No, State Laws Haven’t Locked Biden Onto the Ballot

Democratic insiders don’t generally find common ground with MAGA diehards, but such is the state of politics in 2024. In the days since Joe Biden’s dismal debate performance, some of his staunchest supporters have suggested that it’s too late for the Democratic Party to nominate a new candidate. Joining them in that argument is an unlikely partner: the Heritage Foundation, a conservative think tank stocked with former Trump-administration officials. Heritage has argued that replacing Biden on the ballot might violate the election laws of several states. The idea, which has been picked up by news outlets, political scientists, and Democratic megadonors, is not true. State laws haven’t locked Biden onto any ballots. In a few weeks, however, the Democratic Party’s own rules just might.

On June 21, Heritage’s Oversight Project posted an “EMERGENCY DRAFT MEMO” to X outlining how it might block any attempt to put a new candidate on top of the Democratic ticket if Biden were to drop out. A few states, the memo argued, including Wisconsin, don’t allow presidential candidates to withdraw from the race other than in cases of death or incapacitation. “Arguing for strict application” of such statutes “would likely bear some fruit,” it concluded. In an interview, Mike Howell, the Oversight Project’s executive director, told me that, because Biden has publicly described himself as the nominee, courts might hold that the laws apply to him.

When I ran Howell’s theory by election-law experts, they could not have dismissed it more emphatically. Biden isn’t the nominee until the Democratic National Committee officially nominates him, regardless of what he says, Rick Hasen, a law professor at UCLA, told me. Derek Muller, an election-law professor at the University of Notre Dame, said that a lawsuit based on Howell’s theory “would not go to discovery. It would get dismissed, and it might subject the lawyers to sanctions. I mean, that’s how frivolous I think a lawsuit would be.” Other election-law professors I spoke with called Heritage’s claims “an issue that doesn’t exist” and “nonsensical and completely inaccurate.” All agreed that there is no legal barrier to replacing Biden if he drops out of the race before the DNC officially nominates him.

But that window could shut sooner than most people realize. Typically, each party officially nominates its candidate at the end of its national convention, which in the Democrats’ case will run from August 19 to 22. This year, however, the DNC plans to nominate Biden via a virtual roll call before the convention. It made that decision in response to an Ohio law that would have prevented Biden from appearing on the ballot if his nomination came later than August 7. Ohio has since pushed back its deadline until after the conventions, but the DNC has said that it’s sticking with its plan to nominate Biden before August 7, and possibly as early as July 21—ostensibly because the Ohio legislature could still reverse its reversal. The DNC will settle on an exact date on July 19.

Of course, if Biden were to drop out before then, the party would be forced to adjust its plans. But if he stays in the race for the next few weeks and gets the early nomination, making any changes could get seriously difficult. Once the party communicates its formal nomination to the states, laws governing the replacement of candidates will kick in—including those laws, like Wisconsin’s, that appear to prohibit candidates from dropping out for strategic reasons.

According to Edward B. Foley, the director of the election-law program at Ohio State University, the Democratic Party could still swap in a new nominee up until each state’s ballot-access deadline, many of which are in late August or early September. But each state’s procedures are different, and any change would likely go to court, raising the possibility, however remote, that Biden will be on the ballot despite the party attempting to nominate someone else.

So although Democrats aren’t yet stuck with Biden, under the DNC’s current rules, the window for him to smoothly step aside is less than a month and could, in theory, be as short as 10 days. Biden’s biggest supporters—and biggest critics—are hoping he can hang on past that point.

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