Election law experts say House Speaker Mike Johnson is wrong when he says it is “unlawful” for Democrats to “simply just switch out a candidate who has been chosen through the … democratic process.”
Although President Joe Biden was chosen by the vast majority of primary and caucus voters, and amassed more than 99% of the pledged delegates who will meet at the Democratic National Convention in mid-August, he has not been formally nominated. And since he has voluntarily dropped out of the race, delegates pledged to him are no longer obligated to vote for him and can vote for someone else, experts told us.
The Associated Press reported that a survey of delegates found Vice President Kamala Harris is already closing in on the number of delegates she needs to win the nomination.
On July 21, Biden announced via X, “I believe it is in the best interest of my party and the country for me to stand down and to focus solely on fulfilling my duties as President for the remainder of my term.” In a message to Democrats a half hour later, Biden said, “I have decided not to accept the nomination,” and he offered his “full support and endorsement for Kamala to be the nominee of our party this year.”
The same day Biden made his announcement, Democratic National Committee Chair Jaime Harrison released a statement saying, “In the coming days, the Party will undertake a transparent and orderly process to move forward as a united Democratic Party with a candidate who can defeat Donald Trump in November. This process will be governed by established rules and procedures of the Party. Our delegates are prepared to take seriously their responsibility in swiftly delivering a candidate to the American people.”
Prominent Democrats have quickly coalesced around Harris as the nominee — including some who may have harbored their own presidential aspirations, such as California Gov. Gavin Newsom, Pennsylvania Gov. Josh Shapiro, Michigan Gov. Gretchen Whitmer and Kentucky Gov. Andy Beshear.
On two political talk shows hours before Biden made his announcement, Johnson raised the issue of the legality of “switching” the Democratic nominee to someone other than Biden, and suggested Republicans would file legal challenges if the DNC attempted such a thing.
Johnson, ABC News’ “This Week,” July 21: Well, these elections are handled at the state level. Every state has its own system and in some of these, it’s not possible to simply just switch out a candidate who has been chosen through the democratic, small D, democratic process over such a long period of time.
Fourteen million Democrats voted to make Joe Biden the nominee. So, it would be wrong and I think unlawful in accordance to some of these state rules for a handful of people to go in the back room and switch it out because they’re — they don’t like the candidate any longer. That’s not how this is supposed to work. So, I think they would run into some legal impediments in at least a few of these jurisdictions and I think there’ll be a compelling case to be made that that shouldn’t happen, and so I think they got legal trouble if that’s their — if that’s their intention and that’s their plan. So, we’ll how it plays out. We don’t know.
Johnson, CNN’s “State of the Union,” July 21: Look, I’m a former litigator, a constitutional law attorney. I just made note in some comments over the last week that they have real problems. I mean, every state has their own election system. That’s our constitutional system. That’s the way it’s done. And in some of these states, it’s a real hurdle. They have a real problem of replacing the nominee at the top of the ticket.
Remember, [host] Jake [Tapper], I mean, Joe Biden was chosen after a long small-D democratic process by 14 million people emerging through that primary. It will be very interesting to see if the so-called party of democracy, the Democrats, go into a back room somewhere and switch it out and put someone else at the top of the ticket. I mean, I think they have got legal hurdles in some of these states, and it’ll be litigated, I would expect, on the ground there and they will have to sort through that. They have got a real problem.
Election law experts said Johnson is incorrect.
“First of all, the Democratic Party is not ‘replacing or switch[ing] out’ its nominee,” Edward B. Foley, the director of the election law program at Ohio State University, told us via email. “Biden was never the official nominee, only the presumptive nominee. The nominee is chosen by the delegates to the convention, either at the convention or in a virtual roll call beforehand, neither of which has occurred yet.
“Moreover, political parties have the constitutional right to determine the procedure by which they select their nominees, as repeatedly confirmed by the Supreme Court,” Foley said, citing the Supreme Court cases Democratic Party of United States v. Wisconsin ex rel. La Follette and California Democratic Party v. Jones.
