Legal experts say they're confident that lawsuits filed over the potential placement of Vice President Kamala Harris atop the Democratic ticket will fail — and said campaign finance lawsuits will wind up tangled up in legal battles that won't be settled until after the election.
President Joe Biden's announcement Sunday that he will no longer run for re-election in November set the political world in a tailspin.
Even before Biden's announcement, Republicans had already vowed to file lawsuits over such a move, which they argue subverts the democratic process and ballots cast by primary voters.
“I think in states where it can be contested, I expect that it will be, and they’ll have an interesting battle on their hands,” House Speaker Mike Johnson said on ABC News Sunday.
Johnson added: “I think they would run into some legal impediments in at least a few of these jurisdictions.”
And a June Heritage Foundation memo laid out a plan for "pre-election litigation" that could "try to block a presidential candidate from withdrawing."
Northwestern Law professor Michael Kang told Salon that Biden withdrawing from the race "at this point in the year is basically unprecedented, so some of the legal questions raised are untested."
Specifically — some Republicans and legal experts have raised questions about the legality of Harris taking over campaign finance funds. Republican FEC chairman Sean Cooksey on Sunday tweeted a campaign finance regulation that says contributions "should be either returned" to donors or "redesignated" if a candidate doesn't end up running.
But legal experts see little chance of any lawsuits going anywhere — and say that Republican critics lack legal or factual basis or standing for their complaints.
"I think this amounts (yet again) to a considerable amount of noise without any real prospect of legal consequence," UCLA Law professor Justin Levitt told Salon. "There will be political consequences, and messaging consequences, and those may well driving the filing of lawsuits. But there’s no way that the lawsuits actually stop VP Harris from getting the nomination or getting on the ballot, and next to no way that they stop her from using any of the funds already raised for Biden."
He said he expects lawsuits over the matter — in part because lawsuits filed chiefly for messaging or fundraising are common.
Paul Smith, a Georgetown Law professor and senior vice president at the Campaign Legal Center, said nothing bars the Democratic party from nominating Harris and getting her on all state ballots.
"Biden was never the formal nominee," Smith told Salon. "The Convention has yet to occur."
Smith said that means any lawsuit seeking to invalidate Harris' nomination or keep her from the ballot would "fail quickly on the merits."
"Standing probably would not be the main issue," Smith said.
Legal experts say lax Democratic party rules have always offered substantial flexibility for candidates who drop out.
"It doesn’t violate any laws for a political party to nominate a presidential candidate, and it turns out you’ve got to present a plausible claim that a law has been broken in order to win a lawsuit," Levitt said. "Not only are political parties supposed to nominate candidates for office, they’ve got First Amendment protection to do exactly that."
Levitt also pointed out that unlike with primaries for other officers, no voters within a state get to decide a presidential nomination unilaterally.
"Primary voters for presidential primaries are really just choosing delegates to a national convention," Levitt said. "The party sets the rules for those delegates. The Democratic Party has (for years now) said that its delegates are pledged, but not bound – they’re free to vote their conscience. Normally, that means voting for the candidate who wins the primary for any given state. But if that candidate dies, or drops out, they can vote for whomever they wish."
Kang said that internal party rules posed the main obstacle to replacing Biden if he didn't agree to step aside.
"Those would no longer restrict the delegates from nominating Harris now that Biden has agreed to step aside," Kang said.
Levitt says no part of those rules violates any law that Republicans, or anyone else, could sue over.
"But also, even if you assume there are voters who can show injury, injury by whom?" Levitt said. "And what’s the remedy? Voters have no right to force Biden to accept the nomination."
Levitt pointed out that all of the states' laws for who gets on the ballot for president as based on who gets the nomination at the convention.
"There are conceivable legal issues with a candidate dropping out after a convention," he said. "But before? Nope."
Florida State University Michael Morley said because Biden "has not yet been certified to any states as the Democratic Party's nominee, he does not need to be 'replaced' on any general election ballots."
"State laws and deadlines concerning 'replacement' of candidates are inapplicable here," he told Salon. "Moreover, the fact that President Biden happened to win a presidential preference contest — a primary or a caucus — in a particular state is irrelevant to whether he appears on the general election ballot there. There are any number of reasons why the candidate who wins a state's presidential preference primary might not go on to be that party's ultimate presidential nominee."
Morley said at the end of the day, there's no substantial basis for a court to prevent the Democratic Party from having someone other than Biden appear on the ballot as its presidential nominee.
Stetson University College of Law professor Ciara Torres-Spelliscy agreed, saying: "The Democratic Party has freedom of association rights under the First Amendment to choose their standard bearer. The Republicans being mad about the new turn of events of Kamala Harris being the likely nominee does not give them standing to sue."
Political and legal observers say that one reason that Biden endorsed Harris was likely to minimize any legal issues with transferring over campaign funds.
Loyola Law School professor Jessica Levinson told Salon that the "best reading of the Federal Election Campaign Act indicates that there are two people who can tap into the approximately $95 million raised by the Biden Harris campaign. One of them is named Joe Biden, and he is no longer a candidate. The other is named Kamala Harris, and she obviously is."
Smith said the Campaign Legal Center has come to the same conclusion.
"Our analysis is that Harris can immediately get complete access to money raised by the Biden/Harris team," Smith said. "The money was raised for both of them. Admittedly, there has never been a set of facts just like this, but we think the right answer is pretty clear."
Levinson said though critics may claim the move would be unprecedented — that doesn't mean its lawless, or that a FEC complaint or suit means a genuine legal dispute exists.
Biden's' campaign committee on Sunday submitted paperwork with the FEC to change its name to “Harris for President.”
Levitt said it's "likely entirely lawful" for the Biden-Harris committee to change its name and for Harris to use that funding.
"You’ve got prominent Democratic and Republican campaign finance experts saying the same thing," Levitt said.
Kang said in his view, Harris can keep the campaign finance money raised by the committee she and Biden registered without Republicans successfully blocking her.
"In the alternative, the committee could transfer the money to the Democratic Party or a Super PAC, but the subsequent use of the money would be limited," Kang said.
Torres-Spelliscy agreed that because Harris is on the ticket, she could presumably take over the Biden-Harris money without limit — as long as there are no debts outstanding.
She told Salon that the FEC allows candidate committees to transfer unlimited funds to a party committee or organization, which would have to report the infusion of cash.
Levitt said Republicans have "neuter[ed]" the FEC's enforcement capacity — meaning any complaint will likely take months or longer to resolve.
He said that means an unlikely consequence would "only amount to a fine eventually imposed well after the election."
"There’s no realistic prospect of anyone stopping the money from being used before that," Levitt said.
