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Brooke Gladstone: This is On the Media's midweek podcast. I'm Brooke Gladstone.

News clip: Breaking news right now, President Biden has decided to step out of the race for the White House, a short time later endorsing Vice President Kamala Harris to take the top of the ticket.

Brooke Gladstone: Moments after Biden exited the race on Sunday afternoon, GOP leaders rushed to tug at any loose threads in his withdrawal. Their biggest complaint, it's an affront to democracy and possibly illegal.

J.D. Vance: The idea of selecting the Democrat party's nominee because George Soros and Barack Obama and a couple of elite Democrats got in a smoke-filled room and decided to throw Joe Biden overboard, that is not how it works. That is a threat to democracy.

News clip: Now they've nominated, anointed, crowned their nominee without one single vote from the electorate, from the people.

News clip: Republicans are threatening legal challenges over President Biden's decision to drop out of the race. Just before the president made the announcement, House Speaker Mike Johnson had said a withdrawal would raise legal issues.

Rick Hasen: I think there's both a legal argument and a political argument.

Brooke Gladstone: Rick Hasen is a legal scholar and law professor at UCLA. He recently wrote a piece for Slate called Kamala Harris Replacing Joe Biden Is Not Antidemocratic.

Rick Hasen: The legal argument is that somehow replacing Biden would come too late or would mean that Democrats wouldn't have a candidate on the ballot in some states, that is not a very strong legal argument as we can discuss. It was made primarily before Biden decided to withdraw, I think as a deterrent so that he wouldn't withdraw.

Brooke Gladstone: How much juice is in that legal argument?

Rick Hasen: Not very juicy. Let me walk you through it. First of all, Joe Biden was never the nominee of the Democratic Party for the 2024 presidential nomination. It's why journalists refer to him as the presumptive nominee, which just means that he racked up enough delegates that when you got to the time to actually conduct the voting at the Democratic National Convention or otherwise, that he's the one that was going to be the winner but he wasn't.

Rick Hasen: There's no replacing of Biden on the ballot. It's not as though Democratic officials had told officials in different states to put the Biden-Harris ticket on the ballot. Instead, what normally happens is that the party goes through an official process, and then they notify election officials who then prepare the ballots.

Rick Hasen: Every state has their own rules. We have a decentralized system for setting up the ballots. In some states, the deadlines look like they potentially had passed. Two notable states are Ohio and Washington. They present somewhat different legal issues. In Ohio, the initial deadline was August 7th. That deadline was then extended after the governor of the state, who's a Republican, Mike DeWine, said, "We can't have a situation where we're not going to have the major party candidates on the ballot." They extended the deadline. Everything would look fine except for the fact that the law that extends the deadline to September 1st doesn't come into effect under Ohio law until September 1st.

Rick Hasen: Some are arguing that Ohio was going to engage in some kind of chicanery and keep Biden off the ballot. I think it's a really weak argument, in part because election officials had communicated not just to the Biden campaign but to all of their local election officials that the deadline was September 1st, so that seemed really weak to me. There's a separate, even more technical argument in Washington state. The deadline set by the Legislature would be before the Democratic Convention. By custom, the state election administrators extended that deadline to include the time of the convention.

Rick Hasen: The argument would be that state election administrators don't have the power under the Constitution to extend that deadline. It's a very technical argument called the Independent State Legislature Theory. It played a role in the 2020 election. I think it would be a very weak argument. This is, at least, the ostensible reason why Democrats were going to have a virtual roll call. That is, before the convention, they were going to go on Zoom or something, and they were going to vote officially for Biden to be the nominee. It now sounds like they're going to do that for Harris to just forestall these potential suits that may come that would probably, almost certainly, lose anyway.

Brooke Gladstone: Now, let's talk about the political argument. This has essentially been a coup to get Biden to leave. This word has been used a lot on Fox News. Here's Fox News host, Greg Gutfeld.

Greg Gutfeld: If Joe can still do the job, then didn't we just witness a coup orchestrated by Obama, Clooney, the big coastal donors, and the media who just replaced a candidate simply because he was polling below Trump?

Brooke Gladstone: J.D. Vance certainly agrees on a recent appearance on Jesse Watters Primetime on Fox. Watters asked, "Is it a coup against Joe Biden?"

