On September 23, 2020, President Trump raised concerns about fraudulent efforts to tamper with mail-in voting, indicating that he would refuse a peaceful transition of power if November’s election were called in Vice President Joe Biden’s favor. Given the social and economic instability caused by the COVID-19 pandemic, recent racial justice protests, and a deeply contentious election cycle, the importance of a seamless transition of power cannot be exaggerated. In presidential elections, losing candidates play a crucial role in the peaceful transition of power. As demonstrated by the counterexample of the Hayes-Tilden controversy of 1877 and the concessions of Richard Nixon in 1960 and Al Gore in 2000, the rhetoric of a losing candidate has the power to undermine or legitimize the authority of the President-elect. Thus, by refusing a peaceful transition of power and favoring partisan rhetoric over political unity, President Trump not only flouts a cornerstone of American democracy, but also threatens to initiate a period of intense post-election partisanship.
In the election of 1876, neither Republican Rutherford B. Hayes nor Democrat Samuel J. Tilden secured a majority of electoral votes. Moreover, the race for the presidency came in a moment of heightened post-Civil War factionalism and political chaos following the corruption of the Grant administration and the Panic of 1873. Constitutionally, a deadlocked electoral college forfeits its authority to select the President to the House of Representatives, while the Vice-Presidential race is called by the Senate. Yet, in 1876, allegations of vote tampering in Florida, Louisiana and South Carolina and a deep partisan split between the Democratic House and Republican-controlled Senate rendered this approach futile. Congress accordingly created an electoral commission comprised of five Senators, five Representatives, and five Supreme Court justices as an alternate means of arbitration. The Commission eventually declared Hayes victorious.
To appease Southern Democrats of his election and ensure a peaceful transition of power, President-elect Hayes agreed to withdraw federal troops from the South, effectively ending Reconstruction with the Compromise of 1877. Nevertheless, Samuel Tilden’s antagonistic concession speech further stoked party tensions by questioning the legitimacy of Hayes’ ascendancy. Criticizing the corrupted electoral mechanism that resulted in his defeat, Tilden assured his supporters that “the sovereignty of the people shall be rescued from this peril and be re-established.” Tilden warned of the dangerous precedent set by the 1876 election, and signaled that the American people, effectively disenfranchised, ought to check their illegitimate executive throughout his term in office.
To Hayes’ detriment, the election controversy fueled by Tilden’s concession plagued his presidency as Democrats continuously endeavored to invalidate the results of the 1876 election. In 1878, Representative Thomas Swann introduced a House Resolution calling on the Supreme Court to revisit the Election Commission’s decision in favor of Hayes, while Representative Clarkson Porter demanded investigation into the allegations of vote tampering in Florida and Louisiana. Both of these resolutions, clearly inspired by Tilden’s condemnation of electoral corruption, risked setting the dangerous precedent of removing a president by means other than impeachment. Thus, Tilden’s inimical post-election rhetoric empowered Congressional Democrats and legitimated extra-constitutional attempts by partisans to undermine the power of the presidency.
Unlike the 1876 election, the Electoral College decisively elected John F. Kennedy in 1960, who secured 303 votes to Richard Nixon’s 219. Nevertheless, President-elect Kennedy’s 0.2 percent popular vote margin, accompanied by questions about the legitimacy of vote counts in Illinois and Texas, encouraged partisan controversy. Nixon, perhaps sensing the fruitlessness of an electoral dispute, conceded to Kennedy. Unlike Tilden’s affirmation of factional frustrations, Nixon expressed support for his opponent, declaring, “Our country cannot afford the agony of a constitutional crisis—and I damn well will not be a party to creating one just to become President or anything else.”
