Our incumbent president swore he wouldn’t drop out of the race, save for a “medical condition.” Maybe his recent COVID counts, because after years Biden his time on the re-election trail, Uncle Joe walked it back. And he sent shockwaves through the country by making the rare choice to no longer seek a second term.
The unprecedented situation has left many people wondering what happens in cases like this. What happens with Biden’s delegates? What about his campaign funds? Do Democrats still need to hold a convention? Are there potential legal challenges to the switch?
Even though something like this hasn’t happened in recent political memory, we’re not in uncharted waters. Party rules, state and federal statutes, and campaign finance laws clearly guide what to do. We’ll walk you through some of the significant questions politically-savvy people will likely have and what the established procedures tell us about them.
What Will Dem Nominations Look Like?
You probably already know that right after announcing his resignation from the race, Biden formally endorsed his current vice president for the nomination instead. But though Joe is now backing Kamala Harris, it’s not actually up to him. When someone drops out of the race (before or after they are officially nominated), they do not have the power to choose their replacement.
But, the point is somewhat moot because Harris recently obtained enough delegates from the Democratic Party the old-fashioned way to secure the nomination.
Who Else Could Run?
To run for the nomination, you have to be a Democrat, at least for all practical purposes. There have been instances where someone who wasn’t officially affiliated with the Democratic party ran for the primary. Most people will point to Bernie Sanders in the 2016 and 2020 run-ups. But though Sanders was registered as “Independent” for his Senate campaign, even he changed his affiliation to Democrat in the presidential run-up.
Current DNC rules state that all candidates must be “bona fide” Democrats as evidenced by their record of public service, statements, and accomplishments. They also have to pledge in writing to the DNC chairman that they are a Democrat and that they will run and serve as a member of the Democratic Party.
Will Anyone Run Against Harris?
So far, Harris is the only candidate that is clearly seeking the Democratic nomination. Senator Joe Manchin of West Virginia, Governor Gavin Newsom of California, Governor J.B. Pritzker of Illinois, Governor Gretchen Whitmer of Michigan, Senator Amy Klobuchar of Minnesota, Transportation Secretary Pete Buttigieg, Governor Josh Shapiro of Pennsylvania – just to name a few – were considered possible contenders. Several of these may also be contenders for the vice presidential nominee. Many of them have already given Harris their endorsement.
This all means that while Harris quickly secured the nomination, someone else could have run against her. But they didn't exactly have a lot of time; it doesn’t take a lot to qualify for a nomination, but you do need a petition signed by 300 delegates, with no more than 50 per state. Since no one fell out of the coconut tree, it’s less likely every day that someone will step up to run against Kamala.
What Happens With Biden’s Delegates?
In the Democratic Party, delegates aren’t officially bound to one candidate. This is true even after the results of the Democratic primary come in. Delegates are free to vote for whoever they want to be their party’s nominee.
Under the rules of the current Democratic convention, delegates are to, "in all good conscience, reflect the sentiments of those who elected them. This wasn’t always the case. At the 1980 Democratic convention, delegates were not able to vote their “consciences,” but were instead bound to certain candidates on the first ballot. There was a lot of talk of “freeing the delegates.”
But the language of the rules has since been changed to make delegates unbound. As such, there is no need to “free” or “release” delegates. This means that Biden doesn’t have to do anything to give Harris control of his delegates; they weren’t bound to him before and they aren’t now.
Of course, Biden’s endorsement of Harris is still likely to hold a lot of sway, since Biden’s campaign helped to pick the delegates, who were presumed to be loyal to him. Nevertheless, even though it’s expected that Biden’s delegates will largely coalesce around Harris, they don’t have to. She still has to win the old-fashioned way.
We’ll note that the rules aren’t the same in the case of the Republican convention, which may be a source of confusion. The Republicans have different rules, and Republican delegates are bound to a certain nominee based on number of roll call votes. Delegates cannot vote in a way that violates the binding rules. These rules are set by the party, not law, so having different approaches is perfectly fine.
What Happens With Biden’s Campaign Money?
We’ll note that we’ve never before had the situation in which the shoo-in candidate drops out right before the primary like Biden just did, so to some degree, we’re going off of some expert speculation. But in theory, there has been a valid and legal transfer of the campaign money from Biden to Harris.
The campaign filed forms with the FEC scrubbing Biden's name from registration documents and changing the official name of the presidential campaign account to "Harris for President" from "Biden for President."
Biden’s campaign for president changed its authorized candidate to Harris and filed the matching paperwork to transition the candidates. Forms that were registered with Biden’s name on the account with the Federal Election Commission were changed to Harris. With that step, the law is such that Harris now has control of the campaign’s bank account — meaning all of the money Biden was previously using to run himself. At the end of last month, that was about $95 million.
Will There Be Challenges to the Funds Transfer?
Harris is already likely in the clear to use that money for her own campaign. Some expect Republicans to challenge the transfer of control, arguing that the money was raised under Biden’s name while he was the only candidate. Although there could be challenges to the validity of the funds takeover, most experts believe that Harris’ claim to the money is secure.
And what about the (increasingly unlikely) scenario in which a second candidate slips in at the last minute with a nomination and runs against Harris? Would they be entitled to any of the money? Due to campaign finance rules that limit the size of contributions, this candidate would only be able to accept a small fraction of the money in the account – a few thousand dollars.
The only way in which another candidate could get any substantial money is if Harris decided to refund the donations back to the donors and they contributed again to that candidate, or Harris transferred it to the Democratic Party which then spent that money for the challenging candidate’s campaign. If that sounds too complicated to be likely, it probably is.
The Upshot?
After reading all of this, you’re probably thinking that Kamala Harris is best positioned to succeed in the primary, and that is certainly what it’s looking like from the legal logistics. She does, after all, have (most likely legal) access to all of Biden’s previous campaign money. And with the law being what it is, she can keep most of it, even if someone runs against her – which, legally, they don’t have much time to do.
Related Resources:
- What Are the Different Types of Primary Elections? (FindLaw's Learn About the Law)
- Voting Law's and Resources from FindLaw.com
- How Does the Electoral College Work? (FindLaw's Learn About the Law)
