Legal challenges to Democrats’ move to nominate a new presidential candidate in the wake of President Joe Biden’s unprecedented decision to drop out of the 2024 race stand little likelihood of success, election law experts told CNN.
Donald Trump allies have discussed the legal implications of removing Biden from the ballot, and whether or not they have grounds to challenge the issue, one source familiar with the discussions told CNN. It remains unclear whether or not the campaign or outside allies will ultimately bring such a challenge.
Nevertheless, election law scholars, as well as veterans of campaign litigation, told CNN that courts would be unlikely to go along with lawsuits that sought to challenge the addition of a new name on the top of the Democratic ticket.
“As a legal matter, it is up to the convention to nominate a candidate. And all the legal precedent is on courts deferring to the party’s choice for its nominee and then giving the voters the choice,” said Ben Ginsberg, a Republican campaign attorney who has served as general counsel for several previous GOP nominees.
It may be at least a few more weeks until we see any Hail Mary lawsuits tested. Because Biden dropped out before the formal mechanisms that would have made him the Democratic nominee, there is nothing yet for his opponents to challenge in court and they’ll face an uphill battle once they do.
“The Democratic Party did not have an official nominee yesterday, and the same can be said today,” said David Becker, a former DOJ attorney and election law expert who advises state election officials of both parties. “Until the delegates vote, Democratic Party rules state that there is no official Democratic nominee. There was no one to be ‘replaced’ on the ballot because there is nothing to replace yet.”
Before Biden’s departure from the race Sunday, prominent Republicans were raising the threat of lawsuits – perhaps in the hopes of further exacerbating the chaos that has plagued the Democratic Party since Biden’s poor performance at the CNN presidential debate last month.
“Joe Biden was chosen after a long, small-d democratic process by 14 million people,” House Speaker Mike Johnson told CNN’s Jake Tapper on “State of the Union.” “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 on the top of the ticket.”
“It will be litigated, I expect, on the ground there,” Johnson said.
Becker, speaking on a press call Sunday, called attempts to get a court to force Biden’s name on the ballot “less than frivolous.”
“They are not supported by anything in the law whatsoever, and what they amount to is an attempt by a political party to put someone on the ballot who chooses not to run,” Becker said.
There has been an explosion in election litigation in general, especially with Trump’s challenges to his 2020 defeat, and there could be political incentive for conservatives to sue. And as with Trump’s criminal legal troubles, courts have entertained novel and long-shot legal theories.
“There’s different dimensions to this,” said Derek Muller, an election law professor at the University of Notre Dame. “One is what the Trump campaign itself wants to do, versus what third parties or proxies want to do.”
The timing of Biden’s decision is a key factor in what happens next, legally. He made his announcement two weeks before Democrats were set to use a virtual roll call to nominate their candidate and four weeks before the convention itself is scheduled to begin.
There is no longer a presumptive Democratic nominee, though Biden himself has endorsed his Vice President Kamala Harris, boosting the case for putting her on the top of the ticket. The Biden-Harris campaign has also changed its name to “Harris for President.”
Whoever gets the backing of a majority of convention delegates — whether it’s Harris or someone else — will officially get the party’s nomination. It’s not clear yet if Harris has that level of support among the thousands of delegates.
“The way that the rules work are they’re pretty loose on the Democratic side,” election law Rick Hasen told Abby Phillip on CNN’s “NewsNight” last month, noting that even if Biden stayed in, the party delegates could have legally voted for someone else.
“The delegates would have the ability to choose a nominee and because this is happening before the convention there would be enough time” for other candidates to campaign to be the nominee, said Hasen, who is a law professor at University of California, Los Angeles.
If Republicans wanted to sue over the swap-out of Biden for someone else, they’d likely wait until after someone else was formally nominated by the Democratic Party, Muller said.
Under the usual process, after the nomination, state Democratic and Republicans parties send to the top election official in their states the name of their presidential and vice presidential candidates, and those nominees are certified for the state’s ballot.
“Until that happens, there’s really nothing to litigate in any of these states. They haven’t made any decision they haven’t accepted any paperwork. They haven’t filed any names,” Muller said. “So you have to kind of wait until you’ve gone through a nomination process and paperwork gets filed. Somebody might try to sue early, but the courts are going say, ‘What are you suing about?’”
Another key issue is who would meet the legal threshold known as standing to sue and that will likely influence where any longshot lawsuits get filed. Federal courts set a particularly high bar for standing.
In state court, standing rules vary state by state, and that is likely to influence where Democrats’ opponents could seek to bring legal challenges; Colorado, Minnesota, and Michigan have particularly generous approaches to standing, Muller said.
Groups on the right were already looking at the state-by-state intricacies, even before Biden’s announcement Sunday.
However, in most states, according to Hasen, the rules “essentially say, whoever is the nominee of the major party, gets to appear on the ballot.”
The Heritage Foundation – the conservative think tank – wrote a memo in late June through its Oversight Project that pointed to several states like Georgia and Wisconsin where it believed Democrats would run into legal issues.
“The process for substitution and withdrawal presents many election integrity issues,” the memo says. “Adherence to the law in some states may result in that process being unsuccessful for the purposes of another candidate being on the ballot.”
On Sunday, the Heritage’s Oversight 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 then you simultaneously file a press release and see if you can fundraise off 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.
