Preet Bharara:

From CAFE and the Vox Media Podcast Network. This is a special edition of Stay Tuned. I’m Preet Bharara. President Joe Biden has bowed out of the presidential race, leaving the country in uncharted election law territory. What kinds of legal challenges could Trump supporters bring and how meritorious might they be? And if Vice President Kamala Harris becomes the presumptive democratic nominee, does she inherit the Biden campaign’s war chest?

To help us understand these issues, I’m joined by Rick Hasen, a law professor at UCLA School of Law, and the founder of Election Law Blog. And Joyce Vance, former US attorney, and my CAFE Insider co-host. And in an exclusive bonus for members of CAFE Insider, Joyce and I discussed the resignation of Secret Service Director Kimberly Cheatle after her testimony before the House Oversight Committee, relating to the failed assassination attempt on former President Donald Trump. Professor Rick Hasen, welcome to the show. It’s good to have you.

Rick Hasen:

It’s great to be with you.

Preet Bharara:

So Joyce and I have done a little bit of discussion on the show previously about some of the legal implications that arise from the interesting election cycle that we’re having that just got a lot more interesting and nutty. So I’ll start, and then Joyce, you should chime in with questions as well. So now Kamala Harris is not the nominee yet, Biden is certainly not the nominee yet, and yet we have begun to hear rumblings about legal challenges, no surprise, from the Republican side and from Trump supporters.

What could possibly be the basis for a legal challenge in any state or federally when neither Biden nor Kamala Harris has been nominated formally at their Democratic National Convention?

Rick Hasen:

Right. This is a good point. There’s no replacement of Joe Biden because Joe Biden was never the nominee. He was the presumptive nominee. So I think we want to distinguish between claims that there’s some replacement of a candidate which have no basis at all for anything and claims that the Democratic choice might come too late for candidates, whoever the candidate is to get onto the ballot in particular states. And so to understand this, you just have to go back a little bit to the fact that we have a decentralized election system. Every state has their own particular rules about ballot access, and these states have different deadlines for when information has to come in.

So there are a handful of states where because the Democratic convention is so late, there is a potential issue of a conflict of time. Which is why, or one of the reasons why Democrats were talking about doing a virtual conference, a virtual roll call vote over Zoom or something that would give a chance to have the official nomination happen before August 7th, which was seen as the earliest possible date. Now, I don’t think that’s a real deadline, but at least if they went August 7th, it would take away the chance of even frivolous litigation involving the deadlines for getting this information in.

Joyce Vance:

So Rick, courts generally construe these sorts of state rules in a way that favors ballot access for serious candidates from major political parties. And I think your analysis is pretty clear, right? Biden was the presumptive nominee, not the actual nominee, hence no legal problem. My question is this though. Would Republicans, say in some swing states, be able to go to court and tie things up, challenge matters, make it muddy, maybe even do this thing that’s so often done to voters, that’s a sort of subtle form of suppression, right?

It’s going to be difficult for you to vote. Your vote might not count, so you might as well stay at home. I’m wondering about this possibility of using the legal tactics for political purposes as opposed to for legal success.

Rick Hasen:

Well, I do think that there was a primary political purpose for raising the issue of a Biden withdrawal, which was to discourage him from withdrawing and claiming that there was going to be some kind of legal problem. In fact, you heard some people on the left making the argument to those who wanted to keep Biden. So I think there was a political purpose. I’m not so concerned that litigation would tie things up for too long. And the reason is this, when it comes to ballot access, these cases are on a rocket docket. They’re super expedited because election administrators need to know ballots need to be printed.

You need that decision a couple of months before the election. In fact, under a federal law that protects military and overseas voters, ballots have to be out at least 45 days before the election. So this couldn’t drag on and on. So I’m not worried about that. I do think that the lawsuits could serve a different political purpose today, which is to somehow claim that this is an illegitimate process by which Biden, the presumptive nominee, was replaced with Harris or someone else. I expect that there’s going to be some lawsuits related to the money, which is a separate issue.

The money that Harris is going to want to tap, that was raised by the Biden-Harris team. So I’m sure there’ll be some things that are filed, but I don’t think that they will really muck things up for November and they’ll actually have to be resolved sometime in August.

Preet Bharara:

What are the particular issues that we’ve been hearing about out of Ohio, it’s one state and out of Washington state? Is there anything more troubling or concerning about those states rules than other states?

