Legal challenges to Biden dropping out would face tough odds

President Biden’s decision to drop out of the 2024 race could draw legal challenges in some states as a groundswell of Democrats begin lining up behind Vice President Harris, though legal experts say such challenges will likely prove unfruitful.

“Before the media gets rolling, let me be clear: The Democratic nominee for president will be on all 50 state ballots,” Democratic election lawyer Marc Elias wrote on the social platform X soon after Biden’s announcement. “There is no basis for any legal challenge. Period.”

Biden said Sunday that he is dropping his reelection bid after weeks of mounting pressures from his own party who questioned his fitness for office. A short while after he made his stunning announcement while in isolation in Rehoboth Beach, Del. for COVID-19, he endorsed his vice president as his successor, and other prominent Democrats soon followed.

However, with less than a month to go before the Democratic National Convention, top Republicans warned that a late-stage swap could raise legal issues in some states where Biden was selected as the nominee by primary voters.

“Every state has its own system, and in some of these, it’s not possible to simply just switch out a candidate,” House Speaker Mike Johnson (R-La.) said Sunday on ABC News’s “This Week,” just before Biden bowed out.

Johnson’s comments echo a June memo by the Heritage Foundation contending that taking Biden off the ballot could effectuate “pre-election litigation” in various states that might make the switch “difficult and perhaps unsuccessful.”

The memo points to laws in states like Wisconsin and South Carolina, which say that party nominees may not be removed for political reasons or reasons other than death. It also examines state laws in Georgia, Nevada and Texas with specific caveats for replacing presidential nominees. 

Derek Muller, a professor at Notre Dame Law School, said that any such challenge would fail because no Democratic presidential candidate has been formally nominated by the party yet. The Heritage memo itself concedes it “does not address the procedures for presidential elector elections,” he noted.

“That nomination process at the convention is really the key to unlocking ballot access across the United States,” Muller said. 

Though voters expect delegates to select their chosen candidate, those delegates aren’t bound to do so. More than 3,800 delegates were pledged to Biden, but Democratic National Committee rules don’t specifically require them to vote for him — meaning, there’s nothing stopping those delegates from now casting their votes for Harris. 

Some state officials are already attempting to tamp down concerns that Biden’s departure from the Democratic ticket could cause chaos across state ballots. Gabriel Sterling, chief operating officer of the Georgia Secretary of State’s office, said Monday on X that Biden dropping out would “not impact Georgia ballots” because there is “no ‘nominee’ to replace.”

If Republicans wanted to sue over the switch, they would likely have to wait until after the Democratic Party makes its formal nomination at the convention — and would face greater odds of success if focused on the timing of choosing an official nominee, not the actual selection. 

Should Harris struggle to earn the nomination, it could run up on state deadlines to put a candidate on the ballot. Democrats already planned to hold a virtual roll call vote Aug. 1 ahead of the convention to circumvent potential issues with Ohio’s deadline and could run into similar issues in states such as Washington should they wait until their actual convention, University of California, Los Angeles law professor Rick Hasen wrote in a blog post.

“Democrats would be smart to still do that virtual roll call by August 7 if they’ve coalesced around Vice President Kamala Harris or another candidate,” Hasen wrote. “That would avoid even the small risk of a serious lawsuit.”

The GOP might have faced a similar scenario at its own convention if the attempted assassination of former President Trump at a campaign rally earlier this month — where a bullet grazed his ear but left him otherwise unharmed — had been successful, Muller said. Trump accepted the Republican nomination Thursday.

“Had that bullet last week traveled a quarter-inch in a different direction, Republicans would be in the same boat,” Muller said. 

The question of whether Harris can dip into Biden’s campaign coffers while mounting her own bid for the White House faces greater odds of litigation.

Sean Cooksey, the Trump-appointed chair of the Federal Election Commission (FEC), suggested Monday that Harris might not be able to access the nearly $100 million in Biden’s campaign account. Biden’s campaign filed paperwork to change its name from “Biden for President” to “Harris for President” within hours of the president’s decision to drop out.

But campaign finance lawyers have pointed to the fact that the campaign registered itself as the “principal campaign committee” for both Biden and Harris when filing its registration statement with the agency as reason that those funds are rightfully hers, too.

Dara Lindenbaum, one of the six FEC commissioners, co-signed that argument Sunday, writing on X that if Harris becomes the Democratic Party’s nominee, “she gets access” to Biden’s funds.

“My guess is there might be some questions or legal wrangling about that,” Muller said, “but I would assume we won't have answers until well after the election.”