Ted Talk: What if a US presidential candidate refuses to concede after an election?

Anthony Kapel Jones (Van Jones) is an American news commentator, author, and lawyer. He is the co-founder of several non-profit organizations, a three-time New York Times bestselling author, a CNN host and contributor, and an Emmy Award winner.

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Transcript of the Ted Talk

00:10

OK, as an attorney, as a political commentator, and frankly, as a former White House official, I used to think I knew a lot about how America picks a president. I was wrong, I did not know. 00:23

And this year, I’ve been doing some research into some of the fine print and all the different things in our constitution that we never talk about, and I’ve discovered some legal loopholes that shocked me, I guarantee will shock you, and could determine the way that the presidential election of 2020 turns out. 00:43

For instance, did you know that under our constitution a presidential candidate could actually lose the popular vote, fail to get a majority in the electoral college, refuse to concede, manipulate hidden mechanisms in our government and still get sworn in as the president of the United States of America? That’s a true fact. I know it sounds like some crazy “House of Cards” episode, and I wish it was, because then we could just change the channel, but I just described to you a real-world, real-life possibility that could occur this year, the year I’m talking, in 2020, or in some other year, if we don’t fix some of these glitches in our system. 01:25

So if you think, though, that the American people’s choice in a US presidential election should actually be sworn in to become president of the United States, please pay attention to this talk. I’m going to teach you how to stop a coup, OK? 01:40

Now, where to begin? Alright, how about this: It turns out that one of the main safeguards of US democracy is not in the constitution at all. It’s not in the law at all. It’s actually just a little tradition, it’s a little custom. And yet, this one voluntary gesture is one of the main reasons that you almost never have riots and bloodshed and strife after a US election. What I’m talking about is a concession speech. OK, it’s ironic, it’s the one speech no presidential candidate ever wants to give, and yet, it is that public address that is most important for the health and the well-being of our nation. It’s that speech, you know, when a presidential contender gives, it’s after the advisers come and the media tells them, “Look, you’re not going to get enough votes to be able to hit that magic number of 270 electoral college votes. You’re just not going to get there.” 02:38

At that moment — you don’t think about this, but the fate of the entire republic is in the hands of a single politician and their willingness to walk out there and stand in front of their family and stand in front of the cameras and stand in front of the whole nation and say, “I am conceding the race, voluntarily. Thank you to my supporters. The other person has won now, congratulations to them, let’s unite behind them, let’s move on, let’s be one country. God bless America.” You’ve seen it a thousand times. 03:09

Make no mistake, this is a remarkable tradition in our country. Because at that moment, that candidate still has at her command a nationwide army of campaign activists, of die-hard partisans, tens of thousands of people. They could just as easily take up arms, take to the streets, they could do whatever they want to. But that concession speech instantly demobilizes all of them. It says, “Hey, guys, stand down. Folks, it’s over.” Moreover, that concession speech helps the tens of millions of people who voted for that person to accept the outcome. Acknowledge the winner, however begrudgingly, and then just get up the next morning, go to work, go to school, maybe disappointed but not disloyal to America’s government. 04:00

And even more importantly, that concession speech has a technical function in that it kind of allows all the other stuff that our constitution requires after the voting, and there are a bunch of steps like, you’ve got the electoral college that has got to meet, you’ve got Congress who’s got to ratify this thing, you’ve got an inauguration to be had, all that stuff can just move ahead on automatic pilot because after the concession speech, every subsequent step to either reinstate the president or elevate a new president just happens on a rubber-stamp basis. The constitution requires it, but it’s a rubber stamp. 04:33

But we sometimes forget, candidates do not have to concede. There’s nothing that makes them concede. It’s just a norm in a year in which nothing is normal. So what if a losing candidate simply refuses to concede? What if there is no concession speech? Well, what could happen might terrify you. I think it should. 04:55