Rick Hasen:

If you’d like to get into the weeds, I can explain each one of those.

Preet Bharara:

We have listeners that likes the weeds.

Joyce Vance:

We like the weeds here.

Rick Hasen:

So this will get really weedy. There are different issues. So here’s what happened in Ohio. In Ohio, they initially had a deadline of August 7th. The Democratic Convention was late, I think, because they didn’t want to step on the Olympics. That was probably the main reason. And the Secretary of State there, Frank LaRose, put out a warning months ago and said, “Hey, Democrats, you’re too late. You better do something.” Which is why Democrats started to talk about having this earlier vote, but also the Republican governor, Mike DeWine said, “We’re not going to have a situation where Democrats are not going to be able to vote for their preferred candidate on the ticket.”

And he pushed legislation in the state. The legislation passed. It was somewhat controversial because it was tied with some other things that Democrats didn’t like in that legislation, but the legislation did pass. But it has an effective date of September 1st. It extends the deadline to September 1st, but it doesn’t take effect until September 1st. And so some were arguing that, well, maybe the state would change its mind, or someone would claim because it’s not officially enacted until September 1st that there’s this window and Democrats couldn’t name a nominee. I think that argument is very weak in part because there are tremendous reliance issues by Democrats.

You have both the governor and the Secretary of State saying that the new deadline is September 1st. That information went out to all of the state and local election officials who have to prepare the ballots. And so there’d be reliance issues on top of the issue that Joyce already mentioned. That when there are constitutional questions about ballot access, the courts tend to side with major candidates who want to get on the ballot. I think there’s a kind of estoppel argument that would work here. So that’s why Ohio, I am not really concerned about the August 7th deadline given the representations that have come from the state.

The issue in Washington state is somewhat different. Washington state also had an early deadline. That deadline was extended not by the legislature passing a new statute as happened in Ohio, but by administrative determination, and apparently this is fairly common for election administrators in some states to have the capacity to extend the deadline. And ordinarily that would be no big deal. But let’s say you were litigious and you wanted to challenge things in a place like Washington State, you could say that only the legislature has the power to extend the deadline. We’ve heard this argument before, I’m sure you’ve talked about it on your show.

It’s this so-called independent state legislature theory. This is the case, Moore versus Harper, that the Supreme Court decided in 2023. The court didn’t embrace the kind of muscular version of that theory, but it did say that a legislature’s power to set the rules for federal elections cannot be arrogated by state courts and presumably cannot be arrogated by state election administrators. What arrogated means is nobody really knows quite yet because we haven’t had a follow on case, but that would be the technical legal theory. Again, I think it would be a long shot.

And if it’s Washington State, which has a democratic legislature, they could always come in and pass a law if they needed to, to extend the deadline. So I don’t think this would be a real impediment, but as Joyce said earlier, that could muck things up and provide a basis for at least some uncertainty for some period of time in that state.

Joyce Vance:

As long as we’re down in the weeds, Rick. Can I just go back to something that you mentioned briefly and ask you to explain for our listeners how it impacts this whole issue of timing and when ballots have to be printed? Because you talked about UOCAVA and military ballots, which have to go out early. Help us understand how that impacts the whole process.

Rick Hasen:

So the procedures, just the nuts and bolts of how ballots get produced, it’s really complicated. We don’t conduct one election or even 51 elections. We conduct something like 10,000 simultaneous elections in the United States. You think about when you go and vote. Here in California, the ballot could run for dozens of pages. There are federal races, there are state races, there are local races, there are ballot propositions on the statewide level, on the local wide level. Things have to be translated into multiple languages in many places under a provision of the Voting Rights Act.

Ballots have to be made available so that they could be used on different systems. And as you mentioned, there’s a federal law UOCAVA that requires that ballots be available to overseas and military voters 45 days before. And we’ve had lots of situations where there’s some fight over ballot access over how someone should be listed on the ballot or whether a candidate has qualified or not. And the courts tend to view the UOCAVA 45-day deadline as a drop dead date. And so if you’re talking about an election in early November, you’re talking about mid-September as a time that everything needs to be finalized.

And so even though our elections are decentralized, there are certain federal laws that take precedence, including UOCAVA, including the Voting Rights Act and its translation requirements and things like that. And so those become hard deadlines that have to be followed, and it’s extremely rare for things to be changed when we get closer than that period of time.

