Unprecedented events will NOT derail the electoral process.
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From the Desk of Trevor Potter
Dear John,
There’s an old saying that’s been on my mind lately: “May you live in interesting times.” I’m sure many of us are reeling from the barrage of recent election-related events ranging from tragic to historic.
Within the space of just the last few weeks, we’ve seen a deadly shooting at a presidential campaign rally, the incumbent president ending his re-election bid and a lightning-fast coalescing around a trailblazing new candidate to take his place. This is nothing to say of events during the last few months including rulings by the U.S. Supreme Court ([link removed]) on the 14th Amendment’s provision banning “insurrectionists” from holding office and presidential immunity. Then there’s the first-ever felony conviction of a former U.S. president and active presidential candidate.
The speed and dimensions of these events are hard to absorb. Mass shootings have become all too common in our nation, but the most recent instance of a shooting targeting a president or presidential candidate was over forty years ago — the shot that struck Ronald Reagan in 1981. The last incumbent president to withdraw from a re-election campaign was fifty-six years ago — Lyndon Johnson in March of 1968.
The good news is, so far, our democracy is faring well under the pressure of these incredibly consequential events.
There is a bipartisan effort in Congress to hold the U.S. Secret Service accountable for what the now-resigned head of the agency ([link removed]) admitted was, “the most significant operational failure at the Secret Service in decades.” The notion of using violence to produce a political outcome is totally at odds with the purpose of our political process. In a democracy, campaigns and elections are meant to provide a peaceful avenue for settling our differences, with voters having the final say on who represents them in government via the ballot box.
Regarding President Biden’s historic decision, the timing left room for his party to select a new nominee according to rules and procedures already in place. So, while this event is incredibly unusual, it does not present a legal crisis of any kind.
The laws around what happens to campaign funds and how the new Democratic ticket will gain access to state ballots are also clear, but they require some explanation for folks who don’t spend their days dealing with these sorts of issues. The demand for explanation has kept CLC’s staff of experts busy in recent weeks, providing context to national news outlets like The Washington Post ([link removed]) and The Wall Street Journal ([link removed]) , and regional publications like The Carolina Journal ([link removed]) and the Austin American-Statesman ([link removed]) . What follows are some of the top questions I have been hearing.
What happens to the Biden campaign funds?
Because President Biden and Vice President Kamala Harris shared an authorized campaign committee, she maintains access to all funds raised by that committee. Federal regulations allow a vice-presidential candidate to share a principal campaign committee, depository account and reporting schedule with a candidate for president. In a manner of speaking, Harris’ name is “on the deed,” giving her legal access to the funds. It’s worth noting that this arrangement is not allowed for any other type of federal candidate.
One formal change that has no impact on the distribution of funds is the renaming of the committee the “Harris for President Committee” following the announcement by President Biden and the filing of paperwork with the Federal Election Commission (FEC) by the committee treasurer.
Despite these facts, the Trump campaign has filed a complaint ([link removed]) with the FEC seeking to cut off access to the funds raised while Biden was at the top of the ticket. I do not expect this challenge to make any headway. Campaign finance experts here at CLC and others ([link removed]) seem to agree.
How can Vice President Harris get her name on state ballots, instead of President Biden’s?
The short answer is that this question is moot. It presumes that President Biden’s name has already been placed on state ballots, but that is not the case. According to the law and Democratic party rules, the nomination does not become official until after a vote by party delegates, and certification of the nominee to the states — neither of which has happened. Under party rules the delegates who were pledged to Biden are now free to vote for other candidates, and a clear majority have announced they will vote for Harris, so her name will be sent to the states after she is nominated.
Assuming the Democratic Party formally chooses a presidential nominee before or during the Democratic National Convention, there are no legal barriers to that candidate being on the general election ballot nationwide. The deadline in every state to name presidential candidates is after the nominating convention.
As it stands today, the Democratic Party intends to hold a virtual roll call vote ([link removed]) during which delegates will formally declare their choice for presidential nominee, with the goal of completing the process by August 7. This is an apparent attempt to avoid any legal challenges related to the state of Ohio, where the deadline for getting a presidential nominee onto the ballot had, until recently, been August 7.
What’s on the horizon?
Understandably, the nation’s attention has been focused on the events I have described, but there are under-the-radar threats to our democracy that can have a big impact, especially in a close election. During these “interesting times,” another saying comes to mind: “Eternal vigilance is the price of liberty.”
We must remain vigilant against conspiracy theorists disenfranchising voters through frivolous mass voter registration challenges ([link removed]) , threats of violence against election workers ([link removed]) , harsh laws making it difficult to register new voters ([link removed]) and lawsuits aimed at creating unnecessary barriers to voting by mail ([link removed]) . Then there are perennial threats to our democracy, such as the deluge of anonymous, unlimited election
spending ([link removed]) drowning out the voices of ordinary voters and the continued scourge of partisan gerrymandering ([link removed]) making it very difficult for millions of voters to elect representatives of their choice.
These are the sorts of problems we must continue to address as the dust settles around the selection of presidential nominees. There are solutions to all these problems, and CLC is committed to pursuing those solutions in partnership with pro-democracy advocates and voters across the nation.
Sincerely,
Trevor Potter
President, Campaign Legal Center
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