Fact-check: Is replacing Joe Biden on the ticket ‘unlawful’? Election law experts say it’s not

Louis Jacobson and Amy Sherman
Updated ·10 min read
1
Vice President Kamala Harris is now expected to become the Democratic presidential nominee now that President Joe Biden has dropped his reelection bid.
Vice President Kamala Harris is now expected to become the Democratic presidential nominee now that President Joe Biden has dropped his reelection bid.
  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.

Even before President Joe Biden announced that he would relinquish his presumptive 2024 presidential nomination and endorsed Vice President Kamala Harris for the role, Republicans were laying the groundwork to argue that it is too late for Democrats to replace their candidate.

On CNN’s "State of the Union" July 21 — just hours before Biden posted a letter to social media saying he would drop out — House Speaker Mike Johnson, R-La., said the Democrats would have a "real hurdle" if they wanted to switch candidates.

After 14 million people chose Biden during the primary, Johnson said, "It will be very interesting to see if the so-called party of democracy, the Democrats, go into a backroom somewhere and switch it out and put someone else at the top of the ticket."

Johnson promised that the "legal hurdles in some of these states" would "be litigated."

Johnson went even further on ABC News’ "This Week" the same day, saying he thought it would be "unlawful" to replace Biden on the ticket should he drop out.

"It would be wrong and I think unlawful in accordance to some of these state rules" to replace Biden, Johnson said.

President Donald Trump’s supporters and some influencers took to social media to make a similar argument. They said Democrats had "subverted democracy" or that it is a sign Democrats will "cheat" or are cheating. Stephen Miller, a former White House aide under Trump, posted on X that "Democrats just canceled democracy. They threw out an entire primary and used donor extortion to do so. Like a third world state."

Is the Democrats’ Biden switch-out unlawful? Experts say no — and that it’s well supported by legal precedent.

Although Republicans are free to file legal challenges — and it’s impossible to predict exactly how courts might rule on such challenges — election law experts agreed that legal precedent sides with Democrats.

"There is no legal problem here whatsoever," Michael Gerhardt, University of North Carolina constitutional law professor, told PolitiFact. "The timing does not present any legal or constitutional problems. The Democratic nominee has not become official yet, ballot deadlines in states have not been violated in any way, and the rules of the convention are fully intact and in force."

Johnson’s office told PolitiFact that there could be potential legal challenges, including in Ohio and Michigan. His office said that some states have rules that could require delegates to vote for their affiliated candidate. Legal experts told us that those states include Arizona and Illinois.

But even if that’s the case, it’s unclear that would prevent the Democrats from approving the nominee of their choice at the convention, experts said.

Biden was not yet the official nominee

Multiple election law experts told PolitiFact that Democrats are legally secure in switching out Biden between now and the convention period, which runs from Aug. 19-22 in Chicago.

A key reason the Democrats’ actions are not "unlawful" is that Biden is not yet officially the nominee and isn’t on any ballots.

Typically, state rules say that after a political convention or another process, the party will transmit the name of its presidential nominee by a certain date so that states can print the name on ballots.

When Biden dropped out, he was only the presumptive nominee — not the official nominee. That means he had more than enough pledged delegates to win the convention’s first ballot.

The nomination will officially be voted on either shortly before or during the convention. Unless a major Democratic figure mounts a serious challenge — which did not appear likely to happen — the president’s endorsement of Harris will likely carry the day with delegates.

"The Democrats do not need to (switch the name on the ballot) because Biden was not the Democratic nominee," said Rebecca Green, a College of William & Mary law professor. "Since the Democratic National Convention has not yet happened, there is no legal basis for challenge. The process for selecting the Democratic nominee will now follow party rules in place."

Ohio State University law professor Edward Foley argued against claims that the Democrats’ procedure is undemocratic.

During the primaries, voters expressed their preferences for delegates who, although they were stated supporters of a given candidate, have some leeway under party rules on how to vote when nomination ballots are counted. Under party rules, delegates can decide not to back the candidate they represent if "in all good conscience" they feel they cannot support them.

"These primary votes don’t choose the party’s nominee directly," Foley said. "Both parties have rules for what happens if a candidate withdraws from the race before the nominating convention, no matter what happens."

State laws a consideration

A related issue for Democrats is making sure the new nominee’s name is passed to states in a timely manner.

Even before Biden dropped out, Democrats had been planning a potential early roll call to formally nominate a candidate before the convention, given concern that an Ohio law could have blocked a nomination formalized that late. The Ohio law was later changed.

The conservative Heritage Foundation published a draft memo in June showing that if Biden dropped out, they were eyeing legal challenges in some states they believed posed obstacles to replacing Biden. Wisconsin, Georgia and Nevada were included in the memo.

But PolitiFact Wisconsin found that Wisconsin’s deadline to replace Biden on the ballot has not passed. In Georgia, Gabriel Sterling, a state elections official, posted on X that "Biden dropping out will not impact Georgia ballots. As the Democrats haven’t had a convention, there is no "nominee" to replace." A spokesperson for the Nevada Secretary of State said that parties have until Sept. 3 to provide the names of their nominees for president and vice president.

Deadlines for the presidential candidates’ names on the ballots vary by state, but they generally fall in late August or early September.

There might be more legal exposure for Democrats on the question of how state law treats a delegate’s voting responsibilities. But experts said even on this question, there should be limited impact.

Laws in some states, such as Arizona and Illinois, require delegates to vote for the candidate they supported in the primary, at least on the first ballot, said Josh Putnam, a political scientist specializing in delegate selection rules and founder of the political consulting company FHQ Strategies LLC. However, Putnam added that these laws have never been tested in court, and most states with these laws "also contain provisions allowing for the inevitable release of delegates in those situations where a candidate drops out, as Biden has."

Meanwhile, Richard Hasen, election law expert at UCLA, wrote that a handful of other states, such as Washington state, have laws governing an election administrator’s power to extend a presidential election deadline. These laws could attract lawsuits if Democratic actions are seen to violate them.

Ultimately, though, "a nomination is party business and the courts have tended to side with the parties on First Amendment freedom of association grounds," Putnam told PolitiFact. "In other words, both the release by Biden, and the existence of the ‘good conscience’ clause within party rules, would take precedence over any state law."

What could the Supreme Court do?

The 1981 U.S. Supreme Court decision in Democratic Party v. Wisconsin, set a legal precedent for situations like this, Green said. The 6-3 majority held that state election law cannot preempt the delegate selection mechanisms of a national political party for that party's national convention.

But what if the current Supreme Court disagrees that legal jurisprudence allows Democrats to shift Biden off the ticket?

Although experts told PolitiFact that they see no obvious argument in case law that the Democratic Party is prohibited from switching out Biden, some declined to rule out the possibility that the Supreme Court — if it gets such a case — could create justification on its own.

Before oral arguments over whether a president has legal immunity, a case brought by Trump, legal experts all but dismissed the idea that the justices would greenlight broad-scale presidential immunity, given the lack of past rulings justifying it. But when the ruling came down July 2, a 6-3 majority sided with Trump and created new frontiers for presidential immunity.

Brian Kalt, a Michigan State University law professor, said he couldn’t imagine the Supreme Court would bar Democrats from replacing Biden as their presidential nominee. "But who can say?" he added. "The Supreme Court has a habit of exceeding the bounds of my imagination."

PolitiFact Staff Writer Ranjan Jindal contributed to this report.

Our sources

This article originally appeared on Austin American-Statesman: PolitiFact: Why experts say it’s legal for Democrats to replace Biden