Should Biden bow out now — before he officially becomes the party’s nominee — legal experts say replacing him on the ballot would be relatively straightforward. The process would become significantly more complex and legally murky, however, were he to drop out once he has been officially nominated.
Time is tight: Biden is slated to become the nominee through a virtual roll call of party delegates Aug. 5, two weeks before Democrats gather for their convention in Chicago on Aug. 19.
Democrats who have urged the president to stand aside want a resolution quickly so that they can avoid a procedural quagmire. Biden’s backers, meanwhile, want the internal debate to end swiftly so that the party can resolidify behind him, with no ambiguity about his status.
The agreement on the need for expediency ends there.
“There is deep concern, but there is not consensus on what to do,” said one House Democrat who’s running for reelection in one of 29 seats identified by the Democratic Congressional Campaign Committee as the most competitive this year.
Experts said Republicans could try to object to Biden’s replacement in court. But if he drops out before the convention and delegates vote on someone else as the Democrats’ presidential pick, they said, any challenge to placing that person on the ballot would immediately be dismissed. If Biden were to drop out after becoming the Democratic nominee, the legal landscape is a bit less clear.
The Heritage Foundation has offered a window into likely Republican efforts to challenge a replacement to Biden, naming three critical battleground states — Wisconsin, Georgia and Nevada — where they claim they could wage a legal battle. Some legal analysts say the strength of their case would depend on the timing and circumstances of Biden’s exit. Others say there are no grounds for an outside group to intervene because the selection of a presidential nominee is up to the national parties.
The pressure of state ballot deadlines and possible legal challenges adds yet another tricky factor into an already fraught political environment, with Democrats divided over whom they should back to face former president Donald Trump in the November election.
Ballot deadlines are typically a somewhat obscure realm of election law with little impact on a party’s most weighty decisions. Now they matter, and Democratic lawmakers have expressed confusion about how the deadlines, which vary by state, play into any scenario in which Biden is replaced.
Rep. Andy Kim (D-N.J.), who is running for the U.S. Senate, told reporters on Capitol Hill on Tuesday that Democrats are trying to figure out “what are the actual deadlines” and said it’s “hard to make a decision without fully understanding that.”
Former House speaker Nancy Pelosi (D-Calif.), said in an appearance on MSNBC’s “Morning Joe” on Wednesday morning that Democrats are urging the president to make a decision “because time is running short.” (Biden has insisted that he has already made that decision and that he is running.)
The group of front-line Democrats met several times this week, including Wednesday morning, to discuss the party’s fraying support for Biden, according to three lawmakers who were in the room. Part of the discussion centered on the importance of quickly establishing whether Biden is in or out — to avoid the chaos of an open convention but also to prevent Republicans from challenging the eventual nominee on state ballots.
“What happens when the GOP starts suing to keep people off the ballot?” one of the three representatives said, speaking on the condition of anonymity to be candid. “You know they will do that.”
Months before the president’s disastrous debate performance, which set off a frenzy within the Democratic Party over whether he should step aside, the Heritage Foundation laid out in a memo how it would legally challenge Democrats in several key swing states if they tried to replace Biden on the ballot.
Mike Howell, executive director of the conservative think tank’s Oversight Project, wrote in an April 2 memo that if Democrats tried to replace Biden, “there is the potential for pre-election litigation in some states that would make the process difficult and perhaps unsuccessful.”
Election experts say it’s a nonissue right now because there is no official nominee to replace until delegates vote for one.
“Heritage’s threatened litigation would be frivolous if a ticket is nominated at the convention,” said Adav Noti, executive director of the Campaign Legal Center, a government watchdog group.
If the ticket is nominated or changed after the convention, Noti said, the legal situation “would depend on the date of the nomination and on the state[s] at issue, since each state has its own post-convention nomination deadline and procedures for modification.”
Howell noted in the memo that in some states, there are no specific laws about how to deal with a presidential candidate’s withdrawal, writing that “this confusion may be its own source of litigation.”
Heritage points to a statute in Wisconsin law that a nominee can be replaced on ballots only if they die. Jeffrey Mandell, an election lawyer who has worked for Democrats in Wisconsin, said Biden would be difficult to remove from the ballot once he’s nominated, in part because of a short time frame. Ballots will be printed in September and, under state law, must start to be mailed to overseas voters starting Sept. 19.
Mandell said it’s hard to predict how the Wisconsin Supreme Court would react if Biden withdrew from the race after becoming the nominee.
“If either candidate has some kind of debilitating but not fatal incident, I think we can expect that the Wisconsin Supreme Court would be fairly flexible,” he said. If the switch were made for political reasons, however, Mandell said: “That’s a lot more complicated.”
Heritage said that in Nevada, the party nominee must be set by June — but it may take a judge to resolve the question. The office of the Nevada Secretary of State Cisco Aguilar (D) published an administrative rule last year setting the deadline in September.
Heritage also cited Georgia as a battleground where the organization hopes to thwart an effort to replace Biden. The office of the Georgia secretary of state, however, said Heritage’s argument misapplies state law. There is no legal ballot deadline because it’s the purview of the national parties, not the state, to select their nominees. There is a practical deadline, however, as there is in every state, which is the date by which the ballots have to start being printed.
Election experts say that even if there is no legal path to keeping a Democratic nominee other than Biden off the ticket, conservatives are likely to pursue them anyway to sow confusion.
“Heritage understands that there is little legal ground for lawsuits on ballot access prior to the nomination,” said Craig Holman, a government affairs lobbyist at Public Citizen, a good-government advocacy group, “but no doubt will file lawsuits anyway in an effort to entangle the democratic process and harass whoever may be the Democratic Party nominee.”