Preet Bharara:

There are lots of legal arguments that are being mumbled about, but there’s a rhetorical argument and a sensational word that’s being used that is some people on the Trump side are saying that Biden’s withdrawal and likely replacement by Kamala Harris is nothing short of a coup. I’m going to ask you a very leading question. Could you explain to our listeners why that’s an idiotic argument?

Joyce Vance:

Preet, I think that that was a very anti-democratic way to phrase the question.

Rick Hasen:

In Slate, I called it ludicrous. And I also said that it’s an argument that’s full of chutzpah, to use a technical legal term. It is not a coup. And let me explain why. When people go to vote in a primary for a political party’s candidate for president, they’re voting for delegates, and those delegates go to a convention. The party’s rules talk about how bound the delegates are to follow the wishes of the candidate. And the Democratic Party’s rules essentially say that you’re supposed to follow the candidate that you are pledged to. Lots of Biden delegates, but unless you can’t do so in good conscience.

And they also have rules for what happens when candidates withdraw from the ballot. So what you might at least loosely call a coup, or at least anti-Democratic small d democratic, let’s say that Joe Biden was steadfast and said, “I’m not leaving this race.” And a bunch of party leaders got together and said, “Even though most of these delegates are pledged to Joe Biden, they should vote their conscience and not vote for Biden. They should vote for someone else.” Then I think you could make an argument that there’s something anti-democratic about this process. However, just like if a candidate dies, a candidate that’s withdrawn is no longer in the running.

And so the purpose of the political party and the whole reason we have these conventions, rather than just have some mechanical counting of who’s won each primary, the reason we have conventions is to deal with these kinds of situations. What are the contingencies? And so the argument is that this is the process working. It’s not the process failing. When the candidate has withdrawn, how do you go to the next candidate? And I should add that of all the candidates who might be chosen in Biden’s place in terms of against small d democratic, Kamala Harris appears to be the most legitimate of those candidates because everyone knew that when they were voting for Biden, they were voting for the Biden-Harris ticket.

Everyone knew that if something happened to Biden, that Harris is the understudy or the stand-in who comes in place. And Biden, of course, has endorsed Harris. And so I think the best word is gaslighting here. Because we saw an actual attempted coup in 2021 January 6th and what happened at the US Capitol. This is not like that. This is not trying to use violence and intimidation to stop a democratic process. This is a democratic process that is actually working and following the rules.

Joyce Vance:

So I think that that makes great sense, and I suspect we’ll hear a lot more about that. The argument is going to be that Joe Biden was forced out and that that’s anti-democratic. And for any number of reasons, that’s just a silly argument to make at this point in time. But I think where folks will go next is to the money. And Preet and I had taken a look at the law here and concluded that Kamala Harris could use, and in fact was probably the only one who could use the Biden-Harris War chest. Do you agree? Did we get that right?

Rick Hasen:

I certainly agree that no one besides Harris would even have the chance to use that money. So let’s say that Biden had withdrawn, Harris was not running, and it’s someone else who is the nominee. In that circumstance, the limits on candidate to candidate transfers are quite low, just a few thousand dollars. And so that money would have to either go to the Democratic National Committee or another Democratic political party committee potentially to a Super PAC, or the account could be converted into a leadership pack or something like that. And this money could be used to support the candidate, but it wouldn’t be able to be used in coordination with the candidate.

The fact that it’s Harris means that she was jointly listed as a candidate on this committee. And most campaign finance lawyers that I’ve been in contact with agree with you that this money could be used by Harris. In fact, the Campaign Legal Center campaign Watchdog Group issued a statement. They had done an analysis. That’s what they had concluded as well. One of the commissioners on the Federal Election Commission issued a statement on Twitter saying the same thing. Now, there are some Republican election lawyers who’ve said that Harris can’t access this money, at least not yet.

And the leading person there is a person named Charlie Spies, who is a Republican election lawyer who at one point was working for Trump. He had an op-ed in the Wall Street Journal making this point. I don’t think most people agree with him, but what I certainly expect to happen is that if Harris tries to access the money, which I expect that she would, assuming she’s the nominee. That there will be a complaint filed with the Federal Election Commission and the Federal Election Commission moves at a snail’s pace. It often divides along party lines.

We’re still getting resolution of issues from the 2016 election. So I don’t think that it would legally mean anything until many years after this election. But it will again, provide political fodder for Trump or others to claim that Harris is violating campaign finance laws and say, “Look, I was accused of violating campaign finance laws and look, I was prosecuted for that. I could be put in jail for that, and Harris is just as bad.” So I certainly expect that rhetorical move to be coming regardless of the legal merits.

