The Great Replacement (of Joe Biden)

An In-Depth Review of What Happens Next (Which No One Knows)

On Sunday, July 21, 2024, President Joe Biden announced his decision to end his presidential re-election campaign via a letter published on the social media platform X. 15 minutes later, he made a second announcement on X endorsing Vice President Kamala Harris as his successor in the campaign.

By 6:50PM that afternoon, the Biden-Harris campaign had amended filings with the Federal Election Commission to rename its principal committee and declare Harris a candidate for president. Immediately following these events, Democratic lawmakers rushed to signal their support for Harris as the party's presidential nominee. Today, Friday, July 26, former President Barack Obama endorsed Kamala Harris.

The bewildering speed with which these events have occurred, in conjunction with the unusual way in Biden resigned, the lack of notification to his staff, and the much-delayed public appearance of the man himself, led The NY Post to call this week’s events a palace coup. Across X, Substack, and Telegram, pundits and bloggers have spent all week speculating about what happened.

This article isn’t about speculating what happened. This article is about speculating what will happen next. But before we can begin that speculation, let’s first take a look at how these things normally go.

The election of the United States President is a Byzantine affair that relies on an indirect selection of electors in the so-called "electoral college system.” The system serves to balance the power of small and large states, and rural and urban voters, and as such has become widely disliked by the elites who dominate the large, urban voting centers. The irony, of course, is that those same voices happily participate in a nomination system that is far, far more Byzantine!

What is a Political Party?

In the U.S., a political party is a not-for-profit organization of members with shared interests. Because the U.S. is a federal union made of up 50 states and numerous territories, the political parties are organized at both the federal level and state level, with a subsidiary party existing in every state and territory of the Union. There exists, for instance, the Democratic Party of the United States but also the California Democratic Party, the Wisconsin Democratic Party, and so on, each of which has its own executive committee, charter, and bylaws.

Each election season, be it federal or state, candidates step forward from the membership to stand for various elected positions. By means of either primary voting or party caucus, the state party then collectively chooses from among these candidates whichever candidate the party’s members believe will best represent them; this candidate becomes that state’s party nominee. One the state party has a nominee for a particular position, it then focuses on advertising the nominee to undecided voters and on “getting out the vote” of registered party members to actually elect the nominee into his office in the state or federal election. (If the nominee is a Presidential nominee, there is another step; we’ll discuss that later.)

That’s simple enough to understand. But, alas, it’s not so simple. Legally speaking, what is a political party? Is it a public particle or a private wave? It is both: U.S. political parties exist in a quantum superposition of political obfuscation that not even astute observation can collapse into one form or the other.

The U.S. Constitution has nothing to say about political parties, which didn’t exist at the time the Constitution was ratified in 1788. When, in 1800, two distinct political parties had formed - the Federalists and the Democratic-Republicans — their hijinks during that year’s presidential campaign revealed that the system the Founders had created was easily manipulated by political factions. The need to hastily pass the 12th Amendment (1804) should dispel any illusions about the omniscient foresightedness of the framers. In any case, we receive no help from the Constitution on this matter.

On paper, political parties are organized at the state law level are either non-profit corporations or as unincorporated non-profit organizations. The Democratic Party of the United States, for instance, is a not-for-profit corporation.

Like all private organizations, political parties have charters and bylaws by which they govern themselves, and until 1905, political parties basically did just that. Each party selected its nominee in privately-run caucuses, member-only events in which the party members chose their nominee according to the rules of their party’s bylaws. The selection of a party nominee was, in a sense, little different than the selection of a public corporation’s board of directors by its shareholders, or its CEO by its board.

In 1905, however, Wisconsin passed comprehensive regulation of primaries, and other states followed suit rapidly. By 1916, half of states in the Union had primary laws, and today in 46 of 50 states the parties use state-run primaries to select their nominee.

When states first began to regulate political primaries, one of the regulations they imposed was to ban African-Americans from participating in them, either directly or by means of a poll tax with a disproportionate impact on them. However, in 1927, the U.S. Supreme Court ruled in Nixon v. Herndon that Texas could not statutorily exclude African Americans from participating in primary elections by imposing a poll tax.

