President Joe Biden’s withdrawal Sunday from the presidential race could result in legal challenges up to the election in November, election law experts said.
Among those potential legal actions are challenges to who appears on the Democratic ticket on ballots in some states — although election experts seemed to agree Democrats would be able to have their nominee listed — and the fate of nearly $100 million in Biden campaign cash.
Derek Muller, a law professor at Notre Dame University who specializes in election law, wrote on social media Sunday that there is a “high degree of uncertainty right now. And the longer the process of choosing a new nominee takes, the more legal uncertainty we’ll see in this election.”
Speaker Mike Johnson, R-La., on Sunday elaborated on why he thinks Republicans are likely to bring legal challenges against any attempts to replace Biden on a Democratic ticket — and Democrats would run into “some legal impediments” in a few states.
“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,” Johnson said on “This Week with George Stephanopoulos” on ABC News, before Biden announced he was bowing out.
But he alluded to the unclear path ahead. “So, we’ll how it plays out. We don’t know,” Johnson said.
Rick Hasen, a law and political science professor at the UCLA School of Law and an election law expert, wrote on his blog earlier this month that there is no credence to a Heritage Foundation memo that says litigation could make the process of listing someone other than Biden on the ballot “difficult and perhaps unsuccessful.”
“Joe Biden is not the party’s nominee now, and states generally point to the major party’s nominee as the one whose name is on the ballot,” Hasen wrote. “And in the unlikely event that a state law would make Biden be forced to be listed on the ballot (I’m not even sure how that could be), then I expect litigation would place the actual nominee of the party on the ballot.”
“Voters should have the right to vote for the party’s candidate, and there are cases that affirm this principle that go back a while,” Hasen wrote.
Muller wrote that there are no legal impediments at this point because Democrats have not yet chosen a nominee, and their nominee will have ballot access in every state.
“If Democrats wait to hold a nomination process at the convention in Chicago, Democrats could face new ballot access legal challenges in states like Washington, which have deadlines around the time of the convention,” Muller said.
David Becker, an election law expert and executive director of The Center for Election Innovation & Research, said that states have not finalized ballots.
If Democrats come away with an official nominee by the end of their convention, there is no legal barrier to that person being on the ballot, Becker said. “The Republicans can’t tell the Democratic Party who to put on the ballot,” he said.
Ohio Gov. Mike DeWine, when asked last week whether Democrats need to have virtual roll call vote for their nominee before Aug. 7 in case Republicans in Ohio try to go to court to keep Biden off the ballot, threw cold water on the idea.
“No, we’re not going to do that,” DeWine said. “Nobody in Ohio is going to stand up and say the Democrat nominee shouldn’t be on the ballot in Ohio. It would be absurd.”
When it comes to how the Harris campaign could use the campaign funds, experts said it would be a fairly smooth process if Harris is the nominee. The Biden for President account had $96 million on June 30, according to the latest disclosure to the Federal Election Commission.
“If Vice President Harris — who has indicated her intention to run and Joe Biden has indicated his intention to endorse her — if she wants to use that campaign cash, that is a fairly seamless effort, she will have access to that campaign cash,” said David Becker, an election law expert and Executive Director of The Center for Election Innovation & Research. “Others will not.”
Muller wrote that he doubts a majority of the FEC would believe Harris could not use those funds. “While there may be litigation, it’s not likely to be resolved before the election,” Muller wrote.
Herb Jackson contributed to this report.
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