J.D. Vance: I think it is. Look, there's a constitutional process, the 25th Amendment. If Joe Biden can't run for president, he can't serve as president. If they want to take him down because he's mentally incapable of serving, invoke the 25th Amendment.

Rick Hasen: I think this is gaslighting. This is trying to say, "Oh look, they're as bad as we are, or they're worse than we are. They're the real coup." You remember during the 2016 debate when Hillary Clinton called Trump a puppet, and he turned around and said, "I'm not a puppet, you're a puppet." It just reminds me of that. It's like, "No, you're the coup breaker. You're the democracy breaker."

Rick Hasen: We've heard Trump say this a lot about Biden, that Biden is a threat to democracy. In fact, part of this Heritage Foundation Project 2025 group, they put out some report, this is before Biden withdrew, where they said Biden is threatening to stay in power, he's not going to leave office. It was just shameless and completely unsupported by any reality. The way to understand this politically is this is an attempt to say, "They're as bad, if not worse, than we are."

Brooke Gladstone: You're talking about January 6th?

Rick Hasen: Not just January 6th, but everything that happened from the time of the election in 2020, all of the activities that Donald Trump tried to do with his allies to subvert the election, to get states to send in alternative slates of electors, to get his Department of Justice to say there was fraud in Georgia, to facilitate Georgia throwing out the votes, to trying to get Brad Raffensperger, the Secretary of State of Georgia, to find him 11,780 votes, culminating in trying to physically interrupt the counting of the Electoral College votes in Congress on January 6th, 2021.

Rick Hasen: Now forget the coup, it's not a coup but is it anti-democratic? I think that's a more serious argument. Let's imagine that Joe Biden dug in his heels and he said, "I'm still running," and then the party pooh-bahs, whoever they are, they say, "You know what, we're going to put up an alternative candidate," and they use the rules of the Democratic Party to try and challenge that. There's a whole fight, and eventually, they convince enough delegates who were pledged for Joe Biden to vote against Biden.

Rick Hasen: Then I think you could have an argument that there's a democratic problem here, but that's not what happened. Joe Biden voluntarily withdrew. By voluntarily withdrawing, he has created the condition where, just like if a candidate dies, you invoke the backup plan, so there's really only two reasons for the parties to have conventions today. Otherwise, we could just count up all the primary results. Number one, something like this, the leading candidate can no longer serve, or number two, there is no leading candidate and they have to choose among people. That would be the open or brokered convention. This is part of what the process is. This is democracy. It's not an affront to democracy.

Brooke Gladstone: When Speaker of the House Mike Johnson threatens to sue and tells ABC.

Mike Johnson: Well, these elections are handled at the state level. Every state has its own system, and in some of these, it's not possible to simply just switch out a candidate who has been chosen through the democratic process over such a long period of time. 14 million Democrats voted to make Joe Biden the nominee, so it would be wrong, and I think unlawful in accordance with some of these states' rules, for a handful of people to go in a back room and switch it out because they don't like the candidate any longer. That's not how this is supposed to work.

Brooke Gladstone: There's no legitimacy to that.

Rick Hasen: People voted for Biden, but that vote was in a set of primaries that are not binding on the delegates under these circumstances when a candidate has withdrawn. I've seen a few interviews with Johnson where he's pushed, like, "What laws?" He said, "Well, it's very complicated. Every state has their own laws." If you look, for example, at the Heritage Foundation memo that points to what laws, they point, for example, to a Wisconsin law about replacing a candidate when the office is vacant when the candidate has withdrawn.

Rick Hasen: There's a separate provision that says, "Here's what happens when you have a nomination for president from a party. After that party's convention, the party leaders transmit the names to election officials to put on the ballot." They're pointing to laws that just don't come into effect. The only place where this can be an issue, it's not really about replacing Biden at all, it's about timing. So long as the information is there in time, then Harris or whoever is the Democratic nominee will appear on the ballot. I'm very confident that the person will appear on the ballot in all 50 states and the District of Columbia.

Brooke Gladstone: You've noted in the past that the process of choosing a nominee was even less democratic before than it is now. They were once chosen by delegates and leaders in a literally smoke-filled room. Tell me more about that and also, how the process has changed.

