By Richard L. Hasen
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.” Jan. 24, 2020 at 10:48 a.m. EST
When the polls closed on Nov. 5, 2019, the initial count showed the governor of Kentucky, Republican Matt Bevin, losing to his Democratic challenger, Andy Beshear. But rather than concede that he fell short in what should have been an easy reelection, Bevin claimed that “irregularities” had muddled the result — though he produced no evidence to support his accusations. At first, some Kentucky legislative leaders appeared to back him, and some pointed to the legislature’s power to resolve an election dispute and choose the governor regardless of the vote. But Bevin was not popular even within his own party, and eventually, he had to concede when the local GOP did not go along with him.
We could imagine a similar scenario this November: What would happen if President Trump had an early lead that evaporated as votes were counted, and then he refused to concede? The idea isn’t too far-fetched; Trump has raised it himself. Before the 2016 election, he wouldn’t agree to accept the results if he lost. After winning in the electoral college but losing the popular count by about 3 million votes, Trump claimed — with no evidence whatsoever — that at least 3 million fraudulent votes had been cast for his opponent, Hillary Clinton. He set up an “election integrity” commission headed by then-Kansas secretary of state Kris Kobach to try to prove that “voter fraud” is a major problem. But after the commission faced attacks from the left and the right for demanding state voter records with an apparent plan to use them to call for stricter registration rules, Trump disbanded it, with no work accomplished. In 2018, the president criticized elections in Florida and California, where late-counted votes shifted toward Democrats, suggesting without evidence that there was foul play.