Preet Bharara:

On this money question and who is the legitimate, if anyone, heir to the money, must the Republicans go to the FEC or is there some argument that they would have standing to go to federal court, which is less deadlocked usually as a forum?

Rick Hasen:

Sure, and I don’t see… Usually the way that this works is that cases are brought to the administrative agency, which is the Federal Election Commission. When do campaign finance issues end up in federal court? Typically, either there’s a challenge to a rule or something that’s not what’s going on here or someone has been found to have willfully violated the law. The FEC could refer the case to a US attorney or a US attorney could pick up one of these cases and try to prosecute it. This is a slow moving process. What you’re talking about would be someone going to court seeking some kind of preliminary injunction to try to enjoin Harris from using the money.

I’ve never seen a case like that. Campaign finance regulation does not generally happen in real time through the federal courts. That doesn’t mean someone won’t try it. But then I think we’re going to get into questions under the Administrative Procedure Act and the permissibility of federal courts having jurisdiction over such a question. Does that mean that there’s not some federal judge somewhere maybe in the heart of Texas who might be willing to issue an injunction or something like that? It’s possible, but as I said, I’ve never seen a case like that, and I don’t think that that would be procedurally proper to be doing something like that.

Joyce Vance:

I want to push back on that a little bit though, because we’ve seen a lot of hat things happen in the court in the last few years that have raised a few eyebrows. And I mean, as you say, it’s typically a long process for something to go to a U.S. Attorney. Why couldn’t a state District Attorney, say in Alabama, decide to indict folks on the Harris team, maybe even including the candidate herself, and just go ahead and push that forward?

Rick Hasen:

Well, there’s an issue, and this issue came up a little bit in the New York Trump prosecution, which is whether or not state election officials have the capacity to enforce federal campaign finance law, and there’s actually a statute that seems to give exclusive jurisdiction on the federal side to these questions. This is one of the reasons why I’ve always been suspicious of using the violation of federal campaign finance law as a predicate in the Trump state prosecution to turn the Trump misdemeanors into felonies.

Again, I don’t think that would be procedurally proper to be able to challenge those kinds of things. You are right in this atmosphere because all you need is an allegation, or you could say someone’s under investigation or the claims are being considered by a grand jury or even indicted. But I think that this would not go anywhere, and it would be seen as a kind of very weak political argument that would not have any legal legs to stand on.

Joyce Vance:

Well, I hope I won’t have to invite y’all down for a beer here when we go in to watch something happen in court. I wish I shared your optimism. I have to confess I don’t.

Preet Bharara:

So Rick, you’ve talked about how some of these claims are without merit. There are different degrees of lack of merit. There’s something called Rule 11 in the federal system, which allows for sanctions against lawyers who bring bad faith claims in federal court. We saw in the previous round when Trump and his allies tried to undo the election in 2020. Some lawyers have been suspended, some lawyers have been disbarred.

Are there some of these claims that we’ve been discussing that a good faith lawyer should really think hard, really think twice about even bringing in federal court because they’re so frivolous? Are there some people who might have their law licenses at stake or at least risk sanctions for making some of these arguments that we’ve been talking about?

Rick Hasen:

So I don’t think that, say the Washington State argument under the independent state legislature theory, hyper-technical argument, I don’t think that’s a frivolous argument. Probably it’s not frivolous, even though it’s exceptionally weak to argue something under this Ohio deadline because of the effective date being September 1st. There’s the slightest thing you could hang your hat on to make those kinds of arguments. I do think someone trying to use state legal process to find a criminal violation, as Joyce has suggested for use of campaign finance money.

That is probably sanctionable given that there’s a clear federal statute that says that there’s no jurisdiction for that and certainly for doing so when the legal claim itself that it’s somehow illegal is itself exceptionally weak. But I would’ve said, for example, back in 2020 when Ken Paxton, the Attorney General in Texas filed an original lawsuit in the Supreme Court trying to get the electoral college votes of Biden winning states thrown out. I thought that was sanctionable. I thought that was a legally frivolous document, and there’s been no sanction yet against Paxton.

