It get stranger and stranger....

Could Republicans sue to keep Biden on the ballot?

Speaker Mike Johnson’s threat to challenge Vice President Harris’s nomination in court should be frivolous. But who knows with this Supreme Court?

by Ian Millhiser

Just a few hours before President Joe Biden announced that he will not seek a second term in the White House, Republican House Speaker Mike Johnson threatened lawsuits to try to force Biden to appear as the Democratic candidate on at least some state ballots.

“Every state has its own system,” Johnson told ABC News, “and in some of these, it’s not possible to simply just switch out a candidate.”

In a system governed by the rule of law, Johnson’s threats are empty. Though Biden was the presumptive Democratic presidential nominee until he decided to withdraw from the race, he would not legally have become the Democratic nominee until he was formally nominated by delegates to the party’s convention, which is scheduled to begin August 19. So there’s no need to “switch out” Biden for another candidate because Biden was never formally on any state’s 2024 ballot.

Still, the world we live in is post-Trump v. United States(2024), the Supreme Court decision holding that former President Donald Trump is immune from prosecution for any crimes he committed using his official authority as president. That decision had no more basis in law than a decision forcing Democrats to run Biden for president would have. So the possibility that a GOP-controlled Supreme Court will make up some reason to sabotage Democrats’ chances of holding the White House cannot be entirely ruled out.

The Court would struggle to justify such sabotage, in part because its own decisions benefiting Trump undercut the kind of lawsuits envisioned by Johnson. The Supreme Court’s recent decision in Trump v. Anderson (2024), which reversed Colorado’s attempt to remove Republican Donald Trump from the 2024 ballot because of Trump’s role in the January 6 insurrection, also cuts against allowing any state to overrule the Democratic Party’s choice of candidate.

Anderson relied heavily on US Term Limits v. Thornton (1995), which held that “powers over the election of federal officers had to be delegated to, rather than reserved by, the States.” That means that, even if a state wanted to remove the Democratic presidential nominee (who will almost certainly be Vice President Kamala Harris) from the ballot and replace her with Biden, it would have to point to a federal constitutional provision or law permitting it to do so.

Though Speaker Johnson did not identify which state laws might prevent Democrats from nominating Harris instead of Biden as their presidential candidate, the Heritage Foundation, a far-right think tank closely aligned with the GOP, published a memo claiming that three states — Georgia, Nevada, and Wisconsin — may have laws that will frustrate the Democratic Party’s transition from Biden to Harris.

But none of these states’ laws should be read to prevent Harris from appearing as the Democratic Party’s nominee on the 2024 ballot.

Georgia law does require some presidential candidates to file a “notice of candidacy” in early July, but that same law exempts the nominees of political parties that held “a national convention and therein nominated candidates for President and Vice President of the United States.” In case there is any uncertainty about what the Georgia law means, Gabriel Sterling, a high-ranking state elections official, confirmed on X (formerly known as Twitter) Monday morning that whoever Democrats choose at their August convention 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 provide the names of the party’s respective candidates for president and vice president of the United States to the secretary of state by not later than 5 pm on the first business day of September of the year of a presidential election.” The first business day of September has not happened yet.

Wisconsin law, meanwhile, provides that “nominees chosen at a national convention” must be certified “no later than 5 pm on the first Tuesday in September preceding a presidential election.” So, much like in Georgia and Nevada, Biden was never certified as the Democratic Party’s 2024 nominee, and the party has plenty of time to choose a different candidate.

So that should be the ball game. In all three states flagged by Heritage, major party presidential nominees are determined after each party’s convention takes place. So there is no need to switch the Democratic Party’s nominee from Biden to Harris because Biden never formally became the Democratic nominee.

That said, there is one possible vehicle the Supreme Court could use to sabotage Harris. The normal rule is that state Supreme Courts have the final word on all questions of state law, so the US Supreme Court should play no role in deciding which candidate qualifies for each state’s ballot. In Moore v. Harper (2023), however, the Supreme Court said that it could overrule a state court’s interpretation of a state election law if a majority of the justices thought that the state court’s decision “exceed[s] the bounds of ordinary judicial review.”

The Court, however, has never actually invoked this self-given power, and it’s unclear how the justices would defend a decision overruling state law.

One risk Democrats should be prepared for is that a lower court judge closely aligned with the Republican Party might issue a court order forcing Biden’s name back on the ballot. It’s far from clear what the legal basis of such a decision would be, but there are judges — think of figures like Christian Right crusader Matthew Kacsmaryk or Aileen Cannon, the trial judge who has behaved like a member of Trump’s criminal defense team — who’ve shown an extraordinary willingness to bend the law to achieve Republican goals.

It’s also trivially easy for Republicans to bring a lawsuit before a friendly judge. Any lawsuit filed in Amarillo, Texas, for example, automatically lands in Kacsmaryk’s courtroom.

Would the Supreme Court affirm a decision by someone like Kacsmaryk or Cannon which sought to rig the 2024 election for Donald Trump? Again, such a decision would require an unusual amount of cynicism by the justices, even by the standards of this unusually cynical Supreme Court.

Even if everything works out for the Democratic Party in the end, Democrats should at least be ready for a Trump-aligned judge to temporarily throw the election into chaos.