Legal experts skeptical of potential legal challenge to Democrats’ decision to nominate new candidate

CNN
—

Legal challenges to Democrats’ decision to nominate a new presidential candidate following President Joe Biden’s unprecedented decision to withdraw from the 2024 presidential race are unlikely to succeed, election law experts tell CNN.

Trump’s allies have discussed the legal implications of removing Biden from the ballot, and whether they have grounds to challenge the issue, a source familiar with the discussions told CNN. It’s unclear whether the campaign or outside allies will ultimately file such a lawsuit.

Still, election law experts and campaign litigation veterans told CNN that courts would be unlikely to accept lawsuits challenging the addition of a new name to the top of the Democratic ticket.

“The legal precedent is that the convention nominates a candidate. And all the legal precedents are that the courts defer to the party’s choice of nominee and then give the choice to the voters,” said Ben Ginsberg, a Republican campaign lawyer who has served as legal counsel to several previous Republican candidates.

It may be a few more weeks before we see such lawsuits put to the test. With Biden having dropped out before the formal mechanisms that would have made him the Democratic nominee were in place, his opponents have nothing to challenge in court yet, and they will face an uphill battle once they do.

“The Democratic Party had no official candidate yesterday, and the same can be said today,” said David Becker, a former Justice Department attorney and election law expert who advises state election officials for both parties. “Until the delegate vote, Democratic Party rules say there is no official Democratic candidate. There was no one to ‘replace’ on the ballot because there is nothing to replace yet.”

Ahead of Biden’s withdrawal from the race on Sunday, prominent Republicans raised the threat of legal action — perhaps hoping to further exacerbate the chaos that has gripped the Democratic Party since Biden’s poor performance in the CNN presidential debate last month.

“Joe Biden was chosen after a long democratic process by 14 million people,” House Speaker Mike Johnson told CNN’s Jake Tapper on “State of the Union.” “It’s going to be very interesting to see if the so-called party of democracy, the Democrats, go into a back room somewhere and switch sides and put somebody else at the top of the ticket.”

“I think it will be judged on the spot,” Mr Johnson said.

Becker, speaking at a news conference Sunday, called attempts to get a court to force Biden’s name on the ballot “less than frivolous.”

“These proposals are not supported by any legal provision, and they constitute an attempt by a political party to put on the ballot a person who chooses not to run,” Becker said.

There has been an explosion of election litigation in general, especially since Trump challenged his 2020 loss, and conservatives may have political incentives to sue. And as with Trump’s legal troubles, the courts have considered new and far-reaching legal theories.

“There are multiple dimensions to this,” said Derek Muller, a professor of election law at the University of Notre Dame. “One is what the Trump campaign itself wants to do, as opposed to what third parties or proxies want to do.”

The timing of Biden’s decision is a key factor in what happens next, legally speaking. He made his announcement two weeks before Democrats prepare to nominate their nominee in a virtual roll call and four weeks before the convention itself begins.

There is no longer a presumptive Democratic nominee, although Biden himself has endorsed his running mate Kamala Harris, strengthening the case for her as the front-runner. The Biden-Harris campaign has also changed its name to “Harris for President.”

Whoever wins the support of a majority of the convention delegates — whether Harris or someone else — will officially secure the party’s nomination. It’s not yet clear whether Harris has the support of a majority of the thousands of delegates.

“The way the rules work is they’re pretty lax on the Democratic side,” election lawyer Rick Hasen told Abby Phillip on CNN’s “NewsNight” last month, noting that even if Biden remained in office, the party’s delegates could have legally voted for someone else.

“Delegates would have the opportunity to choose a candidate and because it happens before the convention, there would be plenty of time” for other candidates to campaign to be the nominee, said Hasen, who is a law professor at the University of California, Los Angeles.

If Republicans wanted to sue Biden for someone else, they would likely wait until someone else was officially nominated by the Democratic Party, Muller said.

Under the usual process, after the nomination, the state Democratic and Republican parties send their state’s top election official the names of their presidential and vice presidential candidates, and those candidates are certified for the state ballot.

“In the meantime, there’s really nothing to litigate in any of these states. They haven’t made any decisions, they haven’t accepted any documents. They haven’t filed any names,” Muller said. “So you have to wait until you go through a nomination process and the documents are filed. Someone could try to sue earlier, but the courts will say, ‘Why are you suing?’”

Another key question is who meets the legal threshold known as standing, which will likely influence where any potential lawsuits are filed in the long run. Federal courts set a particularly high bar for standing.

In state courts, rules on admissibility vary from state to state, which is likely to influence where Democratic opponents might seek to pursue legal challenges; Colorado, Minnesota and Michigan have particularly generous approaches to admissibility, Muller said.

Right-wing groups were already studying the intricacies of each state, even before Biden’s announcement on Sunday.

However, in most states, Hasen said, the rules “basically say that whoever is the majority party candidate has the right to be on the ballot.”

The Heritage Foundation — a conservative think tank — wrote a memo in late June as part of its monitoring project that singled out several states like Georgia and Wisconsin where it believed Democrats would face legal challenges.

“The substitution and withdrawal process poses numerous election integrity concerns,” the memo said. “Compliance with the law in some states may result in the failure of this process, which could result in another candidate being placed on the ballot.”

On Sunday, the Heritage Watch Project posted on social media that it had been “preparing for this moment for months.”

“We live in an era where you file a lawsuit and you simultaneously file a press release and see if you can get money from it. So it’s a different set of interests for third-party groups,” Muller said.

CNN’s Hannah Rabinowitz, Kristen Holmes, Holmes Lybrand, Marshall Cohen and Sydney Topf contributed to this report.