BRENDAN SMIALOWSKI
- Republicans may sue to stop Kamala Harris from taking Biden's campaign cash and place on the ballot.
- Such lawsuits are doomed at best — and at worst would be blatantly frivolous, legal experts told BI.
- They predicted that cases would be rejected immediately or drag out until long after the election.
Some in the GOP are signaling there may be legal challenges to Vice President Kamala Harris and her run for the White House now that President Joe Biden has stepped down from the race.
Republican legal experts and think tanks such as the Heritage Foundation are questioning Harris's ability to access the Biden-Harris campaign coffers. Others, including Congressman Steve Scalise, say it's wrong for Harris to assume the top line of the ticket after 14 million state primary voters cast ballots for Biden.
But any lawsuit to stop Harris from taking Biden's campaign cash or taking his place on the ballot will be a doomed effort, three nonpartisan experts told Business Insider.
"I just don't think that there are shenanigans that are likely to work," said Dan Weiner, an election law and campaign finance expert at the Brennan Center for Justice.
A campaign finance challenge
Those who may seek to challenge Harris's claim on the Biden-Harris campaign funds could argue that Federal Election Commission rules dictate that she has no claim to the campaign's money.
Charles Spies, a former counsel for the Republican National Committee, argued in a recent opinion article for The Wall Street Journal that without having formally accepted the Democratic party's nomination, Biden is limited to transferring just $2,000 of the campaign's war chest to any other candidate — including Harris.
"There is no legal mechanism to somehow switch that money to being for Harris before either Biden or Harris is their party's nominee," Spies told BI, arguing that donors provided funds with the understanding they were donating to a Biden presidential campaign so the money is non-transferable. "Worse yet for Harris, a significant amount of that money was raised for Biden's general election account and FEC regulations unambiguously say must be returned to donors unless Biden is the general election candidate, which he is not."
But Weiner, a nonpartisan former senior counsel at the FEC, says the vice president has every right to the roughly $100 million war chest of Biden-Harris donations.
He called a campaign funds challenge "an express train to nowhere."
"They were running together as a ticket and have one committee," Weiner said.
Two other nonpartisan legal experts agreed.
"She's on the paperwork, and she is entitled to those funds," said David Becker, executive director and founder of The Center for Election Innovation and Research in Washington, DC.
"And my understanding is, as of today, they have filed amending paperwork."
Adav Noti, the executive director of the Campaign Legal Center, told BI that as long as Harris is on the ticket in the end — as either a presidential or vice presidential candidate — "the existing money in the campaign account is hers to control."
While FEC rules strictly regulate what happens to campaign funds after a candidate has been nominated, Noti said, there is no regulation saying the same thing about the pre-nomination period. But there are, he noted, a "fairly significant number of rules" that treat the presidential campaign committee as the campaign committee of both candidates.
"So it's a pretty attenuated argument, to put it mildly," Noti said. "And not one that that has any support in either a regulation or any precedent."
Federal courts would likely boot a challenge immediately because the proper place for such challenges is with the FEC, the nonpartisan experts said.
And, while it takes the FEC years to address complaints that do have merit — in which case, a ruling would be made long after the election — Weiner said "the chances are verging on zero that they will find a majority of four FEC commissioners who would bar Harris from accessing these funds."
Harris' ballot eligibility
The three nonpartisan election law experts said any attempt to keep Harris off the ballot because it would be unfair to primary voters is even more doomed.
That's because it's the Republican and Democratic party conventions that decide who's on the ballot.
"There isn't a candidate yet," said Weiner, the Brennan Center expert.
"There was a presumptive Democratic nominee and that presumptive nominee has bowed out," he said. "No ballots have been printed, no deadlines have passed."
"Even compared to the arguments that Republicans made in the aftermath of the 2020 election, these arguments that they have to nominate Biden are completely bogus," he added.
To claim there has been some kind of back-room coup is to make a political, not a legal argument, Weiner said.
"The theories that have been floated about potential challenges or concerns about her ballot eligibility, all of the ones that I've seen have relied on legal restrictions around replacing general election candidates," Noti told BI. "But that's not what's happening here. There's no general election candidate being replaced, so those rules and regulations about replacement don't don't apply to the situation."
Until the mid-1970s the two major parties routinely went into their party conventions not knowing who their nominees would be, and it was hashed out in rounds of voting on the convention floor, Weiner noted.
"The parties have carte blanche to nominate who they want according to their own rules," he said, "as long as they're eligible to be nominated."
According to Becker of the Center for Election Innovation & Research, the first ballot for mail-in voting in North Carolina will not roll off the presses until September 6.
Noti of the Campaign Legal Center said a meritless claim like this would be tossed from court immediately, leaving the GOP challengers' lawyers subject to possible sanctions for filing a frivolous suit.
"I suspect it would be disposed of very quickly," Becker agreed of any legal challenge to Harris headlining Democratic ballots.
"Although we've seen that filing frivolous lawsuits is no barrier to this," Becker said, "I'm 100% confident that no court will allow the Republican Party to dictate who the Democratic Party nominee will be."