Heritage Foundation Gears Up for Fight to Make Democrats Keep Joe Biden on the Ballot

AP Photo/Andrew Harnik

After the debacle that was his performance in Thursday's debate, talk is swirling of Joe Biden withdrawing from the presidential race. The idea is that Biden demonstrated to the world that he was physically and mentally unfit for the job to such a degree that the general election campaign is effectively over if Biden is the candidate. There are no more talks of "right wing" media producing deceptive "cheapfakes" of a doddering, stumbling Joe Biden; the world has seen through the gaslighting and finally caught a glimpse of the same many behind the curtain that conservatives have known was there since Biden spent the 2020 campaign hiding under a table in the basement of one of his Delaware mansions.

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(this is just a sample; there is a lot more great coverage and commentary at this link.)


Though the DNC can replace a nominee in the event of "death, resignation, or disability of a nominee" (see Yes, Democrats Can Replace Biden - With Newsom or Anyone They Want. Here's How.), there are two huge problems. The first is who replaces him (see The Biden Replacement Problem). The second is how the replacement nominee makes it onto the ballot in states where the deadline for ballot access has already closed.

The stumbling block in any effort to replace Biden as the candidate is convincing state governments to permit the substitution. For example, in Ohio, the deadline for placing a candidate on the ballot happens before the date of the Democrat convention. Eventually, the allegedly Republican Governor Mike DeWine pulled out all the stops to ensure state law was changed to get Biden on the ballot.


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SHOCKER: Ohio's Mike DeWine Tries to Make Legislature Keep Joe Biden on the Ballot – RedState

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Ohio's Sec of State Informs Dems That Biden's Name May Not Make November Ballot

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The lesson from this self-defeating fiasco was that the DNC was so uncertain that Biden could be placed on the ballot that they created a plan for a "virtual convention" to nominate him before the deadline. 

Under the Constitution, state legislatures control the "Times, Places and Manner" of elections. A decision by the Democrat Convention that comes into conflict with state law is unlikely to stand.

One The Heritage Foundation is girding for a legal battle to keep Joe Biden on the ticket.

Three of the expected six most contested states have some potential for pre-election litigation aimed at exasperating, with legitimate concerns for election integrity, the withdrawal process for a presidential candidate.

GA, NV, and WI, have specific procedures for withdrawal of a presidential nominee with differing degrees of applicability and timelines. WI does not allow withdrawal for any reason besides death.

Important caveats include the timeline and triggering events.  For example, some states allow withdrawal before the 74th day before an election, and failure to adhere to these timelines can result in the candidate’s name remaining on the ballot (which provides its own corollary of post-election litigation).  Likewise, the rationale for withdrawal (death, medical, or other) can be outcome determinative.  Some states, like South Carolina, do not allow withdrawal for political reasons.

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A nasty legal fight in Georgia, Nevada, and Wisconsin, dragging in three federal circuit courts and the Supreme Court, would divert DNC attention and money away from a flailing Biden campaign. The strategy would not be without risk, but causing confusion on the Democrat ticket in three battleground states could be worth it. It is also a Hail Mary strategy. Thirty-one states allow the national parties to replace candidates after the national convention. Some, like Texas, allow replacement up until the state's electors meet.

(2) to the nominating party's presidential elector candidates for an original nominee who withdraws, dies, or is declared ineligible after the 74th day before presidential election day if the party's state chair delivers certification of the replacement nominee's name, signed by the state chair, to the secretary of state not later than 2 p.m. on the Monday after the second Wednesday in December of a presidential election year.

Ultimately, we have to expect that whoever the Democrats nominate, be it Biden or a replacement, will be allowed on the ballot, or, failing that, the presidential electors chosen during the election will vote for the replacement Democrat. That said, there doesn't seem to be much downside in making the Democrats pay the price for nominating someone who was only viable because the Democrat establishment and the media hid his true decrepitude from the public.

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