There have been sanctions, as you mentioned, against Giuliani, Jeffrey Clark, Sidney Powell, Jenna Ellis, but Paxton has not paid a price yet for what he’s done. And it’s probably when you’re a state attorney general, harder to go after sanctions, especially in your state where you’re a very powerful officer. So I would hope that Rule 11 sanctions would be a deterrent. But like Joyce, I’m not convinced it wouldn’t stop someone who’s unscrupulous from trying to file something.

Joyce Vance:

Rick, this may be far afield for you, so feel free to push back against the question if it is. But I’m curious, as we’re talking about the money part of things and just sort of a practical question about how donations work, a lot of people have already donated to the Biden campaign. Some of them may be maxed out. Can they go ahead and donate to the Harris campaign on top of that or does one count against the other?

Rick Hasen:

Well, to the extent that she is going to be using the Biden-Harris committee as her committee, if they’re maxed out, then they should not be giving more money. And I’m sure that… I haven’t looked at how the Harris campaign is taking in their money. I imagine they’re taking it into the same account that was the Biden-Harris account. It probably still is officially the Biden-Harris account, but one of the things we know about campaign finance laws today is that anybody who wants to give any amount of money can do whatever they want so long as they’re willing to jump through some hoops.

So there are going to be innumerable other organizations that can support the Harris campaign, just like there are supporting the Trump campaign. There are Super PACs, there are state political party committees. There’s the National Political Party Committee. There are groups that are social welfare organizations, so-called 501 (c) (4) organizations where donors are not disclosed. I mean, we have such a porous system that really the only people who get in trouble these days are those who are unsophisticated and try and do things like say, “Oh, I like Biden. Here’s a maximum check for $6,600, and now I’ll do the same thing for Harris.”

I’m sure the campaign, if they’re using the same account, is going to be on the lookout for those people and tell them to direct their money elsewhere.

Joyce Vance:

I mean, I think that that makes sense, and I think that that assessment is correct. I just wonder since, and I think you correctly identify, a big part of the Trump campaign pushback is very likely to involve the legitimacy of the election. It seems like this is a good election for everybody to be really on top of their game and playing, really coloring inside of the lines on these sorts of campaign finance issues that may look small, that may typically not count, but that this year might take on, at least in terms of the narrative, some significance.

Rick Hasen:

There’s no doubt about it, especially because Trump was found guilty of felonies in part because of campaign finance violations. And this goes back to Preet’s point about the coup, anytime that Trump can turn around and try and use things that have been set against him to be used against his opponents, that’s the move that he makes every day that he’s speaking. So I fully expect that even if there’s coloring in the lines as you said, that we’re going to see these kinds of rhetorical claims being made.

Preet Bharara:

Rick, before we let you go, are there any other types of legal proceedings, lawsuits that we have not talked about that you would anticipate that will happen?

Rick Hasen:

I don’t think that related to Harris being the nominee, we’re likely to see lawsuits other than in the categories that we’ve talked about. But already before Harris became the presumptive nominee, which I think happened… All of it happened very quickly. There were a ton of lawsuits. This is par for the course, unfortunately, in the United States. I’ve written two books about this. The Voting Wars and Election Meltdown, both of which chronicle steep rise in election litigation in this country ever since the disputed presidential election of 2000 that culminated in the Supreme Court’s decision in Bush versus Gore.

So we’ve had decisions just in the last week involving mail-in ballots in Nevada. There are cases being filed over the rules for certification and the rules for voter challenges in Georgia. There are cases all over the country. That doesn’t change if it’s Harris at the top of the Democratic side of the ticket rather than Biden. Those cases are going to continue, and I expect we’ll have litigation before and through election day. And in fact, you had one of the leaders of the Trump campaign saying, “Really, it’s not election day. This is a fight till inauguration day.”

And that gives me a little bit of a chill when I think about what we saw after the 2020 election was officially over.

Joyce Vance:

Rick, this is so very helpful. Thank you.

Rick Hasen:

It was great to be with you.

Preet Bharara:

Professor, thanks so much.

Rick Hasen:

Thank you.

Preet Bharara:

My conversation with Joyce continues for members of the CAFE Insider community. In the bonus for Insiders, we discussed the resignation of Secret Service Director Kimberly Cheatle.

Joyce Vance:

I’m not surprised at all, especially after her performance on the Hill yesterday where she ducked questions and folks on both sides of the aisle called for her resignation. It seemed like she was bound to be a short timer, but the real questions that underlie this are still looming and still have to be answered, right? What went wrong? What went almost tragically wrong here?

Preet Bharara:

To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Rick Hasen and Joyce Vance.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.