Can Republicans challenge the Democratic Party swap of Harris for Biden at the top of their ticket at the state level?
It's an intriguing question. The Heritage Foundation's legal brains asked it in a memo before Biden's disastrous debate and found some grounds for the belief that some state ballots wouldn't allow any change at the top.
— Oversight Project (@OversightPR) June 24, 2024
Some states like South Carolina and Wisconsin "don’t allow candidates to be removed for political reasons, or reasons other than death." The memo argues that if Biden were to drop out, “There is the potential for pre-election litigation in some states that would make the process [of dropping Biden] difficult and perhaps unsuccessful.”
However, legal experts point out that those state laws refer to a candidate who had already been confirmed by the party as the nominee. Biden may have wrapped up the delegates but with no formal vote, technically, the Democrats had no nominee.
Election law professor Rich Hasen writes that "Joe Biden is not the party’s nominee now, and states generally point to the major party’s nominee as the one whose name is on the ballot.”
Should Harris struggle to earn the nomination, it could run up on state deadlines to put a candidate on the ballot. Democrats already planned to hold a virtual roll call vote Aug. 1 ahead of the convention to circumvent potential issues with Ohio’s deadline and could run into similar issues in states such as Washington should they wait until their actual convention, University of California, Los Angeles law professor Rick Hasen wrote in a blog post.
“Democrats would be smart to still do that virtual roll call by August 7 if they’ve coalesced around Vice President Kamala Harris or another candidate,” Hasen wrote. “That would avoid even the small risk of a serious lawsuit.”
Related: Despite Her Big Start, Harris Faces an Uphill Battle
Republicans would be urinating in the wind if they tried to disqualify Harris from the ballot. But another issue with the Biden-Harris switcheroo could also invite legal challenges.
Who gets the $100 million in cash-on-hand in the Biden-Harris campaign fund?
The campaign renamed the fundraising committee the "Kamala Harris Campaign Committee" on Monday. Previously, it had been the Biden-Harris Campaign Committee.
Sean Cooksey, the Trump-appointed chair of the Federal Election Commission (FEC), suggested that there was a question about who owns that $100 million in campaign funds.
But campaign finance lawyers have pointed to the fact that the campaign registered itself as the “principal campaign committee” for both Biden and Harris when filing its registration statement with the agency as reason that those funds are rightfully hers, too.
Dara Lindenbaum, one of the six FEC commissioners, co-signed that argument Sunday, writing on X that if Harris becomes the Democratic Party’s nominee, “she gets access” to Biden’s funds.
“My guess is there might be some questions or legal wrangling about that,” Derek Muller, a professor at Notre Dame Law School said, “but I would assume we won’t have answers until well after the election.”
The money will be long spent by then. Maybe the FEC could force the Haris campaign to pay it back if the courts rule against them.
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