[EL] The Recount, Concession, and Safe Harbor

[Reuben, Richard C.]

I am curious as to the thoughts of the group as to:

1. The effect of Clinton's concession on the results of the three recounts, and

2. The Safe Harbor of Dec. 19.

My thoughts on the first are that the concession is not binding if the recount in fact shows she won those three states. I see two main arguments supporting this:

a. The election results are the election results, and Clinton does not have the power to waive them through concession on a pre-hoc basis. If she wins those states, and wins the electoral college, she has the power to say I don't want the job post-hoc. But she can't unilaterally deny the citizens of those states the content of their votes.

b. To the extent she orally conceded, such concession was based on faulty information upon which she reasonably relied, and the manipulation of elections should not be rewarded by effectively eliminating post-election contests and limiting challenges to pre-election challenges.  This argument is somewhat problematic because she did concede, unlike Al Gore in 2000. But see Argument (a).

c. Other arguments?

d. Assuming as I do that the concession is not legally binding and that a recount would have legal effect, the next question is when it would have to be completed by to potentially change the outcome in this election.  The Safe Harbor date of Dec. 13 is not a firm obligation for the states. It's just a date by which a state's results are presumptively valid in advance of the meeting of the electors, this year on Dec. 19. I agree with Breyer's dissent in Bush v. Gore that the real date of concern for purposes of a recount in Dec. 19. Even then, there is room for litigation in our constitutional scheme, especially given the possibility of one or more of these states ultimately turning in conflicting votes.

As has been often said, we are in uncharted territory on this one, and I don't think it's beyond the realm of possibility that we could end up with the Presidency decided by the House and the Vice Presidency by the Senate. Nor do I think it would be the end of the world.

I look forward to your thoughts.

Richard

Richard C. Reuben
James Lewis Parks Professor of Law and Journalism
University of Missouri School of Law
Hulston Hall
Columbia, MO 65211
ReubenR at missouri.edu


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