By The Democratic National Committee pressed forward Wednesday with a plan to hold a virtual roll call to nominate President Biden for reelection during the first week of August, a process that could short-circuit a burgeoning effort from within the party to replace him amid questions about his acuity.
Party leadership cited the risk of a legal quagmire if Biden is not formally nominated before the party’s convention in Chicago, which begins Aug. 19. DNC officials said looming ballot deadlines in a handful of states could give GOP-aligned groups the opportunity to challenge in the courts any nominee whose status is not formalized by those dates.
But officials in several of those states said in emailed statements that there are processes in place to ensure that Biden — or another Democrat — would appear on the ballot even if the deadline passed before the nomination was official. And some experts say the notion that a Democratic nominee would be kept off the ballot is far-fetched.
“If there were a challenge, courts side with giving ballot access for major candidates.,” said Rick Hasen, an election law professor at UCLA. “It’s not realistic that this would happen.”
The DNC’s decision to publicly raise legal doubts comes as Democratic lawmakers who want Biden to step aside have raised alarm that the party leadership could try to accelerate Biden’s nomination even further. Rep. Jared Huffman (Calif.) had been circulating a draft letter among fellow Democrats arguing against a rushed vote. On Wednesday, he dropped the effort after the DNC confirmed that voting wouldn’t begin until at least Aug. 1.
A virtual roll call before the convention would be unprecedented for a major party, with both Democrats and Republicans traditionally formalizing their nominee at their convention — even if the selection has already been made months earlier through the primary and caucus process.
Democrats in May moved their nomination plans forward to meet Ohio’s Aug. 7 ballot deadline. Ohio lawmakers subsequently passed a law temporarily changing the deadline to early September to ensure that Biden would be on the ballot. But the DNC decided to still hold a virtual roll call, arguing that it could not trust Ohio GOP leaders to adhere to the new timeline.
In a letter Wednesday, co-chairs of a DNC panel overseeing convention rules suggested that the Ohio situation opens them up to “litigation about the efficacy of our filings.”
“We believe a virtual element is the wisest approach because it ensures ballot access in the states that we need to win in November and avoids potential risks if there is delay in the process,” the letter states.
It goes on to list five states — Oklahoma, Washington, California, Virginia and Montana — with mid- to late August ballot deadlines that the letter contends would be hard to meet if the party waited until the Aug. 19 convention to nominate a candidate.
Mid-August is a typical time for a nominating convention, and there is no history of major-party nominees being kicked off a ballot because of problems meeting deadlines. States often provide contingencies for missed deadlines.
Oklahoma’s deadline is Aug. 21, falling in the middle of the convention, while Virginia’s is on Aug. 23, which is just after. Both states have laws that provide flexibility around those deadlines, however.
In other states, like Washington, it’s not law, but election officials have also allowed for provisional nominees to be submitted if parties couldn’t meet the state’s ballot deadline.
“The Office of the Secretary of State is committed to ensuring Washington voters have the opportunities to make their voices heard in the presidential election that voters in every other U.S. state will have,” said Derrick Nunnally, spokesman for the office.
Nunnally said the issue came up in 2020 and the office reached out to the Democratic and Republican parties and told them to submit provisional certifications.
“That opportunity can be available this year due to the Democratic Party’s schedule,” Nunnally said.
A spokesman with the California secretary of state’s office said the office wasn’t sure what would happen if a political party didn’t send its nomination by the ballot access deadline and said the office is looking into it.
Hasen said in a scenario in which Republicans sued in California to keep Biden off the ballot, the heavily Democratic state legislature would probably pass a law permitting access.
Derek Muller, an election law professor at the University of Notre Dame, said Democrats could face litigation in states like Washington where accepting provisional nominees is a decision made by the secretary of state and not codified in law.
“I think it’s been a matter of custom and habit in past years, but obviously you have an increasingly litigious election era where people just want to challenge these deadlines,” Muller said.
Fear over Republican lawsuits related to ballot access stems from a memo that the right-wing Heritage Foundation circulated in early April describing its plans to sue in certain battleground states if Democrats replaced Biden at the top of ticket.
Election experts have said Republicans wouldn’t have a case if Biden stepped aside before becoming the official nominee. But staffers for the DNC and the Biden campaign have been warning lawmakers that Republicans will launch legal challenges if Democrats name a new nominee, according to six House Democratic aides and lawmakers. They said that Biden’s circle has also argued that it would create chaos and uncertainty and potentially threaten electoral votes if Democrats don’t get their candidate on the ballot in certain states.
The Biden campaign denies it had conversations with lawmakers about ballot access. “This is completely false. The campaign is not promoting this argument,” a campaign spokesperson said. The DNC did not comment beyond the letter that party leaders issued Wednesday.
The issue has been discussed widely among Democrats on the Hill. Some of Biden’s allies, especially those within the Black Caucus and the Progressive Caucus, have been using the specter of possible legal challenges as an argument for sticking with Biden.
Some DNC members had suggested holding the virtual roll call at the end of July, but House Minority Leader Hakeem Jeffries (N.Y.) and Senate Majority Leader Charles E. Schumer (N.Y.) urged the DNC to stick with its original plan to confirm its nominee in early August.
Huffman, who has argued against a rushed roll call vote, said in an interview that party leaders have assured him that by keeping the date in August, Democrats will have time to examine the nominating process and determine whether to keep Biden at the top of the ticket. The California congressman said he would prefer that the nomination happen at the convention and is skeptical that the earlier virtual roll call is necessary.
“We want to hear from lawyers on if this is what the DNC says this is or is this a fig leaf to squelch debate” about Biden, Huffman said.
Pressure on Biden continues to build after a faltering debate performance, with Rep. Adam Schiff — a Democrat running for Senate in California — becoming on Wednesday the latest lawmaker to call for him to step aside. Rep. Lloyd Doggett (Tex.), the first House Democrat to publicly ask Biden to leave the race, said Wednesday that the DNC should ditch the virtual roll call altogether and nominate the presidential ticket as usual at the in-person convention in Chicago.
“Fast-forwarding the nomination process is no way to convince the many unconvinced voters in the growing number of battleground states,” Doggett said in a statement.
Biden’s campaign expressed frustration with the focus on the virtual roll call during a news conference in Milwaukee.
“The Republicans are lying to the American people about virtually every single issue that impacts their lives,” said Quentin Fulks, Biden’s principal deputy campaign manager, “and we’re caught up in process stories.”
The overwhelming majority of delegates attending the Chicago convention are pledged to Biden after the president dominated the primaries, though they are not legally bound to him. Several delegates said in interviews that they were kept in the dark about the date of the virtual roll call and were getting their updates from the media.
A donor and delegate, who spoke on the condition of anonymity so he could share candid thoughts, said he had received a call from a Biden campaign aide last week who mentioned a roll call at the end of July. The delegate, who would like to see the president step aside, was upset that the roll call might be expedited and believes the nomination should happen at the convention. The virtual roll call is a “bad idea and surefire way to lose an election,” he said.
Maeve Reston, Paul Kane and Marianna Sotomayor contributed to this report.