After the debacle that was his performance in Thursday’s debate, there is talk that Joe Biden may withdraw from the presidential race. The idea is that Biden has shown the world that he is so physically and mentally unfit for office that if Biden is the nominee, the campaign is effectively over. No more talk of “right-wing” media producing misleading “cheap fakes” of a stumbling, stumbling Joe Biden; the world has seen through the gaslighting and finally gotten a glimpse of the many behind-the-scenes operations that conservatives have known are there since Biden spent the 2020 campaign under a table in the basement of one of his Delaware mansions.
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(This is just one example. There are many more great stories and comments at this link.)
Although the DNC can replace a candidate in the event of “a candidate’s death, resignation, or inability to serve” (see “Yes, Democrats Can Replace Biden—With Newsom or Anyone Else They Want. Here’s How”), there are two massive problems. The first is who will replace him (see “The Biden Replacement Problem”). The second is how the replacement candidate will get on the ballot in states where the deadline for ballot access has already passed.
The stumbling block in any effort to replace Biden as the nominee is convincing state governments to allow the replacement. In Ohio, for example, the deadline for putting a candidate on the ballot expires before the date of the Democratic Convention. Finally, the supposedly Republican governor, Mike DeWine, pulled out all the stops to ensure that state law was changed to Put Biden on the ballot.
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The lesson from this self-destructive fiasco was that the DNC was so uncertain whether Biden would get on the ballot that it devised a plan for a “virtual convention” to nominate him before the deadline.
According to the Constitution, the state legislatures control the “Times, places and type” of the election. A decision by the Democratic Convention that contradicts state law is unlikely to stand.
One of Legacy Foundation is preparing for a legal battle to keep Joe Biden on the ballot.
In three of the six most competitive states, there is a possibility of pre-election litigation aimed at making it more complex for a presidential candidate to withdraw due to legitimate concerns about the integrity of the election.
GA, NV and WI have specific procedures for the withdrawal of a presidential candidate with varying degrees of applicability and time frames. WI does not allow withdrawal for reasons other than death.
Important caveats include timing and triggering events. For example, some states allow withdrawal before the 74th day before an election, and failure to meet these deadlines can result in the candidate’s name remaining on the ballot (which in turn leads to post-election litigation). Likewise, the reason for the withdrawal (death, medical reasons, or others) can be determinative of the outcome. Some states, such as South Carolina, do not allow withdrawal for political reasons.
An ugly legal battle in Georgia, Nevada and Wisconsin, involving three federal appeals courts and the Supreme Court, would divert the DNC’s attention and money from a flagging Biden campaign. The strategy would not be without risk, but it could pay off to create confusion on the Democratic ticket in three swing states. It’s also a Hail Mary strategy. In 31 states, national parties are allowed to swap candidates after the convention. Some, like Texasallow a replacement until the state’s electors meet.
(2) the presidential candidate of the nominating party for an original candidate who withdraws his or her candidacy, dies, or is declared ineligible after the 74th day before the day of the presidential election, provided that the state chairman of the party delivers to the Secretary of State a certificate of the name of the substitute candidate, signed by the state chairman, not later than 2:00 p.m. on the Monday after the second Wednesday in December of a presidential election year.
Ultimately, we must expect that whoever the Democrats nominate, be it Biden or a replacement, will get on the ballot, or, failing that, that the presidential electors chosen during the election will vote for the Democrat’s replacement. Still, there doesn’t seem to be much downside to making the Democrats pay to nominate someone who was only able to run because the Democratic establishment and the media hid his true frailty from the public.
