Can presidential candidates win the election if they have already conceded?

After unofficial election results are published, a presidential candidate may give a statement conceding the election to his or her opponent. That concession, however, is not legally binding, and the candidate can still win the election.

Presidential election results remain partial and unofficial on election night. The popular vote is finalized in a process called canvassing and certification. During this process, elections officials verify that votes were counted correctly. Officials review rejected ballots and finish tallying write-in, provisional, and mail-in ballots. In 2020, state deadlines for certification range from mid-November to mid-December.

The certified election results determine which electors represent each state in the Electoral College. In 2020, the Electoral College is scheduled to vote on December 14. Congress will then convene on January 6, 2021, to count electoral votes and formally declare the winner. It is possible that a candidate who concedes on election night ends up winning when Congress formally declares the outcome of the election in January. 

Concessions are also retractable. In the 2000 presidential race, Al Gore (D) conceded to George W. Bush (R) in a phone call on November 8. However, as it became clearer that election results in Florida could trigger an automatic recount there, Gore retracted his concession in a second phone call to Bush. After the Supreme Court ruling in Bush v. Gore, Gore conceded again on December 13, 2000.

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U.S. Supreme Court grants expedited review of case on census count

On October 16, the U.S. Supreme Court accepted Trump v. New York for expedited review and scheduled oral argument for November 30, 2020. The case came on a writ of certiorari to the U.S. District Court for the Southern District of New York. It concerns congressional apportionment following the 2020 U.S. Census. The U.S. government is asking the Supreme Court to consider if the president can order the U.S. secretary of commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.

On July 21, 2020, President Donald Trump (R) issued a memorandum to U.S. Secretary of Commerce Wilbur Ross. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments sued the government in U.S. district court, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment. The government argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The U.S. District Court for the Southern District of New York ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The government appealed to the U.S. Supreme Court.

The government presented the following two questions to the court:

  1. Does the coalition of state and local governments have the legal right—or standing—to challenge the memorandum?
  2. Does the president have the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base?

The census aims to provide a complete count of the U.S. population along with demographic data. The 2020 census is being conducted by the U.S. Census Bureau, a division of the U.S. Department of Commerce. Statistical information on the population collected through the census every 10 years is used for congressional apportionment and the distribution of federal funds.

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Trump has appointed second-most federal judges through October 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 218 Article III federal judges through October 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 260 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through October 1 of their fourth year in office is 197.

The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 55, while Reagan appointed the least with 28. Trump’s 53 appointments make up 29% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 161. Carter appointed the most with 202, and Reagan appointed the fewest with 121. Trump has appointed 161 district court judges so far. Those appointments make up 24% of the 677 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

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