On Sunday, Joe Biden dropped out of the race and threw his support behind Kamala Harris, hoping to make the transition between them as seamless as possible. But Democrats will have to contend with the legal challenges that Republicans have promised to unleash over some genuine uncertainties in election and campaign finance law.
Most experts agree that there are no serious barriers to swapping Biden out for Harris, even at this late date.
“Switching out Biden is no issue — he’s not the nominee,” said UCLA professor and election law expert Rick Hasen. “He’s always been the presumptive nominee.”
Still, both state ballot access laws and federal campaign finance laws could lead to legal hiccups that Democrats need to be prepared for. For one, no presidential candidate in the modern era has swapped the presumptive nominee for their running mate, leaving at least some legal ambiguity about whether Harris can inherit the large war chest Biden amassed for the fall general election.
In addition, several states bent their election laws to accommodate the Democrats’ late-summer convention. Those accommodations could form the basis for long shot legal challenges to putting the party’s nominee, whether Harris or someone else, on the ballot.
Republicans are already planning to try to challenge this process. A June memo from the Heritage Foundation’s Oversight Project argued: “If the Biden family decides that President Biden will not run for re-election, the mechanisms for replacing him on ballots vary by state. There is the potential for pre-election litigation in some states that would make the process difficult and perhaps unsuccessful.”
Because the Democratic National Convention is being held relatively late in the summer, there are some technical issues around meeting state deadlines. Ohio’s Legislature fixed the state election law, but there could be some slim grounds for a legal challenge there. And in Washington state, there are questions about whether the secretary of state can push back the deadline without the Legislature’s permission.
Legal challenges in those states or others are possible, but historically, courts have done what they can to preserve access to the ballot, especially for major party candidates.
“Courts have always protected the right of ballot access for serious candidates,” Hasen said.
“The ballot access arguments are very unlikely to succeed.”
The other unresolved issue that could prompt complaints or litigation is over whether Harris can inherit the money Biden raised for the general election campaign in the fall.
Biden’s campaign on Sunday quickly changed its name to Harris for President with the Federal Election Commission, signaling its intention to try to use funds raised by Biden for a Harris general election run.
“If Harris is the nominee, it will be a seamless transition” financially, David Becker, executive director of the Center for Election Innovation & Research, said during a press call Sunday. “Her name’s on all the paperwork. That shouldn’t cause any problem at all.”
That’s a position held by the nonpartisan Campaign Legal Center, as well as campaign finance lawyers who have represented candidates of both parties. One Democratic appointee to the FEC, Dara Lindenbaum, said Sunday on X she agreed that Harris could inherit the funds. The FEC is the nation’s primary campaign finance regulator.
But the matter has never been considered and could result in a legal challenge.
Any complaint from Republicans over Harris’ use of Biden’s campaign funds would probably land with the FEC — a historically dysfunctional enforcement agency divided evenly along party lines that once even deadlocked on how to celebrate its own 40th anniversary.
“They can bring an FEC complaint. Good luck with that,” said one Democratic election lawyer.
The matter could also go to court.
If the nominee is not Harris, Becker said the issue gets a bit trickier.
In that case, he said that the “money can still be transferred to the DNC or perhaps a PAC” and could be used for some campaign functions, such as field operations or independent advertising. But there would be some additional restrictions on how the money can be spent in coordination with an official campaign.
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Byron Tau is a reporter at NOTUS. Nuha Dolby is a NOTUS reporter and an Allbritton Journalism Institute fellow.