President Biden has Withdrawn from His Re-Election Campaign, indorsing His VP Kamala Harris.
America’s Ballot Access Laws, the Procedures for how Candidates are placed on the Ballot in each State, are notoriously Difficult compared to other Democracies’ Laws.
Experts, such as my friend Richard Winger, the longtime publisher of Ballot Access News and the Nation’s foremost Authority on the Topic, have long decried the Arbitrarily difficult Petition Thresholds and Discriminatory Treatment of Third-Party and Independent Candidates.
There is No credible basis for the Claims that the Democratic Party’s Candidate for President, whoever that may be, will be Kicked-Off the Ballot in any State. As things stand currently, No relevant Deadlines have passed. The Party remains Free to choose its Nominee however it wants, and to choose whomever it wants.
Much of the Panic stems from Claims by the Heritage Foundation, the Organization behind Project 2025, arguing that Ambiguities in State Election Laws could provide an Opportunity to Challenge a Biden Replacement.
On the Legal merits, these Arguments are Thin, bordering on Specious. But more importantly, they are Inapplicable for now. As it currently Stands, State Democratic Parties wouldn’t be Replacing Biden, because He is Not yet the Official Party’s Nominee.
Zack Smith, a Senior Legal Fellow at Heritage, has claimed that “in many states, including in several key states, the deadline for getting on the ballot has already passed.” This is simply Untrue, and Media Outlets should Fact-Check this Assertion, rather than taking it at face value.
Winger, calls much of the Coverage about this Threat “Gullible.” As He notes, “there would be no legal problem in any state.” UCLA Professor Rick Hasen, another widely respected Election Law Expert, has also observed “the bottom line is that there is unlikely to be an election law impediment to replacing Biden.”
In every State, both Major Parties are Qualified for what is known as “Automatic” Presidential Ballot Access. In other words, their Nominees do Not need to gather Petition Signatures or Clear any other Hurdles to secure a spot on the General Election Ballot.
Instead, the Qualified Political Parties tell the State’s Election Authorities, the Secretary-of- State, who its Candidates are. This Process is never completed Prior to the Formal Nomination by the Party’s National Convention.
With One potential Caveat, No State currently requires Major Parties to Certify their Presidential Ticket any earlier than Aug. 21st. Biden is Not Filed to appear on the Ballot in any State at the moment, because He has Not yet been Formally Nominated.
The One complication arises in Ohio, which previously had an unusually early Deadline of Aug. 7th. At the insistence of Gov. Mike DeWine (R), the State Legislature passed a Law to accommodate this year’s later Democratic National Convention (DNC), scheduled to begin on Aug. 19th.
Ohio’s New Law sets the Deadline as Sept. 1st. However, the DNC remains skittish, noting the Contradiction that Ohio’s New Law does Not actually come into effect until Sept. 1st.
For this reason, the Party had planned to conduct a Virtual Roll Call of Convention Delegates to formalize the Nomination sometime prior to Aug. 7th.
Even with this wrinkle in Ohio, there is No potential Problem. All of the State Laws to which Heritage’s Commenters have pointed, Only concern the Process for the Party to Replace One of its Candidates later in the Calendar, after having previously Certified the Biden-Harris Ticket.
Another concern that has been raised, is that the Party could be Open to Litigation for Disregarding the Results of the Primary Elections.
However, this Misunderstands the Role of State-Run Primary Elections in the Presidential Nomination Process. The Republican and Democratic Parties are Not required, and can Not be Required, to use the Primaries at all.
The Primaries are, in effect, a Nonbinding Straw Poll run by State Governments. It is only through the Party’s Internal Rles, as a Pivate Oganization, that Pimaries are used to Alocate Cnvention Dlegates among the Cndidates seeking the Nomination.
We have already seen both Parties decide to ignore State Primaries in this Election. Democrats did so in New Hampshire, which held its Primary too Early and Out-of-Turn, according to the Party’s newly adopted Schedule.
Republicans did the same in Nevada, spurning the State’s Primary Election in favor of a Caucus Administered by the Party.
This presents No Legal Problem because Political Parties, in deciding whom to Nominate and how, are engaged in their own Freedom-of-Speech and Association, fully Protected by the First Amendment.
The Supreme Court has firmly Ruled State Governments have No Power to Impose any Requirements on how the Party Conventions Function or whom they may Choose to Nominate.
With so much at stake in this year’s Election, Democrats are understandably a bit Panicked. There are a great many things to be worried about, with the unprecedented Reality of an Incumbent President Dropping-Out of the Race this late, amid serious Concerns about his Declining Mental Acuity and Physical Stamina.
But with enough things on their Plate to worry about, placing their Party’s Nominee on the Ballot need Not be One of them.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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