Here's How It Would Work to Replace Biden Before or During the Democratic Convention

Since last week’s debate, plenty of smart people have argued that U.S. President Joe Biden must be replaced if former President Donald Trump is to be defeated and democracy protected. Among them are The New York Timeseditorial board, James Carville, David Remnick, former Obama speechwriter Jon Favreau, Biden friend Tom Friedman, pollster Nate Silver, and too many more to name. Meanwhile, a post-debate CBS News/YouGov poll shows that 72% of registered voters think Biden does not have the “mental & cognitive health to serve as president,” while only 27% think he does; 63% think Biden should not be running for president while only 37% think he should be.

Despite that, Biden’s inner circle and leading Democratic officials have been pushing back with their own version of a “big lie” that we shouldn’t believe what we saw with our own eyes, Biden just had one bad night, and he’ll be just fine. But as Times columnist Bret Stephens wrote: “The transparent problem with the president’s performance wasn’t that he debated poorly. It’s that he is suffering from serious cognitive decline, something from which there is no coming back… To those who love the president, starting with his wife, it’s time to tell him: for God’s sake, and the country’s, and his own—don’t run.”

So, if Biden is to be replaced as the Democratic nominee, how would it work legally?

If President Biden withdrew, and one or more prominent younger Democrats threw their hat in the ring, the party would undoubtedly hold a series of debates and town halls to introduce them to national voters and see who performs best under the national spotlight.

There are approximately 3,933 regular convention delegates elected in primaries and caucuses, almost all of whom are Biden delegates. In addition there are 739 “automatic” or “superdelegates” who are mostly party functionaries and elected officials for a total of approximately 4,672 delegates. The regular delegates may vote on the first ballot, and to win nomination on the first ballot a candidate must garner a majority of these or about 1,968 delegates. According to rule changes adopted after the 2016 Hillary Clinton/Bernie Sanders contest, superdelegates may not vote on the first ballot. They can only vote in the second and subsequent ballots, if no candidate wins on the first ballot. It would then take a majority of all delegates, including regular and superdelegates, or approximately 2,258 votes to win the nomination.

While regular delegates normally vote for the candidate they are “pledged” to, according to rules adopted after the 1980 primary contest between Jimmy Carter and Ted Kennedy, regular delegates are not technically required to vote for the candidate whom they are pledged to.

According to the convention rules, regular delegates being required to vote for the candidate they are pledged to is aspirational, not binding. The rules state that “all delegates to the National Convention pledged to a presidential candidate shall in good conscience reflect the sentiments of those who elected them.” Thus, if in “good conscience” one or more regular delegate no longer believes her candidate reflects the sentiments of those who elected her, she has the right under the rules to vote for another candidate whom she believes in good conscience does—it’s apparently up to each delegate to make that call. Thus, at least in theory, even if Biden stays in the race, if there’s a big enough groundswell to replace him, he could fail to win the nomination on the first ballot.

In reality, if Biden stays in the race, that result is highly unlikely. The regular delegates are picked in the first place because they are generally loyalists of the candidate they’re nominated to support. And prominent Democrats who might be viable alternatives to Biden are probably too scared of threats to their careers from the Democratic establishment to directly challenge Biden at this point.

If, however, Biden withdraws his candidacy before the convention, it becomes an open convention. As Elaine Kamarck of the Brookings Institution, who helped write the party rules, states: “About 4,000 people have already been elected to the convention. If Biden stepped aside tomorrow, several people would get into the race, no doubt, and the race would consist of calling these people and trying to convince them. It would be an old-fashioned convention. All 4,000 delegates pledged to Biden would suddenly be uncommitted, and you’d have a miniature campaign.”

Among the possible alternatives to Biden are Michigan Gov. Gretchen Whitmer, California Gov. Gavin Newsom, Kentucky Gov. Andy Beshear, Illinois Gov. J.B. Pritzker, Maryland Gov. Wes Moore, Pennsylvania Gov. Josh Shapiro, and Vice President Kamala Harris. If President Biden withdrew, and one or more prominent younger Democrats threw their hat in the ring, the party would undoubtedly hold a series of debates and town halls to introduce them to national voters and see who performs best under the national spotlight. None of these potential candidates significantly differ from each other or President Biden on the main issues, so the campaign for a successor would likely turn on personality and which one seems the most electable.

If an alternative to Biden is nominated, there’s then the question of what happens to the campaign funds raised to date by Biden. According to an email from Trevor Potter of the Campaign Legal Center, if a candidate withdraws, then the candidate’s campaign committee may transfer the funds to the national party that may spend them on the new nominee. If Vice President Harris were the new nominee, since Biden and Harris currently share a campaign committee, she would have access to all the funds in the committee. However, Biden’s campaign committee would not transfer more than a de minimis part of the funds to another candidate’s campaign committee. Another candidate would need to rely on the funds transferred to the National Committee, raise new funds, or refund the money to the original donors who could then contribute to the new candidate.

Biden stepping down and being replaced by a dynamic, younger candidate might be risky at this point. But it’s not as risky as a visibly enfeebled Biden staying in the race when over 70% of registered voters say they don’t think he has the mental and cognitive ability to serve. If an ageing relative no longer has the capacity to drive safely and might crash his car into a school bus killing dozens of children, you take away his keys.

Indeed, with so many voters dreading a Biden-Trump rematch, an exciting new candidate might well inspire a wave of enthusiasm.