Likely a partial product of Nixon’s cordial concession, President Kennedy enjoyed favorable approval ratings, reaching 73 percent in February 1963, with 74 percent of the American public expecting his reelection, according to a March 1963 Pew Research survey. Citizens were also confident about the state of U.S. power and optimistic about the economy. Though the controversies surrounding Kennedy’s election were not nearly as significant as those of Hayes’, their opponents’ concession rhetoric set the tone of both first-term administrations. Had Samuel Tilden expressed Nixon’s hesitance to invoke a constitutional dispute, it seems unlikely that such constant, creative measures to secure Hayes’ removal would have been undertaken.
Most recently, Vice President Al Gore employed a tone of respect and restraint in his concession of the 2000 Presidential race. After weeks of post-election uncertainty, the Supreme Court ended Florida’s recount, effectively declaring Bush’s victory despite Gore’s popular vote majority. Forfeiting on the heels of a highly contentious election cycle, Gore emphasized the importance of patriotic unity after a period of division by addressing his opponent, “I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country.
On the brink of the shortest presidential transition in history—a mere 39 days—Gore’s emphasis on patriotism over partisanship proved invaluable to President Bush. In the transition period—ideally the two months between Election Day and Inauguration Day—members of the President-elect’s transition team must conduct a review of each federal agency, screen and prepare nominees for thousands of positions, and receive briefings on sensitive national security and policy issues. More than merely a transfer of power between Presidents, the transition requires a complete overhaul of the upper and middle management functions of the federal government while maintaining stability and continuity of executive power. Patriotic unity among the incoming and outgoing teams is fundamental to the operation.
Because of his experience with an abbreviated transition, combined with the American security vulnerabilities exposed by the 9/11 attacks, President Bush appreciated the importance of bipartisanship in the transfer of power. In 2008, therefore, facing the Great Recession and a growing threat of terrorism, the Bush administration and Obama team collaborated to execute what is considered the gold standard of presidential transitions. As Chris Lu, a senior member of President-elect Obama’s transition team, explained to the Atlantic, “The success of the transition planning was in large measure because of the cooperation we got from the Bush White House.”
Since the 2008 election, the Pre-Election Presidential Transition Act has codified transition reforms, including funding and federal office spaces made available to candidates before the election. However, in the event of a Biden victory, President Trump’s threats of a hostile transition, perhaps foreshadowing an antagonistic concession speech, could undermine these advancements and pose a threat to national security during an ongoing public health crisis. As the historical case studies of Tilden, Nixon, and Gore demonstrate, an unyielding runner-up can taint an incoming president’s first term by promoting Congressional gridlock and contributing to executive powerlessness. And given the importance of a coherent approach to the COVID-19 pandemic, the lapse in authority produced by a hostile transition puts American lives on the line.
Refusing to forfeit in the event of a Biden victory, President Trump would hamper the Biden team’s ability to garner key information from federal agencies and executive officials, effectively condensing the transition period and undermining a President Biden’s authority. Facing an intensely partisan political environment, A Tilden-like concession speech by either candidate that laments the corruption of the electoral system and fuels partisan divisions will destabilize a peaceful transfer of power, exposing the United States to foreign and domestic threats. And, hostile post-election rhetoric has the potential to encourage further Congressional gridlock, restricting crucial coronavirus relief.
With races in key battleground states too close to call on election night, President Trump offered a concerning harbinger of his attitude toward concession. “Frankly, we did win,” Trump declared, conflating the lengthy process of ballot counting with fraud and threatening to appeal the election to the Supreme Court. In contrast, Vice President Biden appealed to bipartisan cooperation in his address on Wednesday afternoon, “So once the selection is finalized and behind us, it’ll be time for us to do what we’ve always done as Americans, to put the harsh rhetoric of the campaign behind us… to unite, to heal, to come together as a nation.” By recalling the President’s fiduciary duties to the American people, Vice President Biden positioned himself as a champion of democratic values, regardless of his political fate. Ultimately, relinquishing authority in the event of defeat is the duty of any elected official, who ought to consider transition responsibilities and peaceful concession a central aspect of their service.