If Biden were to withdraw now, before he officially becomes the party’s nominee, legal experts say it would be relatively easy to replace him, but if he were to withdraw after the nomination was formally announced, the process would be much more complicated and legally murky.
Time is limited: Biden is scheduled to be crowned the nominee via a virtual roll call of party delegates on Aug. 5, two weeks before Democrats gather in Chicago for their convention on Aug. 19.
Democrats, who have called on the president to step aside, want a quick resolution to avoid a procedural quagmire, while Biden’s supporters want the internal debate to be concluded quickly so the party can back him without leaving any ambiguity about where he stands.
There the agreement on the need for expediency ends.
“We have deep concerns, but we don’t agree on what to do,” said Rep. David Cole, a Democrat running for re-election in one of 29 House seats the Democratic Congressional Campaign Committee has identified as the most contested this year.
Experts said Republicans could challenge Biden’s replacement in court, but if Biden drops out before the convention and delegates vote for someone else as the Democratic presidential nominee, any challenge to putting that person on the ballot would likely be quickly dismissed, experts said. If Biden drops out after becoming the Democratic nominee, the legal situation becomes less clear.
The Heritage Foundation has cited three key battleground states — Wisconsin, Georgia and Nevada — as potential Republican challenges to Biden’s replacement that could spark legal battles. Some legal experts say the strength of their case will depend on the timing and circumstances of Biden’s departure from office. Others say there is no basis for outside groups to intervene because selecting the presidential nominee is the responsibility of national political parties.
The pressure of state voting deadlines and the possibility of legal lawsuits have added another troubling element to an already tense political environment, with Democrats divided over who they should support to face off against former President Donald Trump in November’s election.
Ballot deadlines are usually a somewhat murky area of ​​election law that barely affects the most important party decisions, but now they matter, and Democratic lawmakers have expressed confusion about how state-by-state voting deadlines might affect a scenario in which Biden flips.
Rep. Andy Kim (N.J.), a candidate for the U.S. Senate, told reporters at the Capitol on Tuesday that Democrats were trying to figure out “what the actual deadlines are,” saying, “It’s hard to make a decision without fully understanding that.”
Former House Speaker Nancy Pelosi (D-Calif.) appeared on MSNBC and said, “Morning Joe” reported Wednesday morning that Democrats are urging the president to make a decision “because time is running out.” (Biden has already made his decision and insists he will run.)
Top Democrats met several times this week, including Wednesday morning, to discuss the party’s waning support for Biden, three people who were there said. Part of the discussion focused on the importance of quickly determining whether Biden will stay in the race, but also to avoid the chaos that would come with a public convention, as well as to prevent Republicans from challenging the eventual nominee on state ballots.
“What if Republicans file lawsuits to keep people from voting?” said one of the three lawmakers, speaking on condition of anonymity. Frankly, “You know they will.”
Months before his disastrous debate performances and sparked fierce debate within Democrats about whether he should step down, the Heritage Foundation wrote a memo outlining how it would legally fight back against Democrats trying to remove Biden from their running in several key battleground states.
Mike Howell, executive director of the conservative think tank A president of the Oversight Project wrote in an April 2 memo that if Democrats tried to replace Biden, “it would likely result in pre-election litigation in some states, making the process difficult and likely unsuccessful.”
Election experts say it doesn’t matter right now because there are no official candidates until delegates vote.
“If a candidate is nominated at the convention, Heritage’s threats of a lawsuit will be rendered moot,” said Adab Noti, executive director of the Campaign Legal Center, a government watchdog group.
Noti said if tickets are nominated or changed after the tournament, the legal situation is “It will depend on the date of nomination and the state.[s] This is problematic because each state has its own post-convention nominating deadlines and amendment procedures.”
In his memo, Howell noted that some states don’t have specific laws on how to handle presidential candidate withdrawals, “which confusion itself could give rise to litigation.”
Heritage noted that Wisconsin law states a candidate can only be replaced from the ballot if the candidate dies. Jeffrey Mandel, an election lawyer who has worked for Democrats in Wisconsin, said it would be difficult to remove Biden from the ballot once he is nominated, given the short deadline. Ballots are printed in September and state law requires them to be mailed to overseas voters starting September 19.
Mandel said it’s hard to predict how the Wisconsin Supreme Court would react if Biden were to withdraw from the election after becoming the nominee.
“If either nominee is involved in some kind of debilitating, but not fatal, incident, I think we can expect the Wisconsin Supreme Court to be pretty flexible,” Mandel said. But if the switch is for political reasons, “it’s a lot more complicated,” he said.
Heritage said a judge may need to rule on the issue in Nevada, where party nominees must be decided by June. Nevada Secretary of State Cisco Aguilar’s office issued administrative rules last year setting the deadline in September.
Heritage also named Georgia as a battleground state where the organization hopes to thwart efforts to replace Biden. But the Georgia Secretary of State’s office said Heritage’s claims are a misapplication of state law. There is no legal deadline for ballots to be cast, since it is up to national parties, not states, to choose their candidates. But as with any state, there is a practical deadline by which ballots must begin printing.
Election experts say even if there was no legal way to remove other Democratic candidates from the ballot box, conservatives would likely pursue it anyway in an attempt to sow chaos.
“Heritage understands that it has little legal basis for a lawsuit over pre-nomination ballot access,” said Craig Holman, a government affairs lobbyist for the good government advocacy group Public Citizen. “But you can bet there will be lawsuits filed to disrupt the democratic process and embarrass whoever the Democratic nominee is.”