Texas promptly enacted a new provision that returned to the political parties the power to determine who could vote in their primaries; and the Texas Democratic Party then used its restored power to restrict voting in its primaries to whites only.

But in Smith v. Allwright (1944), the Court ruled that the Texas Democratic Party’s practice of restricting primary voting to whites was unconstitutional. And this changed everything.

This landmark decision held that primaries are an “integral part” of the election process, such that racial discrimination in primary voting violated the Fifteenth Amendment. When private entities, like political parties, engage in activities that are traditionally and exclusively performed by the state, such as holding primary elections, they become subject to the same constitutional constraints as the states. (The obvious argument that selecting a party’s nominees by primary had not traditionally been a function performed by the state was deemed less important than achieving racial justice.)

Having clearly established that political parties were semi-public organizations subject to constitutional, federal, and state regulation, the Supreme Court then proceeded to, well, to confuse everyone, with its decision in California Democratic Party v. Jones (2000).

That case revolved around Proposition 198, a law that had changed California's partisan primary from a closed primary (one where only a party's members can vote on its nominees) to a blanket primary (one where any voter can choose to vote on any party’s nominees). The California Democratic Party sued, arguing that Proposition 198 violated their First Amendment right of association as private organizations. The Supreme Court agreed!

As it stands, then, a political party in 2024 is a private organization with a constitutional right to exclude people from voting in its primary. It is also a public organization with a constitutional duty not to exclude people from voting in its primary. Got it?

Because of this quantum superposition, the party nomination process in each state is regulated by an astonishing number of different documents:

• The charters and bylaws of the state-level party organization itself;

• The charters and bylaws of the national-level party organization to which it belongs;

• The state election laws, regulations, and court decision of its state;

• The federal election laws, regulations, and court decisions of the U.S.; and

• The Constitution of the U.S. as interpreted by the SCOTUS.

That’s a lot of law. U.S. elections have begun to approach those of the Holy Roman Empire in their opaqueness and complexity. And all of this will become very important later, so keep reading!

How does the Democratic Party Nominate Presidential Candidates?

Now we can discuss how the Democratic Party is supposed to nominate the President. (The Republicans have a somewhat similar system, but since the present crisis revolves around Biden and Harris, we’ll just focus on the Democrats.)

Every four years, the Democratic Party of the United States holds the Democratic National Convention to decide and declare the party’s nominee for President and Vice President.

The nominee is determined by the votes of convention delegates, of which there are two types, pledged delegates (who have previously committed to nominating a particular candidate) and superdelegates (who can vote for whichever candidate they prefer at the time of the convention). Approximately 15% of the Convention’s delegates are superdelegates.

What Determines How Many Delegates a State Gets?

Prior to the Convention, the Democratic National Committee (DNC), a committee made up of the most important figures in the Democratic Party, tells each state-level party how many delegates its state will have.

The exact number of delegates assigned to each state is determined by a formula far more complex than the comparatively-simple Electoral College formula:

1. The base number of delegates for each state is calculated based on its Democratic vote in the previous presidential election. This ensures states that contribute more to Democratic victories receive more delegates.

2. Population size, based on the most recent Census, also influences the base number of delegates. Larger states get more delegates to reflect their bigger populations.

3. States that have consistently voted for Democratic candidates in recent elections receive bonus delegates. This rewards states that are strongholds for the party.

4. States that hold their primary contests later in the election season can receive bonus delegates. This encourages states to hold primaries at different times, avoiding a rush of early contests.

5. Small states and territories get a minimum number of delegates, to ensure they are not left without any representation.

On the basis of this formula, the big blue state of California has the highest number of delegates with 424; Texas, large but red, has 244 delegates; a mid-sized state like Alabama has 52 delegates; and a small territory like US Virgin Islands have 13 delegates.

About 15% of each state’s delegates are superdelegates who can vote freely at the Convention, while the remaining 85% are delegates pledged to a particular candidate.

