Jordan Cash is an Assistant Professor in the James Madison College at Michigan State University.
In the weeks since the presidential debate between Joe Biden and Donald Trump, the question that continues to dominate American politics is “what are the Democrats going to do about Joe Biden?” While some have speculated that the attempted assassination of Trump may “save Biden’s nomination,” an increasingly loud chorus of political strategists, commentators, and now even Democratic officeholders has publicly called for Biden to be replaced as the Democratic nominee. Even major Democratic leaders, including former president Barack Obama, former speaker Nancy Pelosi, House Minority Leader Hakeem Jeffries, and Senate Majority Leader Chuck Schumer, have reportedly raised concerns privately with allies and with Biden himself about his ability to win in November. Most recently, a new poll shows two-thirds of Democrats in favor of Biden stepping down.
For his part, the president has insisted he will stay in the race despite his attempts to reassure Democrats of his electability inspiring little confidence. Thus, the question remains: can the Democrats replace Biden as the nominee?
In a word: no. Not if Biden chooses not to step down.
If Biden were to drop out of the race, it would make the whole process easier, either by having him designate a clear successor or by kicking off an open convention. While the latter would certainly be messy—indeed, we have not seen a contested convention for a major party since the 1976 Republican Convention between Gerald Ford and Ronald Reagan—it would at least enable the party to choose a nominee it can fully embrace.
But having been unchallenged in the Democratic primaries—Minnesota Rep. Dean Phillips’s insignificant campaign and Robert F. Kennedy Jr.’s abortive primary run notwithstanding—98.8% of the Democratic delegates going into the convention are pledged to Biden. According to party rules, delegates must sign pledges to support their preferred presidential candidate and be approved by the candidate’s campaign to be “bona fide supporters” before being eligible to be a delegate. Moreover, Rule 13(I) stipulates that delegates cannot “be mandated by law or Party rule to vote contrary to that person’s presidential choice as expressed at the time the delegate is elected. This means that all of Biden’s delegates would have had to sign their support for Biden well before the primaries and cannot be compelled to change their vote. In other words, the delegates at the Democratic convention will be, unequivocally, Biden’s people, and it would be procedurally impossible for party leaders to force them to change.
Still, Democratic rules might provide openings for the delegates to exercise their autonomy in nominating someone else. Rule 13(J) of the Delegate Selection Rules for the Democratic National Convention do not strictly bind delegates to their presidential candidate, but only hold that the delegates “in all good conscience reflect the sentiments of those who elected them.” Given that what constitutes “good conscience” is not defined, some commentators have pointed out that delegates committed to Biden may vote for other possible candidates if they believe Biden cannot win. Yet to convince a majority of Democratic delegates—who, let’s not forget, are pledged to be “bona fide supporters” of Biden—to not vote for the sitting president to whom they are committed appears to be an insurmountable obstacle.
Another possibility appears under Rule 13(K), which defines the minimum criteria for someone to be the Democratic nominee for president or vice president. Under Rule 13(K), section 1, subsection a, the chairperson of the Democratic National Committee must determine several qualifications for the prospective candidate, including if the candidate is “faithful to the interests, welfare, and success of the Democratic Party of the United States at heart.” Under this rule, an opponent of Biden could argue that his insistence on staying in the race despite his lagging poll numbers, and the threat that poses to down ballot races, demonstrates that he is no longer faithful to the interests, welfare, and, most specifically, the success of the Democratic Party.
Of course, such a pronouncement would run into several problems. First, Biden’s half century of public service in high office as a Democrat during which he has almost always positioned himself at the center of the Democratic Party would make it difficult to say he does not wish for the Democratic Party’s interests, welfare, and success. From all his statements since the debate, Biden genuinely believes in his heart that he is the best person to be president and defeat Trump. To disagree with that assessment is nothing more than a matter of opinion and cannot be measured, much less proved with the kind of certainty necessary to unseat a president. Second, such unilateral action by a single individual undoing the stated and expressed wishes of Democratic primary voters would appear undemocratic in the extreme and be an extraordinary and unprecedented use of power, likely dooming the individual chairperson’s future in the Democratic Party for alienating the Democratic base.. Finally, there is the simple fact that DNC Chair Jaime Harrison has consistently defended Biden, even getting into spats with journalists on social media in defense of the president and shows absolutely no indication he would exploit this rule so unscrupulously in order to remove Biden.
