Legal Challenges, Lack of Concession

Patrick McCorkle
6 min readNov 11, 2020


In the 2020 shitshow, the presidential race was never going to be resolved cleanly.

As of Wednesday, November 11th, former VP Joe Biden is projected to be the winner by most of the media after pilling up significant margins in swing states such as Pennsylvania, Georgia, Arizona and Nevada. Mr. Biden, along with running mate Kamala Harris, gave victory speeches on Saturday night and have set up an Office of The President-Elect.

Certain organizations have declined to call a winner, such as RealClearPolitics.

The Trump campaign has launched a barrage of legal challenges based on the casting of unlawful or illegal ballots in these key swing states and others.

They and their surrogates have thrown out a lot of comparisons between their challenges and the 2000 presidential election between Texas Governor George W. Bush and VP Al Gore. The race came down to Florida. On Election Night, Mr. Bush led Mr. Gore by 1,784 votes in the Sunshine state.

There were recounts in several Democratic heavy counties. After several delays of state certification of the results, the Florida Supreme Court ordered a statewide recount on December 8th. Mr. Bush appealed to the federal Supreme Court, who ruled in his favor in Bush v. Gore on December 12th, giving him Florida’s 25 electoral votes and therefore the national election, leading by only 537 votes.

In total, it took 37 days to resolve the situation. There was a lot of uncertainty about who our next president would be during this time, but our democracy ultimately survived. It was deal with legally rather than with violence.

Aside from challenging the results of a presidential election, there’s not a whole lot Mr. Trump’s and Mr. Bush’s situations have in common. Bush v. Gore centered around one state and the margin between the candidates was extremely narrow.

The margins in key swing states in this election is far greater. ABC News has a nice interactive map so you can look at state of the races.

The closest is 12,651 in Georgia, followed by 14,220 in Arizona. Mr. Trump would need to flip these, along with Nevada and Pennsylvania. The president has mentioned lawsuits in Wisconsin and Michigan as well, in a desire to flip them. The odds of all this succeeding is quite slim.

Nevertheless, the president is well within his legal rights to pursue allegations of irregularities, voter fraud or other voting problems. The 2000 election established a precedent for legally challenging presidential election results.

What has disturbed some is his rhetoric. On Thursday, he addressed the media, stating “If you the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us.” On Friday, he declared on Twitter: I WON THIS ELECTION, BY A LOT! Since then, he has constantly tweeted about fraud, illegal ballots and the like.

This is unprecedented for the president in modern times, though the rhetoric has been quite hot about contested elections in the Trump era.

Let’s go back to the president when he was a private citizen. He peddled ‘birtherism’ from 2011 onward while toying with a run for the 2012 election. Birtherism is the idea that former President Barack Obama was not born in this country and therefore ineligible to be president.

Notice how the theory does not challenge the 2008 or 2012 election results. President Obama defeated both Senator John McCain and Governor Mitt Romney by far too great of margins to cry fraud. What the theory does do is attack the winner, removing Mr. Obama from the contest because he cannot be beaten legitimately. Mr. Trump only disavowed the idea in public in September 2016, after being pressured to do so and becoming the Republican presidential nominee.

Fast forward to the morning after the 2016 election. Secretary of State Hillary Clinton conceded to Mr. Trump in private and delivered a public concession address. However, she has not been conciliatory since. In a September 2019 interview with CBS, she said Mr. Trump knows “he’s an illegitimate president” and “there were many funny things that happened in my election that will not happen again.”

To 2020 Democratic candidates who sought her advice, she argued “you can run the best campaign, you can even become the nominee, and you can have the election stolen from you.” Ms. Clinton addressed the 2020 Democratic National Convention, stating “And don’t forget, Joe and Kamala can win by three million votes and still lose, take it from me. So we need numbers overwhelming so Trump can’t sneak or steal his way to victory.”