How are the Delegates to the Democratic National Convention Chosen for the States?

Before each state holds its caucus or primary, each of the candidates running for President in that state submits a roster of preferred delegates to the state-level Democratic Party.

The state-level party, subject to federal and state election law, then holds its annual caucus or primary. Since 46 of the 50 states use primaries, we’ll focus on primaries. (Caucuses aren’t different enough that it matters much.)

At the Democratic primary, eligible voters select from one or more of their party’s candidates for nomination. They don’t vote for delegates. Instead, delegates are allocated proportionally based on the primary results. However, only candidates who receive at least 15% of the vote are eligible to receive delegates.

For instance, let’s imagine that three candidates were attempting to secure the nomination for President in a state with 60 delegates. Candidate A got 60% of the votes; Candidate B got 30% of the votes; and Candidate C got 10% of the votes.

If delegates were distributed proportionately, then A would earn 36 delegates, B would get 18 delegates, and C would get 6 delegates. However, because C got less than 15% of the vote, he earns no delegates at all. The delegates are exclusively allocated between A and B, such that A gets 66% of the delegates and B gets 33% of the delegates - 40 and 20 respectively.

After learning that he has 40 delegates, Candidate A reviews his roster of preferred delegates with the state party’s executive committee, and collectively they choose which of his delegates will get sent to the National Convention. Those delegates are officially pledged to Candidate A and must vote for him in the first round of voting at the Convention.

While all this is happening, the executive committee of each state-level party also selects (by various means which can vary state-by-state) the superdelegates that will represent the state at the Convention.

And this same process occurs in every one of the various states and territories of the Union. There is a lot going on behind the scenes. When pundits talk about the “machinery” of party politics, this is what they mean.

This year’s Democratic National Convention will have a total of 4,698 delegates, of which 749 are superdelegates and 3,949 are pledged delegates. Of the pledged delegates, 3,886 are pledged to Joe Biden.

How Do the Delegates Vote at the Democratic National Convention?

The voting process for delegates is a public affair rather than a secret ballot. The most prominent part of the voting process at the convention is the initial or roll call vote, where each state's pledged delegation announces its votes publicly. This is a televised and highly ceremonial event, where one of the pledged delegates from each state take turns announcing their state’s votes for the candidate to which they are pledged, often adding a brief statement celebrating their state and its role in the process.

If, at the end of the roll call vote, one candidate has secured a majority of the pledged delegates of all the states and territories, that candidate becomes the Democratic Party’s nominee for President.

But what if, at the end of the initial vote, no candidate has a majority of the pledged delegates? At this point, the convention becomes a brokered convention. In a brokered convention, additional rounds of voting are held until one candidate gains a majority of the delegates. In 1924, it took 103 rounds of voting for the Democratic Party to selects its candidate! These later rounds of voting are substantially different from the initial roll call, for two reasons:

• The superdelegates can now vote. This increases the number of delegates required to win the majority and gives party leaders (who are or who appointed the superdelegates) substantial influence over the outcome.

• The pledged delegates are released from their pledges. They can vote for whomever they’d like.

Brokered conventions were once quite common, but in recent decades the primary system has generally resulted in a presumptive nominee being determined before the convention. The last time the Democrats had a brokered convention where multiple ballots were required to choose a nominee was in 1952. Since then, while there have been close races and speculation about potential open conventions, the party has generally arrived at its conventions with a clear presumptive nominee.

It could happen, however, and if it does it means almost anyone could emerge as the party’s nominee.

Since Biden Has Exited the Presidential Race, Will the 2024 Democratic National Convention Be a Brokered Convention?

3,886 of the 3,949 pledged delegates are currently pledged to vote for Biden as the party’s nominee. Had Biden not withdrawn from the race, his nomination would be legally inevitable, and the roll call vote would have been purely ceremonial. But Biden did withdraw from the race. So what happens? Do all the pledged delegates get to vote for whoever they want?

Some pundits are asserting that we’ll have a brokered convention. But honestly, nobody knows. Nobody knows. Not the FEC Commissioner. Note the head of the DNC. Not Kamala Harris. Nobody. In white-shoed law firms around the country, election attorneys are sharpening their swords in delight at the legal battles that are bound to come.

