(Bloomberg) -- President Joe Biden’s exit from the 2024 race immediately sparked speculation about whether Republicans could convince courts to keep the eventual Democratic nominee’s name from appearing on ballots or block access to Biden’s campaign dollars. Election law experts of all political stripes are largely in agreement so far that such challenges are likely to fail, especially if Vice President Kamala Harris swiftly locks up the nomination following Biden’s endorsement. But the unprecedented situation opens the door to aggressive and creative lawyering.
Can Republicans sue to keep Biden’s replacement off ballots?
Before Biden’s withdrawal announcement on Sunday, House Speaker Mike Johnson suggested in a CNN interview there might be “legal hurdles” in some states to swapping candidates. Johnson’s office didn’t respond to a request for comment Monday on whether he thought legal action was still viable.
But experts said that at this stage of the election cycle — before the Democratic party formally selects its nominee and before state deadlines to certify candidates — judges would likely toss out lawsuits arguing that Biden’s successor can’t appear on November ballots.
A claim that Biden’s exit disenfranchises voters “misunderstands” the presidential primary process, said Justin Levitt, a professor and political law expert at Loyola Law School. Primary voters choose delegates for their party’s nominating convention. Delegates generally are pledged to back a particular candidate but they aren’t legally bound to do so, Levitt said.
In addition, it wasn’t clear who would have legal standing to bring a lawsuit, what law or right they could claim was violated, who they could name as a defendant or what courts would have the power to do. “You can’t force President Biden to accept the nomination,” he said.
“I find it impossible to believe a lawsuit like that would be successful,” said Ben Ginsberg, a veteran campaign lawyer for Republican candidates and fellow at the Hoover Institution. “But for the performative art of thinking that might somehow cast doubt on Harris’ legitimacy, it’s not impossible that somebody will file a non-meritorious suit to try and dust things up.”
And then there’s Ohio, where a debate about ballot access had been waged even before Biden stepped aside.
Experts did flag a potential wrinkle for Harris there. Ohio’s deadline for the major political parties to certify presidential and vice presidential candidates is Aug. 7 — well before the Democratic National Convention begins Aug. 19. Governor Mike DeWine, a Republican, signed legislation delaying that deadline to ensure Biden could appear on state ballots, although the measure doesn’t officially take effect until after the convention. Democrats had planned a virtual roll call vote early to head off any complications.
Even if Democrats scrap the plan for the earlier roll call vote, though, Ginsberg said it’s unlikely a judge would give serious weight to a ballot challenge since it was clear what Ohio lawmakers intended.
What other legal action is possible?
The campaign of Donald Trump, the Republican nominee, filed a complaint with the Federal Election Commission two days after Biden dropped out, claiming that the transfer of his $96 million campaign war chest to Harris violates the law.
Shortly after Biden anointed Harris as his preferred successor, she changed the name of his campaign committee to Harris for President and took stewardship of its bank accounts.
FEC Chair Sean Cooksey had earlier suggested there could be legal challenges over how money contributed to Biden’s campaign can be used. But one of his Democratic colleagues on the commission and conservative election law experts have disputed that.
Since Harris already was affiliated with those committees as a candidate she should be able to use the funds, said Steve Roberts, a partner at Holtzman Vogel, which has represented Republican candidates and state parties. He called speculation about potential legal action “maybe wishful thinking” by his Republican colleagues.
What is the timeline for legal action?
Another wrinkle for Trump and Republicans is time. There are just over 100 days until the Nov. 5 general election. Complaints of campaign finance violations before the Federal Election Commission can take months or even years to resolve. Courts usually will dismiss lawsuits as premature if challengers haven’t first exhausted their options before the commission.
Under federal law, a party can go to the federal court in Washington, DC, to sue the FEC if they believe the agency is moving too slowly — but only if the commission has failed to act within a 120-day window after a complaint is filed.
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