Rick Hasen: Before 1968. Party leaders had much more power. We think of political parties as being just a brand name today, and really the party just stands for a basket of issues but in the past, parties were different. For example, in the big cities, parties would be very involved in giving out government jobs. There was a whole patronage system. There were party bosses. You've heard of Boss Tweed, certainly in big cities like Philadelphia and Chicago. Long history of this.

Rick Hasen: Part of this party-bossism was that the party leaders were the ones who in the back rooms were choosing who the candidates were going to be for president. This was seen as insufficiently democratic. What you ended up getting after the withdrawal of Lyndon Johnson and the rise of Nixon is that there's a push to democratize the parties. The parties start moving towards systems of more democracy so there's votes.

Brooke Gladstone: You're talking about the widespread use of primaries?

Rick Hasen: Right. It's still not universal. You think about the Iowa caucuses, Democrats have super delegates. I don't know if you remember the talk about super delegates. This was big back when it was going to be Bernie Sanders versus Hillary. Super delegates are not elected by people. They instead are democratic party leaders around the country. They're democratic mayors, or they're US senators.

Rick Hasen: The idea is there's going to be thousands of delegates who are elected, but there's going to be hundreds of these super delegates. What value would they play? Well, if it's a close contest, let's say it's Bernie versus Hillary and nobody gets a majority of votes, well, then the party can weigh in. The party leaders can weigh in. It's still not a pure democracy. It's not as though we just add up the votes and that's it.

Rick Hasen: There's some play in the joints when it comes to how both of the major parties have their sets of rules. What are parties for? They're for trying to create the strongest candidate who's going to run in the general election. They're not necessarily about democracy as their only thing, but the parties are much more democratic than they were in the past. It's still not like a one-person, one-vote kind of way of choosing nominees. There's much more room for flexibility.

Brooke Gladstone: In your piece, you said that the GOP complaints that the Democrats are being undemocratic and maybe even behaving illegally are crazy, and that, "Democrats coming together with a fair vote and choosing another nominee after the leading candidate has withdrawn is an example of the process working, not failing."

Rick Hasen: Let's say that Joe Biden doesn't think he's up for another four years, but he can go another six months, which is the answer to the 25th Amendment claims. He can do one job, be present now. He can't do two jobs, be present, and run again. Are you saying that you want him to run anyway, or is that just, Democrats will just wave the white flag? We're just not going to run a candidate. That's not the kind of healthy party competition that we expect.

Rick Hasen: We expect that each party is going to run their best candidate, and if the person who's in the lead on one side says, "I can't go any longer," well, then the right thing to do is let the party choose the successor. I don't know if you saw the letter that Congressman Jamie Raskin wrote before Biden withdrew, but he made an analogy to a pitcher. He said, "You could be the best pitcher in baseball and after a while, no matter how good you are, your arm starts to give out. If the game is going so long, you've got to let a relief pitcher come in and take over."

Rick Hasen: It's like, "No, we're going to keep the pitcher who is no longer capable of playing the game in the game. That's the only fair thing to do." That's a crazy argument to me and that's the analogous argument on the Republican side.

Brooke Gladstone: Well, what struck me as really peculiar is you have Speaker Johnson saying, "He really needs to be on the ballot," and then an hour later saying, "He should really put in his resignation now." They've had trouble getting their talking points sorted.

Rick Hasen: If Joe Biden actually resigned, then Kamala Harris would become the president. Who'd be the vice president? Well, the vice president would have to be nominated by Harris, but would Republicans confirm any Democrat to be vice president? Maybe not. Maybe there'd be no vice president. You know who's next in line? Mike Johnson.

Brooke Gladstone: [laughs] What do you think Republicans are trying to achieve with these narratives?

Rick Hasen: Today, I think the reason that Republicans are doing this is to de-legitimize Democratic candidates. I draw a thorough line from Birtherism with Obama to Hillary Clinton and her emails and Pizzagate, to Joe Biden and the Ukraine, to the 2020 election supposedly being stolen, to now, that if Democrats win, it must be because they've done something that is illegal or unethical. I think the sullying is part of the reason for the continued statements that there's some kind of legal problem.

