Washington State has recently joined Ohio and Alabama in informing election officials that President Joe Biden may be left off their general election ballots due to discrepancies between the dates of the Democratic National Committee’s nominating convention and state ballot deadlines. The Evergreen State appears to have already suggested a solution for the Democrat to remain eligible.
On Thursday, the director of elections at Washington’s Secretary of State’s office sent a letter to DNC Chair Jamie Harrison, which ABC News obtained, warning that the deadline for ballot certification under state law is August 20, the day after the DNC convenes in Chicago to nominate presidential and vice presidential candidates.
According to the letter, Stuart Holmes, the Director of Elections under Democratic Secretary Steve Hobbs, stated that the office would make an exception for the party if they submitted a provisional nomination certification by August 20.
This comes as Ohio and Alabama’s Republican Secretaries of State have stated in the last week that they intend to implement identical state election regulations in an unprecedented and potentially partisan manner.
Ohio Secretary of State Frank LaRose and Alabama Secretary of State Wes Allen have both warned Democrats about similar conflicts between their respective state deadlines and the DNC convention’s scheduling in mid-August, warning that Biden’s nomination in Chicago will come too late to appear on their general election ballots.
In Ohio, LaRose warned in a letter last week that the DNC’s convention, scheduled to begin on August 19, would miss the August 7 ballot certification deadline. Allen wrote a letter to Alabama Democrats on Tuesday, alerting them that their deadline of August 15 would fall before the convention.
This scheduling conflict is not new; both parties have held conventions in late August in previous years. However, states have historically avoided barring major party candidates from their ballots by either easily granting provisional ballot access, as Washington suggests, or working through their legislatures to allow certification extensions.
But now, experts say, red-state officials are uniquely leveraging the issue against Joe Biden and Vice President Kamala Harris, the presumptive Democratic nominees, despite the fact that their predecessors made exceptions for former President Donald Trump and former Vice President Mike Pence to appear on their ballots when the RNC convention was too late for their certification.
“We’ve never dealt with this before.” [The GOP Secretaries] simply made it up. Elaine Kamarck, a senior fellow at the Brookings Institution and Democratic National Committee member, remarked, “No, this has never happened before.”
Richard Winger, a ballot access expert and political commentator, concurred.
“These deadlines do not exist for political reasons.” But it’s politicized this year,” he told ABC News.
“Deadlines did not prevent a major-party presidential candidate from appearing on the ballot in any state since 1964. “There has never been a major party candidate who was not on the ballot in any state,” Winger noted.
Do Democrats Have A Game Plan To Get Biden On The Ballot?
Now, the Biden team and Democratic officials are looking for ways to ensure that the president appears on the ballot in Ohio and Alabama.
In response to the news from Ohio and Alabama, Biden’s reelection team insisted that “Joe Biden will be on the ballot in all 50 states.” They see this happening first through provisional certification (formally notifying states before the convention that they expect Biden to be the nominee); second, by changing the state’s election filing deadlines through the state’s GOP-controlled legislatures; third, through legal action; and finally, by virtually nominating the Biden-Harris ticket ahead of their in-person convention.
Historically, nominees from both major parties have received provisional ballot access certification in Ohio, Alabama, and a few other states if their convention dates conflict with state election code certification deadlines.
Oklahoma, Illinois, Washington, and Montana accepted provisional certificates from the Democratic and Republican National Committees ahead of the 2020 general elections. Alabama likewise accepted Republicans’ provisional certification that year in order to qualify Trump and Pence.
In 2020, the Alabama legislature pushed the certification date for that race to August 20, 2020, though that was still a week before the Republican conference ended. The state accepted the provisional certification that the RNC filed.
In Ohio, the Biden team has stated that they are in discussions with the secretary’s office about next steps in terms of provisional certification.
Democratic Ohio-based lawyer Donald McTigue informed the Ohio Secretary of State and ABC News this week that the Democratic Party would provisionally certify Biden and Harris by the state’s August 7 deadline and then ratify the results at the convention.
Ben Kindel, a representative for LaRose’s office, stated that their legal counsel was analyzing the letter.
In Alabama, attorney Barry Ragsdale, representing the Biden campaign, sent a letter to the general counsel for the Alabama Secretary of State’s office on Wednesday, stating that the DNC could provisionally certify Biden and Harris as party nominees by the state’s August 15 deadline and then confirm the results at the convention.
“This proposal avoids the constitutional problems that would arise if your office were to interpret Ala. Code § 17-14-31(b)’s certification deadline to preclude President Biden and Vice President Harris from appearing on the Alabama general election ballot,” Ragsdale said in a statement.
“It would allow the many Alabamians who support President Biden and Vice President Harris to exercise their fundamental constitutional right to meaningfully participate in the presidential election,” he went on to say.
The Biden official stated that state legislatures will take over the strategy if provisional ballot certification fails. This legislative action has been successful not only in Alabama but also in Ohio, where laws were passed before both the 2012 and 2020 elections to avoid the state’s 90-day nomination deadline. These laws have helped both Republicans and Democrats get their nominees on the ballot, most recently in 2020, when both parties had conventions before the deadline.
In their initial letter to Democrats, Secretary LaRose’s legal counsel offered two options: move up the date of the DNC convention, or by May 9, the state’s Republican-led legislature must adopt legislation allowing for an extension.
In the days following Alabama’s warning to Biden, Democratic state senator Merika Coleman presented legislation that would push the state’s deadline back to August 23, after the DNC Convention.
One of the final options is to sue in court, which the Biden campaign thinks they have a “strong case” for.
In a letter to Alabama leadership, Biden’s counsel stated that “a court would have little difficulty finding that strict application of the eighty-two-day deadline imposes a severe restriction on President Biden and Vice President Harris’s access to the ballot,” arguing that the state’s actions in barring the presumptive nominees were “unjust and unconstitutional.”
Courts may even cite the recent Supreme Court decision in Trump v. Anderson, which sought to bar Trump from Colorado’s GOP primary ballot, as the justices ruled that states have no authority to prohibit candidates for federal offices, particularly the presidency, from appearing on the ballot.
The DNC’s final stage would be to have a virtual vote to nominate the Biden-Harris ticket before their August convention.
“The legislature is there if they don’t do the provisional certification.” If, for whatever reason, the legislature fails to act and we end up in court, the argument for litigation is strong. But if we are unsuccessful, we have a system in place that the DNC can follow to completely resolve the matter,” a Biden campaign official told ABC News.
“So the bottom line is, we’re going to be on the ballot in both of these states,” they went on to say.
