Washington state, along with Ohio and Alabama, has recently indicated that President Joe Biden may not appear on their general election ballots. This is due to conflicts between the dates of the Democratic National Committee’s nominating convention and the state ballot deadlines. However, Washington state has already suggested a potential solution to ensure that the Democratic candidate remains eligible for the election.
In a letter obtained by ABC News, the director of elections at the office of Washington’s Secretary of State warned DNC Chair Jamie Harrison that the state’s ballot certification deadline is on August 20th, which is the day after the DNC convenes in Chicago to nominate their presidential and vice presidential selections.
According to the letter, Stuart Holmes, who served as the Director of Elections during Democratic Secretary Steve Hobbs’ tenure, has indicated that their office would be willing to make an exception for the party. They would accept a provisional certification of nomination from them, as long as it is submitted by August 20th.
Ohio and Alabama’s Republican Secretaries of State have recently stated their intention to enforce state election codes in a manner that experts believe is unprecedented and potentially partisan in nature.
Ohio Secretary of State Frank LaRose and Alabama Secretary of State Wes Allen have informed Democrats about similar conflicts between their states’ deadlines and the timing of the DNC convention in mid-August. They have cautioned that Biden’s nomination in Chicago is too late for him to be included on their general election ballots.
In a recent letter, Ohio Secretary of State Frank LaRose expressed concern that the Democratic National Convention, scheduled to commence on August 19, would not meet the state’s ballot certification deadline of August 7. Similarly, Alabama Secretary of State John Merrill issued a warning to Democrats, stating that their August 15 cutoff would precede the convention.
States have dealt with the issue of a late August convention causing scheduling conflicts in the past. This is not a new obstacle for both parties. In the past, states have found ways to avoid banning major party candidates from their ballots. One option is to easily grant provisional ballot access, as Washington is suggesting. Another option is to work through their legislatures to allow certification extensions.
According to experts, red-state officials are strategically using this issue to their advantage against Joe Biden and Vice President Kamala Harris, the presumed Democratic nominees. Interestingly, these same officials made exceptions in the past for former President Donald Trump and former Vice President Mike Pence when the Republican National Convention (RNC) occurred too late for their certification.
According to Elaine Kamarck, a senior fellow at the Brookings Institution and a member of the Democratic National Committee, the current situation is unprecedented. She emphasized that this is something that has never been encountered before, and it is not a matter that the GOP Secretaries of State have simply concocted.
Richard Winger, an expert in ballot access and a political analyst, concurred with this sentiment.
According to the individual interviewed by ABC News, the existence of these deadlines is not based on partisan reasons, although there may be a partisan aspect to them this year.
According to Richard Winger, an expert on ballot access laws, it is rare for a state to exclude a major party presidential candidate from the ballot. In fact, the last time this happened was in 1964, and it was not due to missed deadlines. Winger emphasizes that since then, there has not been a single instance where a major party candidate was unable to appear on the ballot in any state.
Do Democrats have a strategy to ensure Biden’s presence on the ballot?
The Biden campaign, along with Democratic officials, is currently exploring strategies to guarantee President Biden’s presence on the ballot for Ohio and Alabama voters.
Biden’s reelection campaign has responded to the news from Ohio and Alabama by asserting that “Joe Biden will be on the ballot in all 50 states.” Their strategy involves several steps. First, they plan to achieve provisional certification, which entails formally notifying states before the convention that they anticipate Biden to be the nominee. Second, they aim to modify the state’s election filing deadlines by working with the GOP-controlled legislatures. Third, they intend to resort to litigation in court if necessary. Finally, they plan to virtually nominate the Biden-Harris ticket in advance of their in-person convention.
Historically, in Ohio, Alabama, and several other states, candidates from major parties have been given provisional ballot access certification if they were unable to meet the state’s election code certification deadlines due to conflicting convention dates.
