Election-law expert James Gardner says the Republican legal efforts are groundless — but they just might work.
Even before President Joe Biden withdrew from the 2024 race, Republican leaders were signaling a legal campaign to block him from doing so. “Every state has its own system, and in some of these, it’s not possible to simply just switch out a candidate,” House Speaker Mike Johnson said on Sunday morning, just hours ahead of Biden’s big news. But could legal efforts to block Democrats from swapping their candidate actually work? To gauge those chances, I spoke with University at Buffalo School of Law professor and election-law expert James Gardner, who explained why the GOP’s strategy is a fool’s errand — and why it may be dangerous anyway.
Is there any truth to Mike Johnson’s statement about not being able to switch out candidates?
I don’t know the law of all 50 states, but if you think of this from the point of view of what these bodies of law are trying to accomplish, what the Speaker’s saying makes no sense whatsoever.
First of all, Biden has not been nominated by the Democratic Party. And there’s no requirement that a state can impose on a national political party that it nominate only candidates who ran in the primary. The reason for that is obvious, and we have an example of it: People can withdraw, they can die, they can become incompetent. The convention can decide that they’re not the candidate the party wants to nominate. I mean, the idea is kind of ridiculous — the idea being that Donald Trump could run uncontested. That’s what they’re hoping for. That can’t happen. Has there ever been an uncontested presidential candidate? No.
If the Republican Party sues to block Biden from stepping down in certain states, does it have a case?
The Republicans have a track history here, and the track history is filing endless, frivolous, losing litigation. And that is the pattern they’re threatening to replicate.
Filing these lawsuits may be just for talking points. But it also may be that Republicans have been playing a very long game here, and that game involves essentially capturing the federal judiciary. I think maybe they’re hoping they’ll get lucky and get a judge they handpicked who will ignore the law.
We’re roughly a hundred days from the election. Is that a short enough time frame for Republicans to file a lawsuit, get lucky with a judge, and withstand an appeal?
I suppose it could be. I mean, there are examples we already have. The dismissal of the documents suit against Trump is an example of a handpicked Trump appointee doing what she was appointed to do. And if this reaches the Supreme Court, honestly, all bets are off. That is a court that is not impartial, not independent. But I think even the Supreme Court as it’s currently constituted might balk.
I always think it’s important in talking about stuff like this to keep the big picture in mind, which is that the Trump wing of the Republican Party has basically abandoned its commitment to democracy. And so whatever tools it can pick up to beat the system into submission are tools it will deploy.
Is LBJ’s decision not to run for reelection a good precedent in the context of this threat?
It doesn’t provide much precedence, actually. Both parties substantially changed their rules between the 1968 and 1972 presidential elections to give much more weight to primaries. In ’68, Hubert Humphrey, who was the Democratic nominee, didn’t run in any primaries; you didn’t have to back then. And now the rules allow the voters to have the rank-and-file members have more of a say in determining the candidate. But if the candidate backed by the rank-and-file voters in primary season doesn’t make it to the end, the party has to choose someone else. And it’s up to the party to decide whom it wants to nominate as its candidate.
This conversation has been edited for length and clarity.