Brooke Gladstone: Have you seen any other narratives emerging from the right regarding Biden's withdrawal and Kamala Harris's likely nomination, other legal challenges maybe, or other kinds? We've seen birtherism rear its head a little bit with regard to Kamala, but completely without justification, but what are you sniffing out these days?

Rick Hasen: Well, I think there's two other areas. One, you've already mentioned, which is the 25th Amendment. I think this is going to be a way to try to attack Biden till the end of his term that he is somehow mentally incompetent to be president now and needs to step away. That is another way to try to weaken the president while he is in office.

Rick Hasen: The other issue is one involving campaign financing. Before Biden decided to withdraw, he and Harris had a kind of joint campaign account that had over $90 million in it. Now, if Biden withdrew and it was anyone else who was going to be the new Democratic nominee, it's clear that Biden couldn't give that money to the new nominee.

Brooke Gladstone: Except for Harris.

Rick Hasen: Right. If it were, say, Gretchen Whitmer, that money would have to go either to the Democratic National Committee or to some other party committees or go into a super PAC or they have to do something to convert it. You can't give money from one candidate to another. The very small amounts are allowed.

Brooke Gladstone: You said it could go to the DNC, therefore, the money could end up in support of whoever the nominee turned out to be.

Rick Hasen: Right, but then that money is not as valuable in the hands of the DNC for true reasons. First, the DNC would not be able to coordinate messaging to the extent it uses that money. It'd have to have actually a separate group that would spend this money. It's one of the weird quirks of our campaign finance system. The other thing is that candidates get the lowest cost for commercials on TV by law.

Rick Hasen: The money is more valuable in the hands of a candidate than in the hands of a party. It matters if it stays in the hands of the party. Most campaign finance lawyers I know believe that because it was a joint Biden-Harris committee, that Harris can simply take it over and use the money. There is an argument that's been advanced by a Republican election lawyer, Charlie Spies, it was in The Wall Street Journal a couple of weeks ago that says that Harris can't do it because she's not really the vice presidential nominee until the convention happens.

Rick Hasen: Well, Democrats have gone ahead and they are raising money into that same fund, and I have no doubt that there's going to be a complaint filed with the Federal Election Commission saying that this is illegal. This will take months, probably years to sort out. In the meantime, once again, "I'm not the puppet, you're the puppet." Trump can say of campaign finance violations, "You are the one violating campaign finance law." I'm expecting to see that argument come down the pike as well.

Brooke Gladstone: Also, meanwhile, Kamala's raising tens of millions of dollars. As we're speaking, I think she's raised a hundred.

Rick Hasen: She is not going to be having the same kind of difficulty raising money that Biden was having at the end. There's a lot of enthusiasm that is surrounding the Harris campaign. We don't know how long that will last. We don't know what this will do on the Trump side, but in the last election, we had more than a billion dollars on each side.

Rick Hasen: Money is not going to be what's going to determine the outcome of this race because it's going to be saturated. There's going to be a ton of money, and there's going to be a ton of earned media because people are going to be watching this race very closely because now it's not the grumpy old men, it's going to be a different movie.

Brooke Gladstone: I'm wondering, GOP Representative Andy Ogles, the representative from Tennessee in the House, just introduced articles of impeachment against Harris for high crimes and misdemeanors.

Rick Hasen: Trying to impeach the vice president for fictitious crimes, it's a political stunt. There's no basis to believe that Kamala Harris has committed any crimes, much less high crimes and misdemeanors. This is just more, I think, of the degradation of American politics. Remember, we've already seen the GOP has gone after Secretary Mayorkas for impeachment, Attorney General Garland. The norms have eroded to the extent that people are willing to do almost anything to get some political attention and to try to score some political points.

Brooke Gladstone: Thanks very much, Rick.

Rick Hasen: Always great to talk to you.

Brooke Gladstone: Rick Hasen is a legal scholar and law professor at UCLA. He wrote the recent piece in Slate, Kamala Harris Replacing Joe Biden Is Not Antidemocratic. Since we recorded, the Trump campaign filed a complaint at the Federal Elections Commission over the Harris fundraising account. Thanks for listening to the midweek podcast. Tune into the big show this Friday and keep up with the show by following us on Instagram and Threads. I'm Brooke Gladstone.

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