DNC Could Lawfully Replace Biden as Democratic Nominee, Says Legal Expert

As President Joe Biden’s inner circle coalesces around him following last week’s calamitous debate performance, Democratic commentators are continuing to call for the president to step aside and let another candidate come forward to represent the party with the November election looming in just four months. As rumors swirl about possible replacements, many are questioning whether another candidate can lawfully become the Democratic presidential nominee in light of the fact that Biden has already captured more than enough primary delegates to secure the nomination.

Meanwhile, The Washington Post reported Monday that leaders within the Democratic Party intend to head off the controversy by formally nominating Biden weeks before the Democratic National Convention (DNC) in Chicago next month. “Democratic Party leaders are pushing ahead with plans to formally nominate Biden in a virtual roll call Aug. 5, two weeks before their convention” on August 19-22, the Post stated.

Still, with influential forces within the Democratic Party like The New York Times editorial board calling for Biden to step aside, the possibility of the commander-in-chief being replaced on the presidential ticket does not appear far-fetched. On Monday, Phill Kline, an associate professor of law at Liberty University School of Law, joined “Washington Watch” to break down the legitimacy of this possible scenario.

“Yes, they can,” Kline stated when asked by former Congressman and guest host Jody Hice if the Democratic Party could legally replace Biden on the ballot. “The Democratic Party rules allow for their delegates to vote based on their conscience at the Democratic convention. That rule was changed in 1982 to allow them to do so, so they’re not strictly beholden to President Biden and his nomination. They can change it. Most likely, if Mr. Biden is to be replaced, it would involve a withdrawal of his candidacy, which would free those delegates naturally, and they could select somebody to replace him. If he withdraws after the convention and after he receives the nomination, the Democratic rules allow the DNC, in consultation with Democratic governors and Congress, to replace him as the Democratic nominee, so they are capable of doing it. The rules allow it to happen.”

Kline continued, “It’s a difficult process because the Democratic Party has some factionalism built into their superdelegate numbers at their convention. So these interest groups have specific and higher authority to impact who might replace Biden on the ticket. And, of course, they have the natural presumptive nominee in Vice President Harris that many of the Democrat delegates do not want to support as an alternative. So it’s messy, but it can be done legally.”

Kline, who formerly served as attorney general of Kansas, went on to detail some state efforts to change primary rules.

“In the past, almost all states have allowed the parties to determine the method to select their nominees,” he observed. “Now, interestingly, the Democrats have been fighting to change state law so that that party rule is not available to them. For example, here in Virginia, the Democrats have successfully changed the law to not allow closed primaries … to prevent others from participating. So there is some effort to change this. But right now in America, generally, the party gets to select its nominee, and these delegates are selected based on a pledge to support Mr. Biden. … [P]arty rules now say they can vote their conscience so that even though they made the pledge to Biden, if their conscience somehow dictates they should vote otherwise, they can, even without a formal release.”

However, as Kline further pointed out, the campaign money raised by Biden cannot be reassigned to another candidate. “I think President Biden is sitting on [$264] million, and those funds can’t be transferred to any other candidate but the vice president, and otherwise they go to a super PAC or a charity [or] a nonprofit. And there are many, unfortunately, leftist partisan nonprofits that could accept these monies and impact the election. So it is [a] messy [situation] and it’s going to be fascinating to watch.”

Democratic strategists like James Carville have floated a number of names to potentially replace Biden as the presidential nominee, including California Governor Gavin Newsom, Michigan Governor Gretchen Whitmer, former New Orleans mayor and Biden re-election campaign co-chairman Mitch Landrieu, and Maryland Governor Wes Moore.

Other names put forward include former First Lady Michelle Obama, Transportation Secretary Pete Buttigieg, Pennsylvania Governor Josh Shapiro, Colorado Governor Jared Polis, Georgia Senator Raphael Warnock, Minnesota Senator Amy Klobuchar, and Kentucky Governor Andy Beshear.

AUTHOR

Dan Hart

Dan Hart is senior editor at The Washington Stand.

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EDITORS NOTE: This Washington Stand column is republished with permission. All rights reserved. ©2024 Family Research Council.


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