My favorite part of election night was the concession speeches — particularly in races that may have been close enough to justify a recount.
Seriously.
In a nation as fractured as this one, there may be no electoral skill as important as losing with grace. Yet when the electoral margin is small, we’ve been conditioned to expect candidates to drag us through second, third, even fourth counts of the votes, weeks of litigation, and a grim refusal to give ground. The refusal to admit defeat has plagued the nation since the Founding, but in recent years it’s grown worse. In our highly polarized era, resentment over a candidate’s defeat in a close election can feed a cynical resentment that, as we’ve seen, flares easily into violence.
That’s a key reason concessions matter. They help democracy move forward. A study of the 2020 electorate found that a strong majority of voters who cast ballots for Donald Trump would have accepted the result as legitimate had Trump conceded. And although I haven’t the data to prove the point, I’ve long believed that the fury over the 2000 election result would have been smaller had the parties not resorted to litigation.
This advice applies even to the candidate who genuinely thinks the tally is wrong. Because consider the alternative. On Election Day, X loses to Y by a razor-thin margin. A recount a week later has Y winning ... also by a razor-thin margin. Why should the counting now end? Why shouldn’t X be entitled to an additional recount just to make sure, and so on, ad infinitum? There’s no logical stopping point. (Most of us probably trust the count that puts our candidate on top.)
Besides, recounts provide a lot less information than we imagine. In fact, there’s often reason to doubt that they’re more accurate than the election night tally.
Consider: Recounts are usually conducted by hand, by reviewing either the original ballots or paper records produced by voting machines. And though machine errors aren't unknown, hand counting can be worse.
For instance, an examination of the 2008 election in Connecticut found large discrepancies between the counts produced by optical scanning of ballots on Election Day and those produced by a subsequent hand-counted audit. (An audit involves a statistical sampling of the ballots. Many states conduct them routinely.) The literature on vote-counting methods suggests it’s the humans, not the machines, that are getting it wrong. It turns out that counting ballots by hand is … well … hard.
How hard? Different studies reach different results. Among the most troubling is a 2012 paper which reported on an experiment in which subjects were given generic ballots to count. The researchers found that although some methods of tabulating ballots by hand were better than others, errors were “ever-present,” averaging 1-2%. If the authors are right, these results suggest that in a state where 1 million people vote, a hand recount — and almost all recounts are conducted by hand — could produce as many as 20,000 errors. Unless by fortunate coincidence the errors happen to cancel each other out, that’s more than enough mistakes to swing a close election.
Moreover, even if the original tally gets the winner right, a second count, by introducing new errors and biases, can give the candidate who actually lost an unearned chance to prevail. In the words of one financial analyst, the recount “confers a free call on the underdog, at the winner’s expense.”
In this respect, my hero is Kelly Ayotte. The admiration has nothing to do with party or politics; it stems from the events of 2016, when the New Hampshire Republican, then considered a rising GOP star, lost to her Senate seat to Democrat Maggie Hassan by 1,017 votes out of 739,140 cast — a bit over one-tenth of a percentage point. Given the margin, New Hampshire law entitled Ayotte to request a recount.
As political calculations go, asking for a hand tally made sense. The margin was well below what we’ve already seen is the average error in counting ballots. Moreover, there was little risk. Even if the recount confirmed her defeat, as long as the margin remained less than 1% — as it surely would have — the state would bear the cost. Small wonder that Ayotte was widely expected to make the request.
But she didn’t.
Instead, Ayotte conceded gracefully, razor-thin margin and all. “The voters have spoken,” she said. “[N]ow more than ever we have to work together to address our challenges.” This was a significant improvement on William Jennings Bryan’s oft-cited but oddly chilly note of concession to William McKinley in 1896: “We have submitted the issue to the American people and their will is law.” And Ayotte’s concession came the day after losing by a much smaller margin.
That’s a model worth emulating.
Voter suspicion of election results was already growing well before the Trump experience, but the former president’s intransigence has driven skepticism to new heights.
I’m not saying fraud or voter suppression never happen; if you’ve got evidence, hand it to a prosecutor. But when candidates drag things out by refusing to concede, doubt and cynicism can only intensify. If we want to restore the shattered faith in our fragile democracy, we’ll need fewer cynics and more heroes. Heroism inspires precisely because it involves sacrifice.
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ABOUT THE WRITER
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
