Republicans say they will sue to keep Biden on the ballot

Just hours before President Joe Biden announced he would not seek reelection to the White House, Republican House Speaker Mike Johnson Threatened lawsuit Trying to force Biden to appear as the Democratic nominee on the ballot in at least some states.

“Each state has its own system,” Johnson told ABC News, “and in some states it’s not possible to simply change the candidate.”

In a system ruled by law, Johnson’s threats are hollow. Although Biden was the Democratic presidential candidate until he decided to withdraw from the race, legally he can only become the Democratic nominee after he is formally nominated by delegates to the Democratic National Convention. Scheduled to start on August 19. Therefore, there is no need to “replace” Biden with another candidate because Biden has never officially appeared on the 2024 ballot in any state.

Nevertheless, the world we live in is still postTrump v. United States(2024), the Supreme Court ruled that former President Donald Trump is immune from prosecution for any crimes he committed using the power of the presidency. No longer has legal basis It is more convincing than the decision to force the Democrats to elect Biden as president. Therefore, it cannot be completely ruled out that the Republican-controlled Supreme Court will make up some reasons to undermine the Democrats’ entry into the White House.

Such sabotage would be hard to defend in the Supreme Court, in part because the type of lawsuit Johnson envisions has been undermined by the court’s own rulings in favor of Trump. Trump v. Anderson (2024) overturned Colorado’s attempt to remove Republican Donald Trump from the 2024 ballot because of Trump’s role in the January 6 insurrection, while also prohibiting any state from overturning the Democratic Party’s choice of nominee.

Anderson Heavy reliance United States Term Limits v. Thornton (1995), which held that “the power to elect federal officers must be delegated to the states, not retained by them.” That means that even if a state wanted to remove the Democratic presidential candidate (almost certainly Vice President Kamala Harris) from the ballot and replace her with Biden, it would have to point to a federal constitutional provision or law that allowed it to do so.

Although Speaker Johnson did not specify which states’ laws might prevent the Democratic Party from nominating Harris instead of Biden as the presidential candidate, the Heritage Foundation, a far-right think tank with close ties to the Republican Party, issued a memo claiming that three states – Georgia, Nevada, and Wisconsin — Laws could be enacted to hinder the Democratic transition from Biden to Harris.

But none of those state laws should be interpreted as preventing Harris from becoming the 2024 Democratic presidential nominee.

Georgia law does require some presidential candidates to file a “notification of candidacy” in early July, but the same law Exemption of party nominees In case there was any doubt about what Georgia’s law meant, top state election official Gabriel Sterling confirmed it on X (formerly Twitter) Monday morning. No matter who the Democrats elect at their convention in August will appear on the Georgia ballot.

Similarly, in Nevada, regulations promulgated by the Secretary of State’s office provide that “each major political party must furnish to the Secretary of State a list of its respective candidates for President and Vice President of the United States by: No later than 5:00 pm on the first working day in September The US presidential election year is upon us. ” The first day of September has not yet arrived.

Wisconsin law, meanwhile, requires that “candidates selected at a national convention” must be certified.No later than 5 p.m. on the first Tuesday in September before the presidential election” So, as in Georgia and Nevada, Biden was never certified as the Democrats’ 2024 nominee, and the party had plenty of time to choose another candidate.

So that should be the outcome of the race. In all three states marked by Heritage, the major party presidential nominees are determined after the respective party conventions. Therefore, there is no need to change the Democratic nominee from Biden to Harris because Biden has never officially become the Democratic nominee.

Still, there is a way the Supreme Court could use to undermine Harris. Normal rule is that state supreme courts have the final say on all state law issues, so the U.S. Supreme Court should not be involved in deciding which candidates qualify to run in each state’s election. Moore v. Harper (2023), however, the Supreme Court stated that if a majority of justices held that a state court’s decision “Beyond the limits of ordinary judicial review”

However, the court has never actually exercised this self-appointed power, and it is unclear how justices would defend decisions striking down state laws.

One risk Democrats should be prepared for is that a lower court judge with close ties to the Republican Party could issue a court order forcing Biden’s name back on the ballot. It’s unclear what the legal basis for such a decision would be, but there are judges — think like Christian right-wing activist Matthew Kachmalik or trial judge Aileen Cannon Acting like a member of Trump’s criminal defense team — They have shown a remarkable willingness to break the law to achieve Republican goals.

It is also easy for Republicans to file lawsuits with friendly judges. For example, any lawsuit filed in Amarillo, Texas, Automatic entry to Kacsmaryk’s court.

Would the Supreme Court uphold a ruling that Kaczmalik or Cannon and others were trying to rig the 2024 election for Donald Trump? Again, such a ruling would require an unusual level of cynicism from the justices, even by the standards of this unusually cynical Supreme Court.

Even if everything ultimately works out in the Democrats’ favor, they should at least be prepared for a judge who sides with Trump to temporarily throw the election into disarray.