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![Vice President Kamala Harris walks back into the White House after speaking at an event with NCAA college athletes July 22, 2024. It was her first public appearance since President Joe Biden endorsed her to be the next presidential nominee. (AP)](https://static.politifact.com/CACHE/images/politifact/photos/AP24204585687293/2e2338e53c2191009028a62b810828d3.jpg)
![Vice President Kamala Harris walks back into the White House after speaking at an event with NCAA college athletes July 22, 2024. It was her first public appearance since President Joe Biden endorsed her to be the next presidential nominee. (AP)](https://static.politifact.com/CACHE/images/politifact/photos/AP24204585687293/186ba863b2d3f869819ff7ef254312cb.jpg)
Vice President Kamala Harris walks back into the White House after speaking at an event with NCAA college athletes July 22, 2024. It was her first public appearance since President Joe Biden endorsed her to be the next presidential nominee. (AP)
If Your Time is short
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President Joe Biden racked up enough delegates during the primary to be the presumptive nominee, but the choice of nominee is not official yet. It will become official either in the run-up to the Democratic National Convention that starts Aug. 19 or at the convention itself.
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States set deadlines for receiving the names of presidential nominees so that ballots can be printed. Those deadlines are generally after the convention.
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Because there is no formal nominee, and because state ballot deadlines haven’t passed yet, legal experts say there’s no problem switching Biden for someone else. The U.S. Supreme Court could have the final say.
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 that 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," Johnson said.
Former 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 may rule on those 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 also 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 so, it’s unclear that would prevent the Democrats from approving the nominee of their choice at the convention, experts said.
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 to Aug. 22 in Chicago.
A key reason why 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 itself. Unless a major Democratic figure mounts a serious challenge — which did not appear to happen within 24 hours of Biden’s announcement — 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 law professor at the College of William & Mary. "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 also 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."
A related issue for Democrats is ensuring the new nominee’s name is passed along to states in a timely manner.
Even before Biden dropped out, Democrats had been planning a potential 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, it was eyeing legal challenges in some states it 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 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 generally fall in late August or early September.
There may 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 during 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."
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 prohibit 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.
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Our Sources
CNN, State of the Union transcript, July 21, 2024
ABC, "This Week" transcript, July 21, 2024
CNN, Legal experts are dubious of any court challenge to Democrats' move to put forward new nominee, July 21, 2024
Roll Call, Biden withdrawal could prompt legal fights over ballots, July 21, 2024
Notre Dame law professor Derek T. Muller, X thread, July 21, 2024
Iowa Capital Dispatch, If a presidential nominee drops out, what happens to states’ ballots?, July 19, 2024
Election lawyer Marc Elias, X post, July 22, 2024
Gabriel Sterling, Georgia secretary of state chief operating officer, post on X, July 22, 2024
Nevada Independent, Biden drops out of presidential race; Nevada leaders react, July 21, 2024
Project Oversight, X post, June 21, 2024
Dave Portnoy, X post, July 21, 2024
Liz Wheeler, X post, July 21, 2024
U.S. Rep. Jim Banks, R-Ind., X post, July 21, 2024
Ballotpedia, Cousins et al. v. Wigoda et al. (1975)
North Dakota Law Review, Elections - constitutional law - A state cannot constitutionally compel a national political party to select its delegates in a nanner that violates the party’s rules, 1982
Ballotpedia, Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 1980
Newsweek, Legal issues hang over Kamala Harris' candidacy: lawyer, July 22, 204
Rick Hasen, Kamala Harris replacing Joe Biden is not antidemocratic (article in Slate), July 22, 2024
Campaign Legal Center, A candidate can still be added to the ballot under all states’ rules, CLC says, July 22, 2024
Alabama secretary of state, statement to PolitiFact, July 22, 2024s
Ohio secretary of state, statement to PolitiFact, July 22, 2024
Email interview with Edward Foley, election law director at Ohio State University, July 22, 2024
Email interview with Rebecca Green, associate law professor and co-director of the election law program at the College of William & Mary, July 22, 2024
Email interview with Stephen Griffin, Tulane University law professor, July 22, 2024
Email interview with Michael Gerhardt, University of North Carolina law professor, July 22, 2024
Email interview with Brian Kalt, Michigan State University law professor, July 22, 2024
Email interview with Frank Bowman, University of Missouri emeritus law professor, July 22, 2024
Email interview with Neama Rahmani, former prosecutor who later co-founded the firm West Coast Trial Lawyers, July 22, 2024
Email interview with Ilya Somin, George Mason University law professor, July 22, 2024
Email interview with Adav Noti, Campaign Legal Center executive director, July 22, 2024
Email interview with Josh Putnam, political scientist specializing in delegate selection rules and founder of the political consulting firm FHQ Strategies LLC, July 22, 2024
Email interview with Griffin Neal, spokesperson for House Speaker Mike Johnson, R-La., July 22, 2024
Email interview with Cecilia Heston, Nevada secretary of state spokesperson, July 22, 2024