Donald Trump and Joe Biden are set to make history yet again by squaring off in the earliest general election season debate in history on June 27. This matchup will force the opponents to face each other before they have even clinched their party’s official nominations at their respective conventions. The reason is obvious: Democrats will have plenty of time to replace Biden as the nominee when he inevitably stumbles through the first debate.
People like pollster Nate Silver are starting to call for Biden to step aside, despite many commentators still saying that’s an impossibility. However, both Democratic National Committee (DNC) rules and state laws have a plain and simple path to oust Biden.
State and territory delegates select the presidential nominee for each party, with a certain number of delegates allotted per state. Under DNC rules, there are two types: (1) pledged and (2) unpledged, or “automatic,” delegates. Contrary to what their titles suggest, the classifications matter little. Unpledged delegates may vote for whomever at the convention, but pledged delegates are free to do the same under DNC’s Call for the 2024 Convention, Article IX.F.3.d, despite the outcome of state primary elections. (“All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.”). Contrary to oft-repeated dogma, no DNC rule mandates that delegates are bound to vote for a particular candidate.
Before the Convention
The Democrat Party would typically formalize its presidential nominee at its convention, although due to a conflict with Ohio ballot deadlines, the party announced plans to virtually nominate Biden. (No date has been set for the “virtual roll call,” but Ohio’s deadline is Aug. 7, more than a month after the debate.)
In what typically happens at the convention, the permanent chair receives nominating petitions and holds a vote once all are received. Nomination requests for a candidate are made in writing and can be submitted up to the day before the vote. To become a candidate at the convention, one only must present petitions signed by at least 300 delegates, no more than 50 from any one state. With an estimated 4,672 delegates, it takes less than 7 percent of those to sign a candidate’s petition to be certified.
Any individual who submits a complete nominating petition at the convention can receive delegates and become the nominee, even if that person was never voted on by a single member of the general public or on any state primary ballot.
During the Nomination: Not Picking Biden
Even if Biden’s supporters put forward his name for candidacy, the Democrat machine can still handpick the nominee. On the first round of voting, only pledged delegates are permitted to vote, unless a candidate has been certified by the DNC secretary to have “obtained a number of pledged delegates equal to a majority of all pledged and automatic delegates to the Convention,” in which case unpledged delegates can also vote on the first ballot. Biden has obtained the requisite number of delegates, which means all delegates can vote in the first round.
If Biden receives a simple majority, he officially becomes the nominee. Yet, as previously mentioned, no rule mandates that delegates must vote for Biden, even if “pledged,” and since all delegates could vote in the first round, there is nothing preventing another candidate from being chosen via a simple majority too. Since automatic delegates are comprised of the Democratic Party elite, nothing is preventing them from choosing a candidate more to their liking than Biden.
After the Nom Before State Ballots Are Printed
If, at the conclusion of the nomination process, Biden is the nominee, there are still many opportunities post-convention for withdrawal, whether he is ousted, withdraws, or is incapacitated after the convention but before all state ballots are finalized. Only one vague DNC rule governs this process, and it also allows the party elite to decide who runs:
In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the National Convention, the National Chairperson of the [DNC] shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the [DNC], which is authorized to fill the vacancy or vacancies.
There is no requirement that the vice presidential nominee must become the presidential nominee.
The rule is unclear: What does it mean by the terms “shall confer” or “disability”? Without further clarity, the rules would appear to give the DNC unilateral authority, besides the loose requirement of conferring with senior Democrat Party officials, to choose the nominee.
Instead, the only concrete requirement for any new nominee appears to be the constitutional requirements (i.e. a natural-born citizen at least 35 years of age who has lived in the U.S. for at least 14 years, and who is not a citizen of the same state as the vice presidential nominee). Once these basic qualifications have been met, all bets are off as to whom the party elite may select under these circumstances.
Without additional processes or mechanisms, DNC rules not only allow but would require the Democrats to convene certain members of the party to effectively overturn the outcome of the state primaries. It is the proverbial “smoke-filled room” of D.C. lore.
Under the scenario whereby the Democrat elite unilaterally select a nominee following the convention upon the candidate’s death, resignation, or disability, state ballot access laws then kick in to determine legally what happens within each state. Most states defer to the party, and provided that the state party tells the state’s election authority (such as a secretary of state or board of elections) of the nominee’s name before a state-prescribed cutoff date, the name on the ballot can be whomever the party selects, as state ballot access laws do not rely on the results of the convention itself.
States that do have a specified process typically require only an individual or body within the state party (i.e., state chair or an executive body) to be responsible for naming the nominee. As long as that designated individual tells the state government the name of the replacement nominee, the process is formalized in most states, and that nominee’s name is printed on ballots.
Closer to the Election: Biden Is Ousted, Withdraws, or Is Incapacitated
Once Biden’s name is printed on ballots — or after the second scheduled debate in September — it gets trickier for him to drop out and still have a Democratic nominee in every state. Many states (i.e., Florida, North Carolina, Pennsylvania, Texas, and Virginia), would count Biden votes as actually counting for a replacement, while others (i.e., Georgia and Illinois) would not count any ballots cast for Biden. Yet some (i.e., California and Nevada) would, in the situation of a Biden win in that state, treat the office of the presidency as vacant — meaning no candidate is entitled to the state’s electoral votes — and others (i.e., Wisconsin) do not seem to recognize candidate vacancies in any event other than a candidate’s death.
This is further complicated by some states’ electoral vote laws (i.e., Nevada, Georgia, and Illinois), which appear to restrict electoral votes for nominees replaced late in the process. Because of the lack of clarity and uniformity on naming a nominee successor, any Democrat nominee replaced late would face extensive litigation and utter chaos.
That’s precisely why the Democrats pushed for at least one early debate. They know Biden is a disastrous candidate and need to have a plausible reason to replace him, knowing their own rules make it mechanically straightforward to do so even after the first debate.