We thus now enter highly speculative territory. It’s so speculative that we’re going to start a new section with a big Header 3 headline.

What are the Possible Outcomes of Biden’s Withdrawal on the Votes of Pledged Delegates?

There are, broadly speaking, three possibilities:

1. The pledged delegates are required to vote in favor of a delegate chosen by the executive committee of the national Democratic party;

2. The pledged delegates are required to vote in favor of a delegate chosen by the executive committee of their state-level party; or

3. The pledged delegates are considered to be released from their pledges and can vote in the initial ballot for whomever they choose.

In order evaluate which outcome is likely, let’s look at the controlling laws and rules for each option.

Option 1: Replacement by the National Party under its Charter & Bylaws

The Democratic Party of the United States has a Charter and Bylaws that regulate its operations. Article Three, Section 1, Clause (c) of the Charter states:

The Democratic National Committee shall have general responsibility for the affairs of the Democratic Party between National Conventions, subject to the provisions of this Charter and to the resolutions or other actions of the National Convention. This responsibility shall include (c) filling vacancies in the nominations for the office of President and Vice President.

Article Two, Section 1, Clause (C) of the Bylaws reiterates:

The Democratic National Committee shall have general responsibility for the affairs of the Democratic Party between National Conventions, subject to the provisions of the Charter and to the resolutions or other official actions of the National Convention. This responsibility shall include (c) filling vacancies in the nominations for the office of the President and Vice President.

Article Two, Section 7, Clause (C) of the Bylaws notes:

Special meetings of the National Committee may be held upon the call of the Chairperson with the approval of the Executive Committee with reasonable notice to the members, and no action may be taken at such a special meeting unless such proposed action was included in the notice of the special meeting. The foregoing notwithstanding, a special meeting to fill a vacancy on the National ticket shall be held on the call of the Chairperson, who shall set the date for such meeting in accordance with the procedural rules provided for in Article Two, Section 8(d) of these Bylaws

Article Two, Section 8, Clause (B) of the Bylaws regulates the special meeting as follows:

A majority of the full membership of the Democratic National Committee present in person or by proxy shall constitute a quorum, provided that no less than forty percent (40%) of the full membership be present in person for the purpose of establishing a quorum; provided, however, that for purposes of voting to fill a vacancy on the National ticket, a quorum shall be a majority of the full membership present in person.

Clause (F) of Section 8 then adds:

Voting to fill a vacancy on the National ticket shall be in accord with procedural rules adopted by the Rules and Bylaws Committee and approved by the Democratic National Committee.

The question, then, is “does Biden’s withdrawal from the 2024 Presidential race create a vacancy in the National ticket?” If so, then the Chairperson of the National Committee must hold a special meeting to fill the vacancy, in which a majority of the full membership of the DNC must be present as a quorum, and in which the voting will be in accordance with procedural rules adopted by the Rules and Bylaws Committee and approved by the overall National Committee.

In other words, the DNC fills the vacancy. It seems straightforward… but it’s not quite that easy!

Option 2: Replacement at the State Level by the State Parties under State Law and Party Bylaws

Every state in the Union has passed legislation that regulates what happens when a vacancy occurs after a primary or caucus has held. For instance, consider Alabama Code, Title 17. Elections, Section 17-13-23:

Filling of vacancies in nominations.

The state executive committee… where a vacancy may occur in any nomination, either by death, resignation, revocation, or otherwise, or in case of any special election, may fill such vacancy, either by action of the committee itself or by such other method as such committee may see fit to pursue.

46 of the 50 states have virtually identical provisions with the primary difference being whether the controlling body is called the “executive committee,” “state committee,” or “central committee.” (The other four states, namely Alaska, Arkansas, Hawaii, and Louisiana, also vest the state-level party with the right to fill the vacancy, with the only difference being that the state-level party must hold a meeting or convention of its members to appoint the replacement, rather than just letting the executive committee do it.)

