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

If the 2020 US presidential election is close, the race could drag on in the courts and halls of Congress long after ballots are cast, says lawyer and political commentator Van Jones. Explaining why the customary concession speech is one of the most important safeguards for democracy, Jones exposes shocking legal loopholes that could enable a candidate to grab power even if they lose both the popular vote and the electoral college -- and shares what ordinary citizens can do if there's no peaceful transfer of power.

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.

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.

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.

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?

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

Until maybe 2020,

when one major candidate is already saying

he may not accept the results
of the vote counting.

Curse you 2020.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Thank you.