In years past, Democrats might have hoped that the so-called “superdelegates”—party leaders and elected officials who automatically hold delegate status—might be able to shift the convention by voting for someone else. Following a 2018 reform of the party rules, however, superdelegates are now prevented from voting on the first ballot, meaning that if Biden is confirmed as the nominee on the first ballot, the superdelegates would never have a chance to make their will known. Of course, even if the superdelegates could vote on the first ballot, considering the dynamics of the regular delegates, it seems unlikely there would be such a major shift to deny Biden the nomination at the convention and open it up, especially with no clear alternative identified.
Making matters even more difficult, the Democratic National Committee plans to nominate Biden virtually before the actual convention, mainly in an effort to follow Ohio’s election law that stipulates candidates must be nominated by August 7th (the Democratic Convention is from August 19-22). This significantly shortens the time available to Democrats to convince Biden to drop out and find an alternative candidate who can still be placed on the ballot.
Considering the convention rules together with the politics of the moment, there is no process in place to allow the Democrats to replace Joe Biden.
Yet given the seriousness of the election, and Democrats’ real fear that Donald Trump might again enter the White House, some Democrats might be tempted to break the metaphorical emergency glass and throw procedure out the window. In other words, what if party leaders decide to unseat the incumbent president despite the rules?
Such an outcome would create serious difficulties for the Democrats.
The first problem would simply be one of organization chaos, whose ramifications could set up the candidate and the party for failure, both now and in the future. To throw out the rules, or institute new rules allowing for replacements with the sole aim of replacing Biden would destroy the organizational order of the Democratic Party and the basic order that any large organization needs to operate. In the current election, it would substantially harm the legitimacy of whoever is put up to replace Biden, as that candidate would have been foisted on the party in contravention of the rules and without anyone voting for them. It would also set a dangerous precedent for every subsequent Democratic convention: that no matter the outcome of the primaries, no nominee is truly safe from having the rules changed at the convention and losing the nomination. It would, in a way, be a return to the system which had operated before the McGovern-Fraser Commission reforms of 1972, where no matter what happened in the primaries, only the convention mattered. It was that disconnect between regular voters and the convention delegates that contributed to the protests and riots outside the 1968 convention in Chicago and eventually spurred the creation of our modern primary system. Democrats certainly wish to avoid such a repeat of that convention in their 2024 convention in Chicago, as such an outcome would destroy the stability of the Democratic Party as an organization and eviscerate the trust rank-and-file Democrats have in the party itself.
The second problem is one of perception. While Democrats appear panicked now, ditching Biden would exacerbate that panic and signal chaos within the Democratic Party with only months to go before a presidential election. Such a signal would likely dispirit some Democratic voters, driving down turnout and potentially having a substantive effect on down ballot races. Given that Democratic candidates down ballot have been outperforming Biden in the polls, Democrats would want to mitigate the damage of a Biden candidacy, not let it spread to other races. Indeed, fear that Biden might lose Congress for the Democrats has been one of the major arguments cited by those calling for him to step aside.
Beyond signaling a party in disarray, such actions would also conflict with Democratic messaging. For party elites to negate the decision of Democratic primary voters would be counter to one of their main lines of argument against Trump: that the former president is a threat to American democracy and that only Democrats are able to save it. Undertaking what would be a kind of palace coup against the legitimately elected Democratic presidential nominee plainly contradicts such messaging and would give Trump an opening to further his populist message against what he might portray as shadowy Democratic elites secretly conspiring and making deals in the proverbial backroom.