But that’s quite confounding. The Democratic Party of the United States at least arguably seems to assert it has the power to fill the vacancy, but every state in the Union is unanimous in assigning the power to fill the vacancy to the state parties!

Perhaps we can get some clarity by looking at state party bylaws. Again, we’ll use Alabama as our exemplar. According to the Amended and Restated Bylaws of the Alabama Democratic Party, Article 6, Section 2:

Special Elections, Vacancies, etc.

(a) Whenever a special election is called to fill any public office, the State Committee may at its discretion nominate a candidate of the Party therefore or provide for a nomination by primary election or convention or other method in vogue in the Party at the time. When there is ample time and it is legally possible to do so, a primary should ordinarily be used.

Notwithstanding any provision of these rules to the contrary, whenever by reason of reapportionment or redistricting by legislative act or by court action; (i) a Party nomination has not been made for any office (other than a county office) to be filled in any general election or (ii) there is a conflict in nomination as a result of more than one nomination having been made prior to a reduction in similar offices or (iii) there is a change in the area(s) from which any nominee(s) is to be selected, then in any such event the nominations and nominee(s) in question which shall be made, fixed and determined by the State Committee or by such method as the State Committee shall determine…

(c) When a nomination has been made and becomes vacant before the election, the vacancy may be filled by use of any of the above stated plans for special elections that may be applicable or adaptable to use, in the judgment of the Chair, who shall advise or direct action as occasions may suggest or require.

So the bylaws of the Alabama Democratic Party state that, when a vacancy occurs in a nomination, the State Committee can, at the direction of the Chair of the Committee, either nominate a candidate or provide for a nomination by primary or convention. The Bylaws recommend that “when there is ample time,” a primary should be used, but of course there is not ample time in the case at hand.

Bylaws similar to this exist, again, in every state-level arm of the Democratic Party. So, as matter of both state law and party rules, the vacancy in the state’s nomination should be filled by the state-level party’s executive committee, not by the Democratic National Committee!

Option 1 vs. Option 2: Is there a Way to Resolve this Dilemma?

Option 1 and Option 2 are in seeming conflict. As well-intentioned members of the party of democracy, how might we resolve this dilemma?

Those who favor the vacancy being filled at the state level would make something like the following argument:

“Since the Democratic National Convention hasn’t yet taken place, Biden’s withdrawal hasn’t actually created a vacancy in the ‘the nominations for the office of the President and Vice President.’ Biden is merely a presumptive, not actual nominee. No one has actually been nominated at the national level yet!”

If this interpretation is correct, then the DNC could only replace a vacancy if the vacancy arose after the Convention. Before the Convention, the choice would fall to the executive committees of each state party. Thus, Option 2 would triumph.

This interpretation creates a clear division of responsibility between state committees handling pre-convention vacancies and the DNC handling post-convention vacancies. Historical practices support this interpretation, as state committees have traditionally managed delegate allocations and candidate replacements before the national nominating process is finalized.

However, those who favor the vacancy being filled at the national level have an excellent counter-argument, that goes something like this:

“It is certainly true that, as a matter of state law, state committees are given responsivity for replacing candidates. However, political parties are private organizations and such they are primarily governed by their own private rules.

Article Two, Section 2, of the Democratic Party Charter states that “State Party rules or state laws relating to the election of delegates to the National Convention shall be observed unless in conflict with this Charter and other provisions adopted pursuant to authority of the Charter, including the resolutions or other actions of the National Convention. In the event of such conflict with state laws, state Parties shall be required to take provable positive steps to bring such laws into conformity and to carry out such other measures as may be required by the National Convention or the Democratic National Committee.”

According to our interpretation of those rules, the DNC has overarching authority to fill vacancies in the nominations for President and Vice President at all times. Therefore, the state committees must follow the directives of the DNC. To argue otherwise would be to invite chaos! DNC control is necessary so that the nomination process remains consistent with national party rules and objectives, maintaining a unified strategy and approach across all states.”