Ms. Clinton’s comments parallel the Democratic Party and their allies at large, who saw Mr. Trump’s election as illegitimate. It seems like a lifetime ago, but pre-COVID, the sole thing on many of their lips was Russian collusion. Speaker of the House Nancy Pelosi said there was ‘cold, hard evidence’ on July 13th, 2017.

The Mueller Report was conducted to get investigate all this. I’ve talked about its findings here and here, but suffice it to say, the report did not bring the Democrats’ arguments to fruition. Even after its release, former President Jimmy Carter argued that Mr. Trump was illegitimate.

Note a key difference from birtherism. The Democrats argued Mr. Trump did not win and the election itself is suspect, due to the small margin of his victory.

Let’s look at the 2018 gubernatorial election in Georgia for another example of contested election rhetoric. Secretary of State Brian Kemp defeated state legislator Stacey Abrams. Mr. Kemp won by about 45,000 votes in a high contested election. To this day, Ms. Abrams has not conceded, arguing on multiple occasions that the election was “stolen” from Georgians.

How come? While Secretary of State, Mr. Kemp removed 1.4 million voter registrations in Georgia from 2012 to 2018. Ms. Abrams argued that was voter suppression, referring to Mr. Kemp as a “remarkable architect of voter suppression” in an August appearance on The Daily Show. Mr. Kemp countered that he was following the law.

Like nine other states, Georgia has “use it or you lose it” laws governing registration, in which inactivity, among other reasons, means getting removed from the voter rolls. There’s no question that Georgia’s laws can be strict. For instance, the administration “flags voter registration applications” if the entered name does not exactly match government databases, which critics argue disproportionately affects African-Americans.

In a November 2019 Democratic debate for president, Senators Amy Klobuchar from Minnesota and Corey Booker from New Jersey argued that voter suppression cost Ms. Abrams her race, claims that fact checking website Politifact said had “no proof.”

Senior Legal Fellow Hans von Spakovsky of the Heritage Foundation, a conservative think tank, countered Ms. Abrams’s assertations with a variety of arguments. He wrote that “it has never been easier to vote in Georgia” due to Mr. Kemp opening online voter registration. Minorities turned out by four more percentage points in 2018 than in 2014. Additionally, a lawsuit arguing that were insufficient polling places, voting machines and staff during said election was dismissed.

The point is, Ms. Abrams and the Democratic party politicized a state election with questionable claims about voter suppression. Ms. Abrams is now a rock star of the party who was crucial in getting the state to (most likely) flip blue, yet she never conceded the 2018 race.

Mr. Kemp, just like Mr. Trump, could not have possibly won the election without shady behavior.

Just like the tactics surrounding the Supreme Court are escalating, the nature of concession and allegations of election integrity are as well. It was only a matter of time before such rhetoric arrived at the presidency.

Mr. Trump arguably started it with his ‘birtherism’ nonsense. The Democrats, especially Secretary Clinton, have never accepted his election as legitimate, constantly calling it ‘stolen’ or the product of collusion. After the Mueller Report was launched, they hyped it up consistently, believing it would be the president’s downfall. In Georgia, Ms. Abrams routinely accused her opponent of voter suppression, despite being challenged on the assertion by multiple outlets. She has never conceded and continues to argue the election was stolen.

Now, the contested election rhetoric is back in the President’s court. Since the election is close in battleground states, he attacks its integrity, rather than declaring Mr. Biden illegible as he did with Mr. Obama and birtherism.

How far will he take it?

As far as he can.

The partisans will justify, criticize or ignore these tactics, depending on if their guy/gal is doing them or is suffering from them. In a zero-sum game such as politics, they’re understandable even if you don’t agree with them. But the moderates lose out. The moderates, who are tired of the scorched earth, the other side is the enemy type stuff, get even more burned out.

Hopefully, we are at the end of the escalation cycle. I get the sense that we are. The candidates for Utah’s governorship released an ad complimenting each other, calling for civility and vowing to accept the election’s results in late October.

National politics needs to emulate them.




Patrick McCorkle

I am a young professional with keen interests in politics, history, foreign languages and the arts.