On Sunday, President Biden announced that he formally withdrew from the presidential race but will stay on as president for the remainder of the term. About half an hour later, Biden endorsed Vice President Kamala Harris to be the next Democrat nominee. As part of the original Biden-Harris ticket, Harris has an approximately $91.5 million cash-on-hand advantage over any other potential candidate.
This hasn’t happened since President Lyndon Johnson withdrew on March 31, 1968, and endorsed his vice president, Hubert Humphrey.
How Will the Democrats Select a New Nominee?
The Democratic National Convention is scheduled for Monday, August 19, through Thursday, August 22, at the United Center in Chicago. Minyon Moore is the convention’s chairwoman, and Reverend Leah Daughtry and Governor Tim Walz (D-MN) are co-chairs of the DNC’s rules committee. Because Biden withdrew, the nearly 3,900 delegates who pledged for him during the primaries are now free to re-cast their votes for whichever potential nominee they want, assuming that the convention is an open one, including but not limited to previous primary candidates Congressman Dean Phillips (D-MN) and author Marianne Williamson.
Candidates for nominee must receive signatures from 300 or more delegates. No more than 50 signatures may come from one state’s delegation. To win the nomination, a candidate must receive the majority vote of pledged delegates at the party’s roll call vote, which would be 1,976 or more delegates.
The Democrats will have more than 4,600 delegates and “super-delegates” in Chicago. Normally the DNC would hold its state delegation roll call at the convention. However, it could still execute its original plan to have an early “virtual” roll call of the delegates on August 1. This plan was designed to help Biden secure the nomination as quickly as possible and likewise would greatly help Harris, whom several state party chairs have endorsed, because any potential challengers would have only 9 days to secure the required minimum of 300 delegate signatures from at least 6 different states. If the Democrats do not select a nominee before August 7, Republicans will likely sue to block the eventual nominee’s ability to appear on the ballot in Ohio; Ohio requires nominees to be certified at least 90 days before election day.
Whatever shape the roll call vote eventually takes, if a majority of DNC delegates vote for a candidate on the first ballot, then he or she becomes the Democrat nominee. The DNC’s 739 “super-delegates” do not vote on the first ballot.
If no candidate wins a majority on the first ballot, then the “super-delegates”—who are automatically seated and not pledged to support a particular candidate—may vote on the second and all successive ballots, and the process continues until a candidate gets a majority of votes.
How Could Biden Be Replaced Now?
If Biden is unfit to run for president, is he fit to serve as president for the next six months? It’s a valid question, although he might argue that his withdrawal was based on bad poll numbers and stoppage of donor dollars, not his health issues, so he is able to continue in office.
In 1964, in the wake of President Kennedy’s assassination, the American Bar Association asked John D. Feerick—who in October 1963 had published “The Problem of Presidential Inability—Will Congress Ever Solve It?” and who would later become Dean of Fordham Law—to help draft what became the Constitution’s 25th Amendment. Senator Birch Bayh (D-IN) was the amendment’s principal sponsor in Congress.
Section 4 of the 25th Amendment controls the process by which the “Vice President and a majority of . . . the principal officers of the executive departments”—meaning the 15 Cabinet secretaries as enumerated at 5 U.S.C. § 101—transmit to the Senate President pro tempore and the Speaker of the House “their written declaration that the President is unable to discharge the powers and duties of his office,” upon which the Vice President becomes “Acting President.”
The President, if he chooses to do so, may then transmit to the Senate President pro Tempore and the Speaker of the House “his written declaration that no inability exists.” The Vice President and a majority of the Cabinet secretaries then have 4 days to respond with a second written declaration that “the President is unable to discharge the powers and duties of his office,” whereupon “Congress shall decide the issue” within 21 days of that second declaration. At least 2/3 of the House and Senate must vote that “the President is unable to discharge the powers and duties of his office”; “otherwise, the President shall resume the powers and duties of his office.”
The 25th Amendment’s text does not define “unable,” “inability,” or “declaration,” nor does any statute or court case. Nor does Article II, Section 1, Clause 6 of the Constitution, which the 25th Amendment was meant to clarify and which states that, “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.”
Similar to impeachment, the 25th Amendment was designed as a mostly political process. One could reasonably posit that it presents a higher bar than impeachment because the House needs only a simple majority to impeach, whereas the 25th Amendment requires a 2/3 vote.
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