Under this interpretation, as a matter of state law, the state committees would the ones formally be replacing the candidate by carrying out the “grunt work” of replacing candidates in line with state laws, but they would have to do so under the directives and oversight of the DNC.

An analogy might help explain this interpretation. Imagine a corporation incorporated in the State of Delaware. Delaware law gives the corporation’s board of directors broad authority to manage the corporation. However, this particular corporation is a subsidiary of another corporation, and the controlling corporation has previously instructed the board that it must undertake certain activities when certain conditions occur. In this case, the discretion granted to the board under state law is greater than the discretion actually available to the board within its organizational rules. That’s more-or-less the argument here.

Of course, those who who favor the vacancy being filled at the state level have a counter-counter-argument:

“Your interpretation of the Charter and Bylaws of the Democratic Party is clearly wrong, as the rules are obviously intended to apply to vacancies that arise after the Convention has made its nomination.

But even if your interpretation is correct, it doesn’t matter, because state law has clearly and unequivocally invested the power to replace the vacancy into the state parties. Political parties aren’t just private organizations! They are semi-public organizations, and states have a strong interest in regulating them to ensure elections fairly represent the interests of the state’s citizens. Thus, when the DNC’s rules conflict with state law, state law takes priority.

Until the Democratic Party resolves this ambiguity by means of some smoky backroom deals or intense litigation, there is no way to decide which interpretation is correct. We are, again, in a state of quantum uncertainty.

It is entirely possible that the DNC will nominate a replacement for Biden, and also possible that the state parties will nominate replacements for Biden, and also possible that those replacements might not all be the same replacements!

And that leads us to Option 3.

Option 3. The delegates can vote in the initial ballot for whomever they choose.

Before we can talk about how the delegates might behave, we have to know the rules of their game.

The behavior of delegates at the National Convention is governed by yet another set of rules, specifically the Delegate Selection Rules for the 2024 Democratic National Convention as Adopted by the Democratic National Committee on September 10, 2022. Section 13(j) of these Rules states:

Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.

That’s a very…interesting… provision. Note what it does not say. It does not say “Delegates elected to the national convention pledged to a presidential candidate shall support the candidate they pledged.” It could say that… but it doesn’t.

The rule emphasizes that delegates are expected to honor their commitment to the candidate they pledged to support, but it does not strictly mandate that delegates must vote for their pledged candidate. That allows for some… flexibility.

Now, let’s consider the possibilities that might arise on the convention floor. Imagine a hypothetical Democratic delegate named “Jane Simpson,” representing the State of Alabama. Like 99.9% of her comrades, Ms. Simpson is pledged for President Joe Biden. However, Joe Biden has dropped out of the Presidential race.

A number of hypothetical situations might confront Ms. Summer.

1. Neither the DNC nor the Alabama Democratic Party state committee has filled the vacancy. Ms. Simpson believes in good conscience that those who elected her want her to vote for President Biden, even though he has exited the race. Result: Ms. Simpson’s vote is cast for Biden.

2. Neither the DNC nor the Alabama Democratic Party state committee has filled the vacancy. Ms. Simpson believes in good conscience that those who elected her would want her to use her discretion to choose a new candidate. Result: Ms. Simpson casts her vote freely, as if she were in a brokered convention.

3. The DNC has appointed a new candidate to replace the vacancy, while the Alabama Democratic Party state committee has not. Ms. Simpson believes in good conscience that voting for the DNC’s candidate would reflect the sentiments of the Alabama Democrats who elected her. Result: Ms. Simpson casts her vote for the DNC candidate.

4. DNC has appointed a new candidate to replace the vacancy, while the Alabama Democratic Party state committee has not. However, Ms. Simpson believes in good conscience that voting for the DNC’s candidate would not reflect the sentiments of the Alabama Democrats who elected her - e.g. the DNC has chosen a candidate who polled terribly in Alabama and who would adopt policies harmful to her great state. Result: Ms. Summer casts her vote for another candidate of her choice.

5. The Alabama Democratic Committee has appointed a new candidate to replace the vacancy, while the DNC has not. Ms. Simpson believes in good conscience that voting for the state committee’s candidate would reflect the sentiments of the Alabama Democrats who elected her. Result: Ms. Simpson casts her vote for the state committee’s candidate.

