With news of President Joe Biden’s withdrawal from the presidential race, some Republicans are claiming he cannot be removed from the presidential ballot in November and that in any case it is undemocratic to do so. The first claim is legally unsupported and the second one is ludicrous. I fully expect the Democrats’ legitimate nominees for president and vice president to be listed on the ballot in November.
Let’s start with the legal issue. The premise of the argument that Biden cannot be “removed” from the ballot is that he’s already “on” the ballot for president. He’s not.
When it comes to which candidates are listed on the general election ballot for president, states set their own rules. Typically, the rules provide that after each recognized political party has had its convention or otherwise gone through its process of choosing a nominee, the party must transmit that information to the states by a certain date so that ballots and other election materials can be prepared.
Joe Biden has not yet been nominated to be president even though he had racked up enough delegates at the upcoming Democratic National Convention to have had an easy time getting the official nomination had he stayed in the race. He was only the presumptive nominee, not the official nominee—nobody is, until there’s a vote. So Biden need not be replaced, because he was never the official candidate.
To the extent that there’s even the hint of a legal issue, it’s not over whether it’s Biden or someone else who is the Democrats’ nominee, but about the timing of choosing the official nominee. The key is that nomination happens in time to get the candidate on the ballot in each state. For instance, Ohio originally had a ballot deadline that was before the Democratic National Convention, leading to a risk that no Democratic nominee would be listed on the ballot in that state. Ohio changed its law to a later deadline to accommodate the late convention. As I explained at Election Law Blog, there’s a hypertechnical argument that Ohio could still contend that a nomination coming from Democrats after their convention would be too late. This was the purported reason Democrats were going to do an early virtual roll-call vote to choose Biden. (I think the real reason for an early roll call was for partisans to lock Biden in, not to avoid litigation.)
Any litigation to keep Biden off the Ohio ballot would be extremely unlikely to succeed because Ohio has committed to the later date and transmitted that later date to local election officials. Everyone is relying on that and so Ohio would not be able to just change its mind, any more than any other Republican state could try to retroactively change the ballot access rules. Further, courts generally hold that states can’t make it too hard for serious candidates to get a place on the ballot, and that rule would easily apply to the eventual Democratic Party nominee.
In a handful of other states, including Washington state, there is a different ballot access timing issue that could trigger a lawsuit. (The issue is even more technical and has to do with an election administrator’s power to extend a legislative deadline in a presidential election.) For this reason, Democrats would be smart to still do that virtual roll call by Aug. 7 if they’ve coalesced around Vice President Kamala Harris or another candidate. That would avoid even the small risk of a serious lawsuit.
But even if the DNC holds an open convention and the nomination comes during the convention, I am confident that the Democrats’ nominee will be on the ballot in all 50 states, either because legislatures will change the rules to grant ballot access to the Democrats’ nominee or courts will require it.
And then this brings us to the complaints that there’s something antidemocratic about this whole process, that it is somehow overturning the will of the Biden voters in choosing a new nominee. This is a crazy complaint. Until the 1960s, it was not uncommon for party nominees to be chosen by party insiders. We even have the clichéd “smoke-filled room” where this used to happen. The undemocratic nature of that process led to the party reform we have today where most delegates are chosen by the people and vote at the convention.
If Biden wanted to remain in the race and delegates who were chosen for Biden in the primary process decided to vote for someone else, there would be something to this small-d democracy argument; voters wanted Biden and the delegates didn’t listen.
But Biden has withdrawn. He’s voluntarily decided he can’t go forward. The party has democratic procedures in place for such an eventuality, just as if a candidate dies before being nominated. The whole point of doing a convention is to have a safety valve for something like this. (And I always fear what would happen if a candidate dies after nomination and listing on the ballot, when things could get very dicey.)
Democrats coming together with a fair vote and choosing another nominee after the leading candidate has withdrawn is an example of the process working, not failing.
If it’s Harris, the democracy argument against choosing someone other than Biden is even weaker, given that Harris is already on the ticket and got voter support in the primaries—with many voters knowing that if something had happened to Biden, Harris was to be the replacement.
The Republican complaints about the Democrats’ replacement of Biden serve two real purposes. First, prior to Sunday, they were bluster to try to deter Democrats from replacing Biden out of fear of having to run against a candidate potentially stronger than him. Second, they are a chance to cast aspersions on the legitimacy of the election and of Democrats themselves. No one should take these complaints seriously.
It takes a special kind of chutzpah for Trump supporters to say it’s a “coup” when Democrats conduct a fair and democratic process for replacing a withdrawn candidate. Trumpists could learn a lot about the democratic process in watching what’s happening on the other side of the aisle.