First, to give you the background, let’s make sure we’re on the same page, let me give you this analogy. Think about a presidential election as a baseball game. The end of the ninth inning, whoever is ahead wins, whoever is behind loses. That’s baseball. But could you imagine a different world in which, in baseball, there were actually 13 innings, or 14 innings, not just nine. But we just had a weird tradition. If you are behind in the ninth inning, you just come out and concede. Alright? So all those other innings don’t matter. That’s really how the presidential elections work in America. Because the constitution actually spells out two different sets of innings. 05:37

You’ve got the popular election process that everybody pays attention to. And then you’ve got the elite selection process that everybody essentially ignores. But in a close election, if nobody concedes, the second invisible process, these extra innings if you will, they actually matter a whole lot. Let me explain. 05:58

That first set of innings, popular election, it’s what you think about when you think about the presidential election. It’s the primaries, the caucuses, the debates, the conventions, it’s election night, it’s all that stuff. Most of the time, the loser on election night at that point just concedes. Why? “The American people have spoken.” All that. But according to the constitution, the game is technically not over. 06:22

After the cameras go away, after the confetti’s swept away, the constitution requires this whole other set of innings. This elite selection process stuff, and this is all behind closed doors, it’s among government officials. And this process goes from the end of the vote counting in November, through December all the way and then January. You just never think about it, because for so many generations, these extra innings haven’t mattered much because the election-night loser just concedes. So this other stuff is just a formality. 06:53

Even in 2000, vice president Al Gore gave up as soon as the Supreme Court ordered an end to the vote counting. Gore did not continue the fight into the state legislatures, into the electoral college, into Congress, he didn’t try to discredit the results in the press. Frankly, he didn’t send his supporters out into the streets with protest signs or pitchforks or long guns. As soon as the court said the vote count is done, he just conceded to George W. Bush. Because that’s what we do, that’s just kind of how we do things around here. You don’t fight in the extra innings. 07:29

Until maybe 2020, when one major candidate is already saying he may not accept the results of the vote counting. Curse you 2020. 07:40

So what can happen instead? Instead of conceding, a losing candidate could launch a ferocious fight to grab power anyway. Or to hold onto power anyway. In the courts, yes. But also in the state houses, electoral college, even in Congress. They could file, for instance, dozens of lawsuits attempting to block the counting of millions of, like, mail-in ballots, saying they should all be thrown out, they’re all fraudulent. Then, they could demand that the states refuse to certify the election because of all this alleged fraud, or interference from a foreign power. Or the loser’s party could send a rival slate of electors to the electoral college or to Congress, and say, “We’re the real electors,” and create a whole situation with that. Any of this stuff could create such a mess in the electoral college and the Congress, that the whole matter just winds up in front of the House of Representatives for the first time since the 1800s. 08:39

Now, here’s where it gets totally crazy. If the presidential election winds up in the House of Representatives, they don’t have to pay any attention at all to the popular vote or the electoral vote. It’s like the election never happened. And then it gets even crazier. The final tally in the House is taken not by delegates but by delegation. In other words, individual congresspeople don’t get to vote. It’s done by states. 09:12

Now, get your head wrapped around this. In 2020, the majority of Americans live in blue states, but there are more red states. So there’s a possibility that the Republicans in the House of Representatives could just anoint their candidate to be president, even without the popular vote, or a majority in electoral college. That could happen. 09:36

Now some people would call that outcome a perfectly legal, perfectly constitutional coup against the very idea of majority rule in the United States. That is possible under our constitution, and it can happen this year. 09:52

So what can you do about it? OK now, keep in mind, if the margin of the victory is so massive, it’s truly massive, the losing candidate’s political party is going to walk away and just let their leader go down. Nobody is going to risk a constitutional crisis to save somebody who is super unpopular. 10:11

But if the race is close, all bets are off. And then the fight could continue long past election night. You could be, you know, trying to deal impact this whole other process you never heard of before. You’re going to have to be lobbying, protesting, speaking out, contacting lawmakers, a whole other process you’ve never done before. 10:32

So landing in this completely unfamiliar scenario, what can you do? How are we supposed to act? What are we supposed to do in this situation? There’s basically three things that matter. 10:45

