single purpose and then dissolve, it could not be groomed as an agent of usurpation. The fact that electors meet in state capitals would prevent the corruption of the whole body at one time.
And, most pertinent to the scale of contemporary America, because the Electoral College was designed for independent deliberation, no popular vote, rigged or flawless, can bind its members. It is true, as the Supreme Court recently ruled, that a state can punish electors who do not respect its popular vote. Fewer than 1 percent of electors in American history actually have. But even when they are penalized, the ballots of these “faithless electors” still count.
By statute, the 538 Electoral College ballots are officially counted in the chamber of the House of Representatives on January 6. Any of them can be questioned, in which case legislators decide the challenge. That has never been a serious issue. It could, in theory, become complicated, but not nearly as ugly and protracted as litigating 130 million individual ballots sprawled across tens of thousands of precincts nationwide. Trump could litigate his way to 11:59 a.m. on January 20. Without a majority of electoral ballots, his term expires at noon that day.
None of this diminishes the dangerous possibility of a former president undermining his successor’s authority in sharply polarized times. But the fear of that scenario—the unrelenting questions to the president about the outcome of the election, the constant hand-wringing about his enigmatic replies—risks legitimizing the false and egotistical idea that Trump’s views count. In the eyes of the Constitution, only the votes of 538 electors do. If Trump loses in November—which is a long way off—his critics might learn to love the constitutional institution they wrongly blame for his ascent.