The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Election 2020

A Phased Transition to Inauguration


President Donald Trump is still in denial about the outcome of the presidential election. That is, perhaps, an understandable human reaction to such a loss, but the presidency is an office that demands that the occupant be able to overcome some of their all-too-human emotions. Admittedly, Trump is not a run-of-the-mill president.

It is important that presidents be able to deliver an appropriate concession speech. It is not legally necessary for a sitting president to concede that he has lost. The loss is real regardless of whether it is acknowledged by the chief executive, and the current incumbent will no longer perform the duties of his office after the inauguration of his successor. But as Joe Biden demonstrated with his victory speech, concession speeches are important moments for reuniting the country after a hard-fought electoral campaign.

Democratic elections are by their nature divisive, and they are all the more so in our current polarized age. We tolerate and even encourage the citizenry to divide itself into partisans under competing banners and struggle with their fellow Americans for control over the levers of political power. Campaigns can be personal and bitter. The stakes of an election can be high. But when the election is over, we need to reunite under a common flag and take up our common identity as American citizens with allegiance to a common government. Politicians facilitate that task by encouraging their supporters to beat their metaphorical swords into plowshares, to accept the loss, and move on to the shared task of governing under a new leader. The competitor must accept their new role as part of the loyal opposition. Partisans must lick their wounds and bide their time until they can once again contest for leadership.

Donald Trump has thus far continued to encourage divisiveness rather than reconciliation. This is a dangerous state of affairs that is corrosive of a democratic civil order. He is not the first sore loser who might continue to question the legitimacy of the electoral victor, but he is the most prominent and perhaps the least restrained. It should be hoped that he will eventually embrace a post-presidential role that will serve the country and do honor to his historical reputation, but such hopes might well be disappointed.

More immediately, the Trump administration has not yet accepted the electoral loss, and that has implications for the presidential transition. The transition between administrations is a monumental task, and a smooth transition is all the more important in the midst of the difficult situation created by the ongoing pandemic. The head of the General Services Administration, which manages presidential transitions, has not yet begun the process. That does not prevent Biden from beginning to prepare his administration, but it severely hampers the planning and coordination that is necessary for continuity of governance. It cannot reasonably be expected that the head of the GSA will act contrary to the will of the president, but the president must quickly (if privately and quietly) release her to perform her duties for facilitating the transition.

The Trump administration should distinguish itself from the Trump campaign. Trump should recognize that Biden is the presumptive president-elect and allow the executive branch to begin planning accordingly. The Trump campaign can continue to contest the election results, pursuing recounts and litigation as it feels necessary to satisfy the president that he has indeed lost. If necessary, the campaign could drag that out for weeks until elections results are certified by the states and presidential electors are designated and ultimately cast their ballots. None of that necessitates that the transition planning be put on hold.

There is good reason for the Trump administration to accept that planning for a transition is necessary at this point. The initial count of votes is nearly complete. The path to victory for the Trump campaign through recounts and litigation is essentially non-existent. The situation might be different if Biden's electoral vote total were smaller, but a 76-vote gap cannot be closed by changing the result in a state or two. The situation might be different if the gap between Biden's vote total and Trump's in a large number of states was extremely small, but it is not. This is not the 2000 election, where everything turned on a small number of votes in a single large state. Winning a recount in one or even two states would make no difference to the ultimate outcome.

The math for a Trump victory simply does not work at this point.

state vote gap percentage gap electoral votes Biden's lead
GA 10,353 0.21% 16 44
AZ 16,985 0.52% 11 22
WI 20,540 0.63% 10 2
PA 45,727 0.68% 20 (38)
NV 34,283 2.65% 6 (50)
MI 146,123 2.69% 16 (82)


Biden has a 76 electoral vote lead on Trump. There are four states that Biden won and where the candidates are currently separated by less than one percent. The number of votes that would have to be switched are in the tens of thousands in each state. The prospect of switching those votes in any single state through some combination of recount and litigation is extremely small. Trump would need to swing all four in order to overcome Biden's apparent electoral vote lead, or alternatively pick off some number of them and add some states where the gap is much wider.

Even if you are convinced—and there is no reason for you to think so given any known facts—that there were significant irregularities in the voting or in the vote counting, and you were convinced that all those irregularities worked in the favor of Biden, the odds that any such irregularities were large enough and distributed in just the right states that, if corrected, Trump would be proven to be the legal winner of the election are essentially nil.

It is time for transition planning to begin, and really it is time for Trump to concede that he has lost and bring his campaign to a close. Even if he cannot yet bring himself to do the latter, there is no excuse not to do the former.

UPDATE: I adjusted the post (including the chart) to correct and clarify a point about the vote gap and how many states need to flip to get to a Trump victory.