Biden was not the nominee, so replacing him is not illegal

“Each state has its own system, and in some of these states, it’s not possible to simply replace a candidate who has been elected through the democratic, small D, democratic process for such a long period of time,” Johnson said on ABC News’ “This Week.”

“Fourteen million Democrats voted to make Joe Biden the nominee,” Johnson continued. “So it would be wrong and, I think, illegal under some of these state rules for a handful of people to go into the back room and switch it because they — they don’t like the nominee anymore.”

In June — before the presidential debate that accelerated calls for Biden to withdraw from consideration — the Heritage Foundation went so far as to draft a memo filing a lawsuit against Biden, who was replaced. It argued, for example, that Wisconsin “does not allow withdrawal (of the ballot) for any reason other than death.”

But as election law expert Rick Hasen noted this month, there’s a big asterisk here — one that applies to any effort to suggest that Biden is the party’s committed presidential nominee.

Biden is not the Democratic candidate at all, in Wisconsin or anywhere else. He is not being removed from the ballot because he is not on the ballot. The party has no nominee until the delegates vote at the Democratic Party convention in August, and now they will not vote for Biden.

Remember, the party decides how to handle its nomination. If the Democratic Party wanted to make the primaries advisory only in the future, it could do so. It would be a bad idea, but it could be done. As recently as 2008, the party’s nominee could be (and nearly was) determined by so-called “superdelegates,” convention attendees who were allowed to vote for any candidate they wanted. Even now, the party could (and may) make rule changes that would change the process for identifying who is on the ballot.

Joe Biden, as any routine article from a traditional media outlet will remind you, is the leader of the party. assuming nominee, just as Trump was the presumptive Republican nominee until last Thursday. Biden, like Trump, has a majority of delegates who committed to supporting him at the convention. That Republican majority voted for Trump when the time came. Biden’s majority will not, so he will not be the nominee after all.

Johnson’s argument is that this is somehow illegal because it goes against the will of the electorate. (This is an ironic argument to support Donald Trump’s position, given how he did in the 2016 election, but never mind.) And while it’s true that Biden won the most votes in the Democratic primary process, it’s not like he triumphed over a crowded field of well-positioned candidates. Major candidates chose not to challenge him, in part because no one wanted to be blamed for helping Trump return to the White House.

Democrats, too, weren’t enthusiastic about Biden. In April, after much of the primaries had concluded and well before his disastrous June 27 debate, the Pew Research Center found that more than 6 in 10 Biden supporters wanted to see him off the ballot. In several polls, a majority of those who planned to vote for Biden said they were doing so primarily because they wanted Trump to lose. It’s safe to say that their loyalty will easily switch to another candidate — whichever candidate (Vice President Harris, at this point, is expected to win a majority of the delegate votes.

There are a couple of motives at play here for Republicans. One is to paint Biden’s replacement as the product of an anti-democratic process, thereby obscuring criticism of Trump’s hostility to American democracy. Another is to make the transition as painful as possible, by launching lawsuits and rhetoric that will keep Democrats from consolidating for as long as possible.

It also seems safe to assume that the GOP is aware that a long-term legal challenge that reaches the Supreme Court could yield a victory. Many legal experts, for example, assumed that the court would quickly reject Trump’s request for broad immunity from criminal prosecution. Then it got it.

A challenge to determining the Democratic Party nominee, focused on a shift that occurs before there is is A nominee would have to clear an even higher legal threshold. Republicans would argue that anyone who received the most votes in the other party’s nominating process should appear on the general election ballot — even if there were delegates designated by that election. Delegates who have no power at the convention and whose actions are bound by the malleable rules the party itself sets.

It’s a silly and unserious argument. But when you look at a candidate who Republicans clearly see as a greater threat to Trump, it’s not hard to see why they’d make it.