In preparation for the 2020 general election, the states of Oklahoma, Illinois, Washington, and Montana acknowledged the provisional certifications presented by the Democratic National Committee (DNC) and the Republican National Committee (RNC). Additionally, Alabama also accepted a provisional certification from the Republicans, ensuring the qualification of both Trump and Pence.
In 2020, the Alabama legislature rescheduled their certification deadline for that specific election to August 20, 2020. However, this deadline still fell before the conclusion of the Republican convention, which ended a week later. As a result, the RNC submitted a provisional certification, which the state duly accepted.
The Biden campaign in Ohio has confirmed that they are currently engaging in discussions with the Secretary’s office regarding the next steps for provisional certification.
The Ohio Secretary of State recently received a letter from Democratic lawyer Donald McTigue, which was reviewed by ABC News. In the letter, McTigue stated that the Democratic party plans to provisionally certify Joe Biden and Kamala Harris in Ohio by the August 7 deadline. The final confirmation of the election results will take place at the convention.
Ben Kindel, a spokesperson for LaRose’s office, stated that their legal counsel is currently reviewing the letter.
Attorney Barry Ragsdale, representing the Biden campaign in Alabama, sent a letter to the general counsel for the Alabama Secretary of State’s office on Wednesday. In the letter, obtained by ABC News, Ragsdale proposed that the Democratic National Committee (DNC) provisionally certify Joe Biden and Kamala Harris as party nominees by the state’s August 15 deadline. The letter suggested that the results could be later confirmed at the convention.
In a letter written by Ragsdale, he explains that this proposal effectively addresses the potential constitutional issues that may arise if the interpretation of Ala. Code § 17-14-31(b)’s certification deadline is used to exclude President Biden and Vice President Harris from the Alabama general election ballot.
According to him, it would give the opportunity for numerous individuals in Alabama who are in favor of President Biden and Vice President Harris to fully exercise their essential constitutional right to actively engage in the presidential election.
Allen responded to the letter by stating firmly to ABC News that he would not make any exceptions or provide provisional certifications.
If provisional ballot certification cannot be achieved, the Biden official stated that their strategy would change to focus on the state legislatures. This approach has proven effective in states like Alabama and Ohio. In Ohio, for instance, laws were enacted prior to the 2012 and 2020 elections to bypass the state’s 90-day deadline for nomination. These laws benefited both Republicans and Democrats by allowing them to ensure their candidates’ inclusion on the ballot. In 2020, both parties held conventions ahead of the deadline, taking advantage of this legislative provision.
In their first communication with Democrats, Secretary LaRose’s legal team presented two choices: either advance the date of the DNC convention or, by May 9, have the state’s GOP-led legislature enact a law to permit an extension.
After Alabama issued a warning to Biden, Democratic state senator Merika Coleman took action by introducing a bill. This bill aims to extend the state’s deadline to August 23, which conveniently falls after the DNC Convention.
The Biden campaign asserts that they have a “strong case” and considers pursuing litigation in court as one of their final options.
In a letter addressed to Alabama leadership, Biden’s counsel expressed their belief that enforcing the strict eighty-two-day deadline would greatly limit President Biden and Vice President Harris’s ability to access the ballot. They argued that the state’s decision to bar the presumptive nominees was not only unjust, but also unconstitutional.
In a recent Supreme Court decision on Trump v. Anderson, the court ruled that states cannot prevent candidates from federal offices, particularly the Presidency, from appearing on the ballot. This ruling may have implications for future court cases, as it establishes the precedent that states do not have the power to bar such candidates from participating in elections.
The DNC would take the final step of conducting a virtual vote to officially nominate the Biden-Harris ticket prior to their August convention.
According to an official from the Biden campaign who spoke to ABC News, if the provisional certification is not conducted for any reason, the next step would be to involve the legislature. In the event that the legislature does not cooperate and litigation becomes necessary, there is a strong case for legal action. However, if litigation proves unsuccessful, the DNC has a procedure in place that can effectively nullify the issue.
They added, “In conclusion, we will appear on the ballot in both of these states.”