“The authority of the national parties to choose their nominee in the event the nominee can’t run comes as a surprise to many in this day of wall-to-wall primaries,” Elaine Kamarck, author of “Primary Politics: Everything You Need to Know about How America Nominates Its Presidential Candidates,” wrote in September. “And yet, it is a reminder that the choice of a nominee is party business — not state law, not federal law, and not constitutional law.”
Foley said there “would be no basis whatsoever for Republicans (or anyone else) to challenge the Democratic Party’s decision to follow its own rules in nominating someone other than Biden.”
According to the Democratic Party’s rules, Foley said, “the presidential preference primaries determined who the convention delegates are; the primary voters did not directly choose the party’s nominee. Biden’s now having voluntarily withdrawn from the race before the delegates nominated him based on his status as presumptive nominee as a result of the primaries, the delegates are free pursuant to the party’s own rules to choose a different person as their nominee. There has been no disenfranchisement of primary voters as a part of the process of the party following its own nomination rules.”
Joshua Douglas, a professor at the University of Kentucky’s J. David Rosenberg College of Law, echoed that point via an email to us, saying, “Speaker Johnson’s claims are absolutely false.”
“Biden was not the official nominee,” Douglas said. “The nominee is not determined until the Convention when the delegates nominate someone. The claims that there is some kind of legal reason Biden must be on the ballot are simply wrong. Every state puts on the ballot the person who the parties nominate at their convention. Trump was not the official nominee until last week when the RNC formally nominated him. There is no basis whatsoever for states not to put whoever the Democrats nominate on the ballot.”
Nonetheless, the conservative Heritage Foundation told Newsweek it might spend millions to launch court challenges.
Mike Howell, executive director of the Heritage Foundation’s Oversight Project, told Newsweek some state laws may make it more difficult than others for Democrats to replace their candidate. For example, “Wisconsin does not allow withdrawal for any reason besides death,” a Heritage Foundation memo states.
That’s referring to language in the Wisconsin state candidate ballot access procedures, which states, “Any person who files nomination papers and qualifies to appear on the ballot cannot withdraw their name from the ballot after filing. The name of that person shall appear upon the ballot except in case of death of the person.”
But whether Biden can remove his name from ballots is irrelevant, Foley told us.
“That section of Wisconsin law is inapplicable to the current context,” Foley said. “Biden has NOT been placed on the general election ballot in Wisconsin (or anywhere else). The relevant provision of Wisconsin law is this: ‘Each recognized political party must certify to the general accountability board no later than the first Tuesday in September preceding a presidential election the names of the candidates for president and vice-president.'”
There is a separate issue, Foley said, of state deadlines for getting the names of the party’s nominees on the ballot.
“The earliest deadline is Tuesday, August 20 (as far as I’m aware), now that Ohio has pushed its deadline back to September 1,” Foley said. “As long as the Democrats officially choose their nominees by that August 20 deadline, which is in Washington State, there is [no] basis for any argument to keep the party’s nominees off the ballot for timing reasons.”
In order to alleviate any of those concerns, the DNC had signaled that it intended to hold a virtual call of delegates to nominate a candidate before the convention. The Democratic National Convention in Chicago starts on Aug. 19 and ends Aug. 22.
“There is the implication [in Johnson’s comments] that states have different rules and the open convention will run afoul of those rules,” John Fortier, a senior fellow at the American Enterprise Institute, told us via email. “This concern is not relevant at the convention stage. But it would be relevant if President Biden had dropped out later, after the convention and as states were beginning to print their ballots. States have deadlines by which they need to know the names that will go on the ballot, and they have procedures for potentially changing a name on a ballot. But all of this would only apply after the convention when state deadlines for getting on the ballot would apply.”
Democratic Party lawyer Marc Elias posted confidently on Threads, “Before the media gets rolling, let me be clear: The Democratic nominee for president will be on all 50 state ballots. There is no basis for any legal challenge. Period.”
Editor’s note: FactCheck.org does not accept advertising. We rely on grants and individual donations from people like you. Please consider a donation. Credit card donations may be made through our “Donate” page. If you prefer to give by check, send to: FactCheck.org, Annenberg Public Policy Center, 202 S. 36th St., Philadelphia, PA 19104.