As rumblings on the left for President Biden to end his reelection bid grew louder, Republicans became more overt in trying to keep the incumbent as their opponent. Former president Donald Trump’s campaign manager described the calls for Biden to stand aside as a “coup.”
House Speaker Mike Johnson (R-La.), during an interview Sunday, suggested that such a move would somehow be illegal.
End of carousel“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 ABC News’s “This Week.”
“Fourteen million Democrats voted to make Joe Biden the nominee,” Johnson continued. “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 backroom and switch it out because they’re — they don’t like the candidate any longer.”
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In June — even before the presidential debate that accelerated calls for Biden to withdraw from consideration — the Heritage Foundation went so far as to draft a memo making a legal case against Biden being replaced. It argued, for example, that Wisconsin “does not allow withdrawal [from the ballot] for any reason besides death.”
But as election law expert Rick Hasen noted this month, there’s a huge asterisk here — one that applies to any effort to suggest that Biden is the party’s committed candidate for president.
Biden isn’t the Democratic nominee at all, in Wisconsin or anywhere else. He’s not being removed from the ballot because he isn’t on the ballot. The party has no nominee until its delegates vote at the Democratic convention in August, and now they will not vote for Biden.
Remember that the party decides how it wants to settle its nomination. If the Democratic Party wanted in future years to make primary votes merely advisory, it could. It would be a bad idea, but it could. As recently as 2008, the party’s nominee could be (and nearly was) determined by so-called “superdelegates,” convention attendees who were allowed to vote for whatever candidate they wanted. Even now, the party could (and may) adopt rule changes that shift the process for identifying who appears on the ballot.
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Joe Biden, as any rote article from a traditional media outlet will remind you, is the party’s presumptive nominee, just as Trump was the Republican Party’s presumptive nominee until last Thursday. Biden has, as Trump had, a majority of delegates committed to backing him at the convention. That Republican majority voted for Trump when the time came. Biden’s majority will not, so he won’t be the nominee after all.
Johnson’s argument is that this is somehow illegal because it runs contrary to the will of the electorate. (This is an ironic argument to make in support of Donald Trump’s position, given how he fared in the 2016 election, but that’s neither here nor there.) And while it is true that Biden won the most votes over the course of the Democratic primary process, it is not as though he triumphed over a crowded field of well-positioned contenders. Major candidates chose not to challenge him in part because none wanted to be blamed for helping Trump return to the White House.
Nor were Democrats thrilled about Biden. Back in April, after many of the primaries had been completed and well before his disastrous debate on June 27, Pew Research Center found that more than 6 in 10 Biden supporters wanted to see him off the ballot. In several polls, a majority of those who planned to vote for Biden said they were doing so primarily because they wanted Trump to lose. It is safe to say their loyalties will transition easily to another candidate — whichever one (presumably Vice President Harris at this point) gets the majority of delegate votes.
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A few motivations are at play here for Republicans. One is to cast Biden’s replacement as the product of an anti-democratic process, thus muddying criticisms of Trump’s hostility to American democracy. Another is to simply make the transition as painful as possible, launching lawsuits and rhetoric that keep Democrats from consolidating for as long as possible.
It seems safe to assume, too, that the GOP is aware that a long-shot legal challenge landing at the Supreme Court might yield a victory. Many legal experts, for example, assumed that the court would quickly reject Trump’s request for broad immunity from criminal prosecution. Then he got it.
A challenge to the determination of the Democratic Party’s nominee centered on a shift that unfolds before there is a nominee would have an ever higher legal bar to clear. Republicans would be arguing that anyone who got the most votes in the other party’s nominating process had to appear on the general-election ballot — even though what was assigned by those elections was delegates. Delegates who have no power until the convention and whose actions are bound by malleable rules that the party itself sets.
It’s a silly and unserious argument. But faced with a candidate whom Republicans clearly see as more threatening to Trump, it’s not hard to see why they’re making it.
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