The more serious problem, which is present even if Biden drops out of the race, has already been pointed out by some commentators and Republicans: If Biden is not suitable to be the Democratic nominee, how can he be fit to continue serving as president? Forcibly removing him from the ticket would almost certainly trigger calls for him to resign, or to force him from office via the 25th amendment. That, of course, has its own set of problems. First, that the vice president and a majority of the cabinet would have to initiate it, a prospect that is not likely to happen given the cabinet are all Biden appointees and loyal to their boss. While Vice President Kamala Harris might wish to replace Biden, she has been loyally defending the president in the wake of the debate, and is in the difficult political position of having to support the president while also hearing other Democrats like Michigan Governor Gretchen Whitmer and her own in-state frenemy California Governor Gavin Newsom promoted as better replacements. Yet even if the vice president and cabinet took the extraordinary step of invoking the 25th Amendment, the Constitution allows the president to protest, and if the dispute persists, then it is left for Congress to decide, with a two-thirds majority needed for removal. Given various political interests and ambitions at play (Republicans seeing blood in the water and not wanting to make things easy for Democrats, Democrats in upheaval over the change, prospective Democratic presidential contenders potentially willing to let Biden lose so the path is clear and they can run as a change agent against a second Trump administration in 2028) such a situation again seems unlikely.
Were Biden to be removed, either by his own choice or through being forced out, it is still unclear who would take his place as the Democratic nominee. Harris is the obvious choice. The primary role of the vice president is to take over for the president, and that same logic would apply to the election as well. Indeed, there is even a constitutional basis for it. Under the 20th Amendment, if anything happens to the president-elect before he is sworn in, the vice president-elect would take his place. Such a logic might reasonably apply before the nomination is formally set as well. Simply moving Harris up would also make it easier for the campaign to keep the campaign donations that were made when Biden was the presumptive nominee. Finally, from a political standpoint, attempting to replace Biden with anyone other than Harris would put Democrats in a difficult position. For how could they refuse to nominate the first woman of color to serve as vice president in the history of the United States? Especially when the core constituency of the Democratic Party is black women? Notably, however, Harris tends to poll about the same or worse than Biden in head-to-head match-ups against Trump.
All this speculation, however, is only necessary if Biden chooses not to step down himself. Yet we should not be surprised that he has not stepped aside as of this writing. Indeed, given his position, it would be unusual if he did. The framers of the Constitution fully expected that the presidency would appeal to the most ambitious men. Men whose “love of fame” would drive them to extraordinary lengths to achieve distinction. Indeed, Alexander Hamilton argues in “Federalist 72” that providing an outlet this driving ambition was a key reason for enabling presidents to run for reelection in the first place. George Washington’s greatness came from the fact that he chose to surrender power, and such virtue was widely acknowledged as rare and not something that could be relied on in Washington’s successors.
Biden and Trump both fit the mold of men who have a driving love of fame. Biden first ran for the presidency 36 years ago, failing twice and only succeeding on his third attempt. As such, we should not be surprised when he refuses to step down despite an embarrassing debate performance and calls from the media and his fellow Democrats. To draw parallels with other presidents in similar situations, Biden likely sees himself more akin to Harry Truman in 1948, running behind but ultimately destined for a surprise victory, than to Truman in 1952 or Lyndon Johnson in 1968, forced to withdraw and allow others to run in his place. The greater the obstacle, the greater the glory when it is overcome. And when the obstacle is Donald Trump, who Biden already defeated once, it may be easy to convince himself that he can do it again. To back down after a single debate with Trump would not only be humiliating, but tarnish Biden’s reputation as the man who defeated Trump and saved American democracy. Indeed, such an outcome might bolster Trump as he could claim he defeated Joe Biden before a single vote was even counted.
While parties are not listed in the Constitution, they nonetheless serve constitutional functions, one of the most important being to narrow the number of candidates for president and help ensure that the winner achieves the office with a broad base of support from the American people. Right now, the uncertainty surrounding Biden is preventing the Democratic Party from fulfilling this constitutional function. Until Democrats finally determine their nominee, the chaos around their party will continue to hurt them and make it that much easier for Trump to become the second president in American history to successfully return to the White House after previously losing a presidential election.
There is no good or easy solution to the Democrats’ “Biden problem.” The likelihood that they can replace Biden without the president’s consent is practically non-existent and packed with many more risks and uncertainties. Yet as time goes on, and the pressure mounts, it is possible that Biden may yet step down. As of this writing however, the only answer to “how do you solve a problem like Joe Biden?” Is “you can’t, only Joe can.”