Number one, get informed. A number of progressive organizations are already working hard to warn Americans about this growing threat to our democracy. Some organizations you could look into and research for yourself: choosedemocracy.us, electiontaskforce.org, protectdemocracy.org, mobilize.us, allamericans.org, civicalliance.com and the Fight Back table at demos.org. All these groups are working on this. Now, on the right, if that’s your cup of tea, you could also check out The Heritage Foundation or the Government Accountability Institute. They are focused on voter fraud. But you’ve got to get informed, no matter what side you’re on. 11:29

Also, number two, you’ve got to get loud. You’ve got to get loud. Situation like this, these days, everybody is a media channel. You are the media. So use your own voice. And when you do, my advice: speak to universal American values, not the partisan stuff, OK? Speak to the American values that every American should be down with, no matter what party they’re in. The idea that every voter counts and that every vote should be counted, that’s an American value, period. The notion that the majority should rule in America, that’s an American value. The idea that an incumbent president should concede honorably and graciously and ensure a peaceful transfer of power, rather than trying to use every trick in the book to hang on to power, that’s an American value too. If you stick with those values, you’re going to be heard by a lot more people and help bring the country together. 12:28

And lastly, sorry folks, voting is not enough, You’re going to have to get active, get involved. You could join and support with your money. Some existing organizations, powerful groups, like the Leadership Conference on Civil Rights, the ACLU, NAACP, Legal Defense Fund, Indivisible, ColorOfChange.org, these groups are going to be fighting in the courts, fighting in Congress, to try to make sure that we have a fair outcome. Those groups could use your help and your donations. 12:55

But if it gets to the point where you feel that you have to take it to the streets, that you’re going to have to go outside and demonstrate and march and protest, please do it peacefully. This is not just philosophy or morality. A lot of studies have shown that it’s the peaceful protests that are more successful at challenging these would-be dictators and reversing coup attempts. It’s the peaceful ones, why? Because when the protests turn violent, all that chaos and carnage actually chases away supporters. So rather than demonstrations getting bigger, and the protests getting bigger, they start to shrink. Then the government looks reasonable when it cracks down. 13:37

So it’s actually a lot better to follow the guidance of the late great Gene Sharp. Now he has written beautifully and well about how strategically you can roll back a coup just using very smart, very disciplined, very nonviolent protest. And a lot of his best ideas, and people have been influenced by that, are available in a new guidebook called, “Hold the Line.” You can look it up, it’s called “Hold the Line, The Guide to Defending Democracy.” You can get that at holdthelineguide.com. And that can give you a real good framework to move forward in a smart, peaceful way if you feel that you’ve got to take it to the streets. 14:20

Now look, I know all this stuff is overwhelming, and I’ve got to admit, some of these steps may not be enough. A truly rogue president could call on private armed militia to try to intimidate lawmakers into keeping him or her in power. Or they could just abuse their emergency powers and try to stay in office indefinitely. So we’ve got some real problems in our system. 14:42

The best way to stop a coup is to update and strengthen our democratic system as soon as this election is over. Maybe we need to rethink, reimagine or just get rid of this whole electoral college, extra inning thing in the first place. I know for sure we’ve got to do a better job of protecting voter rights, of prosecuting voter intimidation and also making sure we’ve got the technology that nobody needs to be afraid of voter fraud. These are the steps that we’re going to have to take to make sure that we have a democracy and the democracy endures. Because never forget this: in the long sweep of human history, a democratic republic is the rarest form of government on earth. Democracies are fragile. Democracies can fail. And what citizens do or fail to do in a moment of crisis can determine the final fate of government of, by and for the people. 15:42

So let’s do our best, vote, but this time, we’ve got to stay vigilant and active, even after the ballots have been counted. We’ve got to stay active all the way through to inauguration day. 15:53

But I want to say to you, I will support the winner of a free and fair election no matter which candidate wins, and I will oppose any so-called winner who prevails by twisting the process beyond recognition. Because any American should be willing to concede an election, but no American should concede the core principles of democracy itself. 16:19

Thank you. 

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