Biden releases his delegates

MARY REICHARD, HOST: It’s The World and Everything in It for this 22nd day of July. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Up next, Biden off the ballot.

Yesterday afternoon, President Biden announced on social media he is “standing down” from the campaign. He says he’ll focus on serving out the remainder of his presidential term. He then endorsed Vice President Kamala Harris as his replacement on the Democratic ticket. Biden promised to speak to the nation later this week about the decision, but in the meantime, what does his announcement mean for primary voters who thought they’d chosen their nominee democratically?

REICHARD: Joining us now is Ilya Shapiro. He’s a legal scholar and is a senior fellow and director of constitutional studies at the Manhattan Institute.

Ilya, good morning, I know you’re at home right now.

ILYA SHAPIRO: Good to be with you again on this emergency basis.

REICHARD: Well, we've been waiting on an announcement like this for some time, but President Biden insisted he was going to see this campaign through. Where were you when you got the news and did anything about it surprise you?

SHAPIRO: The betting markets were all over the place, day by day. You know, Biden was favored, Harris was favored, all over the place. And it's, remember, this is still the same week of the attempted assassination the RNC, the nomination of J.D. Vance to be the Republican vice presidential nominee, I mean, just craziness all over the place. I was in the air. I was I was flying back from from from Utah, back home to Virginia, and logged on to, I think I actually it was your email that tuned me to something was going on, because I was, I was working on a brief and not hadn't checked my email for half an hour. But there we go.

REICHARD: Well, everybody's wondering what happens to the delegates that are already pledged to Biden?

SHAPIRO: They are free. They can vote for whomever they want. They are the selected delegates for the Democratic National Convention. They already had an out. There was some lawyering going on. Per DNC rules, they could vote for, they had to vote for Biden, if they can do so in good conscience. Well, that's not an issue anymore. Now they're free to vote for whomever, and it looks like there's going to be some sort of blitz primary, probably not an Aaron Sorkin style thing, where you have Oprah moderating some Zoom, and then Taylor Swift moderating some Zoom and all the rest of it, right, President Jed Bartlett, Martin Sheen, you're not going to do that, but there's probably going to be some sort of soft campaigning. I don't know how that's going to look. I don't think the Democrats know what that's going to look like. Joe Biden, of course, endorsed his VP, Kamala Harris. Obama did not, and the Clintons endorsed Harris. That's where the big players are so far. We'll see where, say, swing state Senate candidates come down on all this, because at last I saw she was polling worse than Biden was against Trump. So we'll see what that goes but they are not bounded. The only limitation, and this might be your next question, is that certain states have deadlines for ballot access, and so that was already going to happen for Ohio, and I believe Washington State, both of those were going to be before the physical DNC Democratic Convention. Now they might do that with all the states, just the way the machinations work.

REICHARD: Are you aware of any historical precedent for this?

SHAPIRO: I mean, the closest thing is LBJ in '68 saying he will not seek and will not accept the nomination of his party for reelection. That was earlier in 1968 and that was not quite in our modern era of primaries and all of that, there were non-binding primaries and things like that. But there's, you know, with modern campaign finance rules, modern ballot access rules, nothing like this. We're on, running on open field. I mean, you know, we can, you know, lawyers can say certain things, like, for example, it's almost certain, not 100% it's never been tested, but all of that money, seemingly, like 90 something million dollars that are in the campaign coffers for Biden-Harris can go to Harris if she's the nominee. If she's not the nominee, then it has to, has to go to the DNC, maybe a Super PAC. There's some, some complications about these sorts of things, but that is certainly one consideration that the delegates will be looking at.

REICHARD: Some say party leaders can’t simply replace Biden on the ticket. Earlier this year, analysts at the Heritage Foundation laid out a strategy to issue legal challenges if Biden withdrew and party leadership replaced him. Here’s Mike Howell from a press conference back in June.

MIKE HOWELL: There’s not a political exception that if you've been trying to cover up the fact that your candidate's been declining rapidly. That doesn't mean you just get to supersede all the election integrity rules that exist throughout the various states, and so our role as a watchdog is to make sure that those are applied appropriately.

Ilya, you already mentioned ballot access rules. Are there other legal hurdles the Democrats might face selecting Biden's replacement?

SHAPIRO: Well, to get back to what you were saying earlier, the you know, I don't see how any Republican or other challenges would work because Biden has not yet been formally nominated, so there would have been other legal considerations if he had withdrawn after being formally nominated. Everything would have worked differently, except for the campaign finance rules, I think. But now we don't have to worry about that. You know, there's political arguments to be made about the party that wants to advance democracy is going to ignore all those primary votes, and Harris was in on the cover-up about Biden's mental state. That's, you know, that's going to be litigated in the in the political space, but legally speaking, you know, the Democrats have not nominated Biden by any stretch of the imagination, legally. So there's there's no problem with the delegates when they take their formal votes to nominate whoever gets a majority under under DNC rules.

REICHARD: What about this? If Biden is unfit to run for reelection, what does that say about his fitness to be president right now?

SHAPIRO: Well, that's the parlor discussion, certainly. There's no legal ramifications to that, either. I don't think it necessarily follows that if you feel like you can't run for reelection, that you have to resign right away. Again, talking about LBJ, he didn't resign right then, although he was very unpopular. Again, a political argument. So Republicans are already making the argument that I saw a statement from Mike Johnson, the Speaker, saying, "If Biden is not competent to run for reelection, how is he competent to serve as president for six months?" And that's a valid point to make, but it's not necessarily the case. Maybe he feels that he can serve it out, and he has, you know, he's declining, he recognizes that, but he's okay now, and at this point, at least, who knows what he's going to be in 3, 4, 5 months, feels like he doesn't need to to resign. And there doesn't seem to be the kind of pressure from Democratic stakeholders on him to resign as there has been this drumbeat to get him to withdraw from the reelection campaign.

REICHARD: Can you speak to the difficulty the Democrats really brought upon themselves by putting identity politics ahead of merit? I mean, Kamala Harris's list of accomplishments as VP is pretty thin, but now that same identity politics is tying them to someone who is unpopular even within her own party.

SHAPIRO: Yeah, I think I have about 90% confidence that the nominee will be Kamala Harris, simply because not giving her the nomination is an admission that she was originally picked for the number two slot on something other than merit, and the Democrats are not going to publicly show their hypocrisy in that way. You know, it's, she hasn't helped her cause in office. It's not like she's really, you know, she was thought of as being a weak politician or a weak, weak stateswoman or what have you, but as VP, she's grown into office. Not at all, if anything, she's shown that her detractors were right. But again, because of this identity politics that controls the Democratic Party, it's very hard for these delegates to deny the first woman of color presidential nomination.

REICHARD: Any other issues that are top of mind for you this week?

SHAPIRO: I mean, I'm, you know, mostly going off the top of my head and based what on what law professors I respect have already tweeted out about things. So I'm kind of like studying, studying the experts and things like that. But I think legally speaking, that's all we have now. If it's not Harris, then there are going, there's going to be major litigation over that, that huge pot of money. And one other thing to note, people think that, oh, well, now that, if it's Harris, let's say, not only do they get that pot of money, but she'll be able to fundraise, because of a fresh face, donors didn't like Biden, etc. Donors have already maxed out to Harris, arguably, because she was part of the Biden-Harris for America campaign. So there's no doubt going to be litigation over maximum donation limits to her, if the same donors have already maxed out to Biden-Harris now want to give more money.

REICHARD: Ilya Shapiro is a legal scholar and is a senior fellow and director of constitutional studies at the Manhattan Institute. Thank you for your time.

SHAPIRO: Thank you. Take care.

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