6. The Alabama Democratic Committee has appointed a new candidate to replace the vacancy, while the DNC has not. However Ms. Simpson believes in good conscience that voting for the state committee’s candidate would not reflect the sentiments of the Alabama Democrats who elected her. Result: Ms. Simpson casts her vote for another candidate of her choice.

7. The DNC and the state committee have appointed the same candidate to replace the vacancy. Ms. Simpson believes in good conscience that voting for this candidate would reflect the sentiments of the Alabama Democrats who elected her. Result: Ms. Simpson casts her vote for the DNC-state candidate.

8. The DNC and the state committee have both appointed a same candidate to replace the vacancy, but they’ve each appointed a different candidate! Result: Ms. Simpson could cast her vote for the DNC candidate, cast her vote for the state committee candidate, or cast her vote for another candidate of her choice.

And, of course, this same mental calculation will need to be made by over 4,000 different delegates. If we get to the point where Option 3 is determining the outcome, the Democratic National Convention is going to be wiiiiiild.

Which Option is Most Likely to Be the Outcome?

From the point of view of the DNC, Option 1 is preferred, Option 2 is tolerable provided it leads to a majority, and if things get to Option 3, any sub-option other than 3(3) or 3(7) is potentially catastrophic. From the point of view of the Democratic Party state committees, Option 2 is preferred, Option 1 is tolerable, and if it gets to Option 3, any sub-option other than 3(3), 3(5), or 7 is potentially catastrophic.

Given the incentive structure of the close-knit party leadership of the Democrats, the most likely outcome is therefore Option #1 followed by Option #2, followed by Option #3(7):

The DNC will appoint a replacement for Biden. It will then use all of its political power to pressure all of the state committees into appointing the same candidate. The DNC and the state committees will then use all of their collective power to bully all of the delegates into voting for the new candidate.

But just because that’s the most probable outcome doesn’t mean it’s the only possible outcome. There are signs of great discord within the Democratic Party, and some believe we are witnessing a quite civil war between Obama and Clinton. While Kamala Harris is the clear frontrunner, especially with today’s endorsement by Obama, “the opera isn’t over until the fat lady sings.”

Are there Other Factors in Play with Regard to Replacing Biden?

Yes, many. Even though I’ve gone into considerable depth here, I’m offering a simplified model. There is a different set of state laws, a different set of state party bylaws, and a different set of state case laws, for each state and territory, and I did not have time to exhaustively review them all. Who knows what might be lurking in Article X, Section Y, Clause Z of some Bylaw in American Samoa? Not I.

Even ignoring those ‘unknown unknowns,’ there’s a couple elements in play that might also affect things.

Who is Going to be the Vice Presidential Nominee?

Right now, Kamala Harris is the clear frontrunner to be the Democrat’s Presidential nominee, but it’s anyone’s guess who is going to be the Vice-Presidential nominee. Harris is generally perceived as an ally of the progressive Obama wing of the party, so if the rumors of “civil war” between the Obama and Clinton wings are true, then we might see a Clinton-friendly centrist nominee appointed in order to create party unity. On the other hand, we might also see a clear victory for the Obama wing, with a hardline progressive nominee. Or we might see a second “palace coup” by the Clintons. As I said: things could get wild.

Are there Concerns About Ballot Access?

Many voters and pundits are expressing concerns about ballot access for Kamala Harris. Such concerns are, in my judgment, overblown.

It is true that earlier this year, concerns about Biden’s ballot access had arisen in Alabama and Ohio because the states’ early certification deadlines fell before the Democratic National Convention on Aug. 19. The Secretaries of State for AL and OH had both warned that Biden might not appear on state ballots as a result.

However, on May 2, 2024, Alabama legislators changed the law to ensure President Joe Biden could appear on the state’s November ballot. Likewise, on May 30, Ohio voted to move the deadline for candidates from Aug. 7 to Sept. 1 to accommodate Democrats’ mid-August convention.

