Party leaders have warned that Biden risks becoming embroiled in a legal quagmire if he is not formally nominated by the party’s convention in Chicago, which begins on Aug. 19. A Democratic National Committee official said the looming deadline for voting in several states could provide an opportunity for Republican groups to file court challenges against any candidate who is not formally nominated by then.
But officials in several of those states said in emailed statements that procedures were in place to ensure Biden, or another Democratic candidate, would appear on the ballot even if the deadline passed before the nomination was official, and some experts said the idea that a Democratic candidate would not appear on the ballot was far-fetched.
“If there is a challenge, the court will likely side with giving the major candidates the right to vote,” said Rick Hazen, an election law professor at the University of California, Los Angeles. “It’s not realistic that that’s going to happen.”
The DNC’s decision to publicly raise legal doubts comes as Democrats who want Biden out of office are growing wary that party leaders may try to push for Biden’s nomination even sooner. Rep. Jared Huffman of California had been circulating a draft letter among Democrats opposing a rushed vote. He abandoned those efforts Wednesday after the DNC confirmed that voting won’t begin until at least Aug. 1.
Democrats and Republicans traditionally formally decide on their nominees at their conventions, even if they have already been selected months before through the primary and caucus process, so a virtual roll call before the conventions would be unprecedented for the major parties.
Democrats in May moved up their nomination plans to meet Ohio’s Aug. 7 voting deadline. The Ohio State Legislature then passed a law temporarily moving the deadline to early September to ensure Biden would appear on the ballot. But the Democratic National Committee decided to still hold a virtual roll call, saying it didn’t trust Ohio Republican leaders to stick to the new schedule.
The co-chairs of the committee that oversees the Democratic National Convention rules suggested in a letter Wednesday that the situation in Ohio could lead to “litigation regarding the validity of filings.”
“We believe that a virtual element is the most prudent approach to ensure access to the ballot in states we need to win in November and avoid potential risks if the process is delayed,” the letter said.
They also point out that five states – Oklahoma, Washington, California, Virginia and Montana – have voting deadlines in mid- to late August, and argue that it would be difficult to meet those deadlines if the party waited until its convention on August 19 to nominate its candidate.
Mid-August is a typical time for nominating conventions, and no major party candidate has ever been removed from the ballot for missing the deadline, although states often have backup plans in case they miss the deadline.
Oklahoma’s deadline is Aug. 21, right in the middle of its caucus, while Virginia’s is just after on Aug. 23. But both states have laws that allow flexibility regarding the deadline.
In other states, such as Washington, election officials also allow parties to submit provisional candidates if they are unable to meet a state’s ballot deadline, though this is not required by law.
“The Secretary of State’s Office is committed to ensuring that Washington state voters have the same opportunity to have a say in the presidential election as voters in other U.S. states,” said Derrick Nunnally, a spokesman for the Secretary of State’s office.
Nunnally said the issue came up in 2020 and his office contacted Democrats and Republicans, directing them to file a tentative certification.
“Because of the Democrats’ schedule, we may have an opportunity to do that this year,” Nunnally said.
A spokesman for the California Secretary of State’s office said it was unclear what would happen if a party did not submit its nomination papers by the deadline, but that the office was investigating.
Hasen said that if Republicans file a lawsuit in California to block Biden’s candidacy, the state’s Democratic-controlled Legislature would likely pass a law allowing access.
Derek Mueller, an election law professor at the University of Notre Dame, said Democrats could face lawsuits in states such as Washington, where accepting provisional nominations is not required by law but is a decision made by the secretary of state.
“I think in the past it was just a matter of custom and habit, but obviously in election times we see more litigation and people wanting to challenge deadlines,” Mueller said.
Concerns about Republican litigation related to ballot access stem from a memo circulated in early April by the right-leaning Heritage Foundation, which outlined plans to file lawsuits in certain battleground states if Democrats replace Biden as the top candidate.
Election experts say Republicans would have no room for lawsuits if Biden withdraws before he is officially the nominee. But the Democratic National Committee and Biden campaign staff have warned lawmakers that Republicans will sue if Democrats nominate a new candidate, according to a House Democratic aide and six House lawmakers. Biden aides have argued that Democrats’ failure to put their own candidate on the ballot in certain states could create confusion and uncertainty that could jeopardize the electoral votes, they said.
The Biden campaign has denied having discussions with lawmakers about ballot access. “This is categorically false and the campaign is not promoting this discussion,” a campaign spokesman said. The Democratic National Committee declined to comment beyond the letter party leaders issued Wednesday.
The issue has been widely debated among Democrats in Congress, and some of Biden’s allies, particularly in the Congressional Black Caucus and the Progressive Caucus, have used the possibility of litigation as an argument for supporting Biden.
Some DNC members had suggested holding a virtual roll call in late July, but House Minority Leader Hakeem Jeffries of New York and Senate Majority Leader Charles E. Schumer of New York urged the DNC to stick with its original plan to approve the nominees in early August.
Huffman, who has opposed rushing a roll call vote, said in an interview that party leaders had assured him that keeping the election date in August would give Democrats time to consider the nomination process and decide whether to continue holding Biden as the front-runner. The California congressman said he wants the nominations to happen at a caucus and is skeptical about whether an early virtual roll call is necessary.
“I’d like to hear from their lawyers whether this is what the DNC is saying, or if this is a facade to silence any debate about Biden,” Huffman said.
Pressure continues to mount on Biden following his poor debate performance, with Rep. Adam Schiff, a Democrat running for Senate in California, becoming the latest lawmaker to call for Biden to resign on Wednesday. Rep. Lloyd Doggett of Texas, the first House Democrat to publicly call on Biden to drop out of the race, said Wednesday that the Democratic National Convention should forgo virtual roll calls altogether and nominate the presidential nominee at a traditional in-person convention in Chicago.
“Expediting the nomination process is not the way to convince large numbers of unconvinced voters in a growing number of battleground states,” Doggett said in a statement.
Biden’s campaign expressed frustration at the focus on the virtual roll call during a press conference in Milwaukee.
“Republicans are lying to the American people about almost every issue that affects their lives,” said Quentin Fulks, Biden’s chief deputy campaign manager, “and we’re obsessed with the election process.”
The overwhelming majority of delegates attending the Chicago convention have pledged to support Biden after the president’s landslide primary victory but are not legally bound to do so. In interviews, several delegates said they had not been informed of the date for the virtual roll call and would get updates from the media.
One donor and delegate, who spoke on the condition of anonymity to be candid, said he got a call last week from a Biden campaign aide saying the roll call would take place at the end of July. Delegates who want the president out are upset that the roll call might be brought forward and believe the nominations should take place at a party convention. A virtual roll call is “a bad idea and a surefire way to lose the election,” he said.
Maeve Reston, Paul Kane and Marianna Sotomayor contributed to this report.
