President Joe Biden, after weeks of pressure, has withdrawn from his re-election campaign. In recent days, questions have also been raised about the legal practicalities of Democrats replacing Biden with another candidate, most likely Vice President Kamala Harris. Some have expressed fears that Republicans might attempt to block a Biden replacement from appearing on ballots in November. This is one thing Democrats don’t have to worry about.
America’s ballot access laws, the procedures for how candidates are placed on the ballot in each state, are notoriously difficult compared to other democracies’ laws.
One thing is clear: There is no credible basis for the claims that the Democratic Party’s candidate for president, whoever that may be, will be kicked off the ballot in any state.
Experts such as Richard Winger, the longtime publisher of Ballot Access News and the nation’s foremost authority on the topic, have long decried the arbitrarily difficult petition thresholds and discriminatory treatment of third-party and independent candidates. Major-party candidates also run afoul of the rules on occasion. Just this year, former President Donald Trump’s ballot access was imperiled under the 14th Amendment’s bar on insurrectionists before the Supreme Court ruled in his favor.
But one thing is clear: There is no credible basis for the claims that the Democratic Party’s candidate for president, whoever that may be, will be kicked off the ballot in any state. As things stand currently, no relevant deadlines have passed. The party remains perfectly free to choose its nominee however it wants, and to choose whomever it wants.
Much of the panic stems from claims by the Heritage Foundation (the same organization behind Project 2025) arguing that ambiguities in state election laws could provide an opportunity to challenge a Biden replacement. On the legal merits, these arguments are thin, bordering on specious. But more importantly, they are inapplicable for now. As it currently stands, state Democratic parties wouldn’t be replacing Biden at all, because he is not yet the party’s official nominee.
Zack Smith, a senior legal fellow at Heritage, has claimed that “in many states, including in several key states, the deadline for getting on the ballot has already passed.” This is simply untrue, and media outlets should fact-check this assertion rather than taking it at face value.
Winger, for good reason, calls much of the coverage about this threat “gullible.” As he notes, “there would be no legal problem in any state.” UCLA professor Rick Hasen, another widely respected election law expert, has also observed “the bottom line is that there is unlikely to be an election law impediment to replacing Biden.”
First, it’s worth taking a step back to understand how the Democratic and Republican nominees for president and vice president come to appear on state ballots.
In every state, both major parties are qualified for what is known as “automatic” presidential ballot access. In other words, their nominees do not need to gather petition signatures or clear any other hurdles to secure a spot on the general election ballot. Instead, the qualified political parties simply tell the state’s election authorities (in most states, the secretary of state) who its candidates are. This process is never completed prior to the formal nomination by the party’s national convention.
The Republican and Democratic parties are not required, and can not be required, to use the primaries at all.
With one potential caveat, no state currently requires major parties to certify their presidential ticket any earlier than Aug. 21. Biden is not filed to appear on the ballot in any state at the moment, because he has not yet been formally nominated.
The one complication arises in Ohio, which previously had an unusually early deadline of Aug. 7. At the insistence of Republican Gov. Mike DeWine, the state Legislature passed a law to accommodate this year’s later Democratic National Convention, scheduled to begin on Aug. 19. Ohio’s new law sets the deadline as Sept. 1. However, the Democratic National Committee remains skittish, noting the contradiction that Ohio’s new law does not actually come into effect until Sept. 1. For this reason, the party had planned to conduct a virtual roll call of convention delegates to formalize the nomination sometime prior to Aug. 7.
Even with this wrinkle in Ohio, there is no potential problem. All of the state laws to which Heritage’s commenters have pointed only concern the process for the party to replace one of its candidates later in the calendar, after having previously certified the Biden-Harris ticket.
Another concern that has been raised is that the party could be open to litigation for disregarding the results of the primary elections. However, this misunderstands the role of state-run primary elections in the presidential nomination process. The Republican and Democratic parties are not required, and can not be required, to use the primaries at all. The primaries are, in effect, a nonbinding straw poll run by state governments. It is only through the party’s internal rules, as a private organization, that primaries are used to allocate convention delegates among the candidates seeking the nomination.
We have already seen both parties decide to ignore state primaries in this election. Democrats did so in New Hampshire, which held its primary too early and out of turn according to the party’s newly adopted schedule. Republicans did the same in Nevada, spurning the state’s primary election in favor of a caucus administered by the party. This presents no legal problem because political parties, in deciding whom to nominate and how, are engaged in their own freedom of speech and association, fully protected by the First Amendment. The Supreme Court has firmly ruled state governments have no power to impose any requirements on how the party conventions function or whom they may choose to nominate.
With so much at stake in this year’s election, Democrats are understandably a bit panicked. There are a great many things to be worried about, with the unprecedented reality of an incumbent president dropping out of the race this late, amid serious concerns about his declining mental acuity and physical stamina. But with enough things on their plate to worry about, placing their party’s nominee on the ballot need not be one of them.