GOP mulls shaky legal action over Biden-Harris swap
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Vice President Kamala Harris makes remarks before a moderated conversation. Photo: Chris duMond/Getty Images
Republicans have yet to follow through on their threats to take Democrats to court over Vice President Kamala Harris becoming the new presumptive presidential nominee after President Biden's last-minute withdrawal.
Why it matters: The GOP is trying to peg Democrats as a "threat to Democracy" for replacing their nominee after primary voters had their say. But it's unlikely legal action would get very far.
- "We have been preparing for this moment for months," the Heritage Foundation's Oversight Project posted on X on Sunday. "No more 'make it up as you go' elections Stay tuned..."
Reality check: Any legal path would be tricky to begin with — and made even more difficult by Democrats' plans to officially nominate Harris by August 7th, as Axios has reported.
- "There's nothing to to those threats," Ben Ginsberg, an attorney who has long represented Republicans, told Axios. "A convention naming a candidate who then gets ballot placement in every state is the normal course of business."
What they're saying: Speaker Mike Johnson told ABC News on Sunday that he thinks it would be "unlawful in accordance to some of these state rules, for a handful of people to go in the backroom and switch it out because they're — they don't like the candidate any longer."
- He told CNN, "I think they have got legal hurdles in some of these states, and it'll be litigated, I would expect, on the ground there, and they will have to sort through all that. They have got a real problem."
- Heritage, an influential conservative group stocked with former Trump officials that's also behind Project 2025, has also been looking into ways to bring legal challenges.
Between the lines: Other legal experts say any challenge would be shaky at best, especially since the change came before the Democratic convention.
- Biden was "not the official nominee—nobody is, until there's a vote. So Biden need not be replaced, because he was never the official candidate," legal scholar Rick Hasen wrote in an op-ed on Monday.
- "There is a zero point zero, zero, zero percent chance that Mike Johnson and his fever dream of somehow there being legal action to prevent Kamala Harris... to keep [her] off the ballot, there is no chance that will happen," top Democratic attorney Marc Elias said on Democracy Watch, a Youtube series hosted by Brian Tyler Cohen.
The bottom line: Hasen noted that Democrats "would be smart to still do that virtual roll call by Aug. 7" to avoid any potential litigation in some states related to technical arguments around ballot access timing.
Editor's note: This article has been corrected to note that Elias' comments were made to Brian Tyler Cohen on Youtube, not MSNBC.