I know some Dems are still stressing about possible litigation over ballot access, but it seems to me unlikely to be a real factor. Provided the Democrats emerge from the Democratic National Convention with a nominee, there will be no issues here.

Are there Concerns about Access to Biden’s Campaign Funds?

While worries that the Dems won’t get access to the ballot are probably overblown, concerns over access to Biden’s $250 million campaign funds are a bit more real.

Proponents of nominating Kamala Harris for the Presidential race have argued that she is the only candidate who can access the $250 million funds in the Biden-Harris campaign account. They note that the campaign account was initially registered for both Biden and Harris, with her name already on the paperwork, and emphasize that the campaign has formally amended FEC filings to rename the committee "Harris for President" and declare Harris a candidate.

They’re probably right, but there are some dissenting views and potential complications. In particular, FEC Chairman Sean Cooksey suggested Harris might not be entitled to all the funds, citing regulations about returning general election contributions.

If the Harris campaign becomes concerned about campaign funds, or if Harris weren’t the nominee, the Biden campaign could (in the worst case) simply transfer the funds to the DNC or to a SuperPAC. Both the DNC and a SuperPAC could then use the funds to support the nominee’s campaign, although they would have to do so “independently” from the nominee in order to avoid violating federal election law.

However, it doesn’t seem the Harris campaign is all that worried about the FEC. The “campaign funds” issue is mostly a talking point to make her look like a more appealing candidate. The FEC works very slowly, so any complaints or challenges are unlikely to be resolved before the election. Harris currently has control of the account, so she can use all the funds long before any pending challenges.

It’s only campaign finance misappropriation if she loses.

Implications of the Replacement Process

When I began researching this article on Sunday, I had never closely examined the machinery of the Democratic Party, nor the process by which it selects its nominees, nor the statutory and case law that governs it all. If I have made errors, they are due to lack of time; in any case, I found no source that has done a deeper dive than this.

I will close out with a few thoughts on what I’ve learned in the process of writing this article. First, if Democrats are genuinely opposed to the Electoral College because it unfairly privileges smaller states over larger states, and rural locations over urban locations, then the first thing they should do is reform their own primary and convention process, because it is far less democratic than the Electoral College. The Electoral College simply apportions votes by Representatives and Senators, with no strange “superdelegates” and no secret formulas that take into account dates of primaries or percentage of voters who are Blue.

What if the Democrat elite don’t actually care about the Electoral College? What if they just want to win elections that put their chosen candidates in positions of power? They sure seem happy to have a system that’s rigged in their favor at the primary level, and unhappy it’s not rigged in their favor at the national level…

Second, the quasi-private quasi-public nature of our country’s political parties seems very troublesome. Like so many other areas of American law, what should be a simple question (“is this a private organization with freedom of association, or isn’t it?”) has been transformed by civil rights law into a minefield that demands constant doublethink. Moreover, as with all such ambiguities, it has been taken advantage of by the powerful to rig the system in their own favor. The two political parties get nearly all of the benefits of being private organizations while also enjoying a duopoly on political power as semi-public arms with access to state-funded primaries. If we ever intend to reform our nation’s elections, this is something that needs to be sorted out - hopefully by making the parties private again, as was the case for most of our country’s history, while simultaneously preventing them from exercising a duopoly in the future.

Finally, if the DNC really can unilaterally fill any vacancy in its national ticket, even when the vacancy is merely of a presumptive nominee, then staging a coup that bypasses the will of the Democratic voters is remarkably easy! All a would-be kingmaker need do is remove the nominee or presumptive nominee from the race by means of, e.g., scandal, embarrassment, intimidation, or assassination. At that point, the handful of elites who control the DNC can choose freely who will represent their party, bypassing the will of hundreds of millions of voters.

Even if replacements are filled at the state level, the fact that this power is vested into the executive committees of each state, rather than in the party members as a whole, makes it much easier to bypass the will of the voters. If the state committee picks a candidate their state members dislike, there’s little they can do about it except (gasp) vote Republican.

Contemplate this on the Tree of Joe.