#px3

I do not love the way that Harris became the nominee. However, I don’t love it not because I think it's wholly illegitimate or undemocratic. Her not having directly faced voters in a primary at the top of the ticket is not wholly undemocratic.

No, not because of the super lame excuse that she was on the ticket as VP.

That’s why she’s the legitimate nominee from a legal and party rules standpoint. Because party rules and election laws ensured that it couldn’t play out any other way.

At least not without Biden having dropped out much, much earlier.

The principle reason for this is actually fairly reasonable - if you accept our electoral machinery “as is” which I do not encourage you to do so but you go to war with the electoral process you have not the electoral process you want. We absolutely should debate reforms after this cycle because what Biden did was undemocratic and unconscionable - it's just that Kamala Harris should not be punished for accepting reality as it is rather than waving a wand and remaking the entire process to be more in keeping with what you or I or Ezra Klein would want.

The principal reason that it had to be Harris is that there is no ironclad, bad faith actor resistant mechanism to spin up a brand new primary election after one is already essentially complete. 

The reason for this is two fold. First is that because this is a state by state process rather than a national one, each state sets conditions for qualifying to be on the ballot and sets deadlines for fulfilling those conditions so there is adequate time to plan the election: recruit and train staff who run the voting sites, print ballots, make sure voting machines are working properly - and whatever else.

There are 50 Democratic Primaries, not 1 and Democratic Party rules can’t legally bind actual lawmakers

This is where it gets weird! Because we are told the parties are essentially NGOs - private clubs - that make their own rules for who gets to be a candidate or not and when primaries are even held. 

Which is true! 

Sort of. 

State elected officials are not beholden to the parties and its state governments who are actually operating the voting process itself. This how you get situations like New Hampshire very nearly not having its delegates seated at the convention because it held its primary election earlier than the position in the schedule dictated by the Democratic National Committee. 

So the Democratic National Committee attempted to force New Hampshire to vote later while New Hampshire has a state law mandating that it have the first primary election. Which the state technically has the right to do because the DNC is not actually a federal authority, it’s a private organization remember? But the DNC also threatened to refuse to allow New Hampshire’s votes to count since the DNC decides how to pick its candidates for President.

Now this story has a happy ending because New Hampshire’s delegates were seated, but only after the New Hampshire state Democratic Party (a legally autonomous but theoretically subordinate entity to the Democratic national party) held its own separate vote later in the election cycle which did count. Incidentally Joe Biden was the only one on the ballot. 

So technically because it felt it should have more authority than a state elected government, the Democratic National Party caused New Hampshire to run an election that didn’t actually count in an act of ill advised pettiness and micromanagement (and in what was widely assessed to be an attempt to minimize the chances of any of Biden’s challengers from getting any momentum by having the first few elections in states where Biden was unpopular with Democrats - see also the saga of Michigan & Uncommitted.)

Manufacturing Irregularity and Illegitimacy

Now I know what you’re saying, how does this anecdote help the argument that Harris’ candidacy isn’t undemocratic and illegitimate?

It sort of doesn’t, but I also want you to understand from a practical standpoint the problems that Biden caused by running again and then waiting practically until it was almost impossible for him to get his name off the ballot to drop out. The complexity and dubiousness of the primary process to begin with is why the only smooth and legally sound transition was to Harris.

The Democratic National Party could not force New Hampshire’s Republican controlled legislature to change its law requiring New Hampshire to hold its election first in any Presidential primary election. I am not defending the DNC’s attempt to threaten a state government into obeying its election calendar. I’m also not defending the New Hampshire legislature and its quest to go first come hell or highwater.

But do you think New Hampshire and other states would acquiesce to holding a “do over” primary for the Democrats? Do you think maybe they might engage in some legal chicanery? 

Let's say Republican controlled states refuse to allow a “do over” and the state parties hold privately funded and organized contests like New Hampshire did to get its delegates back. Might this provoke legal wrangling over whether the new nominee should be allowed ballot access to the general election? 

I’m not personally aware of any laws stating that the winner of a primary election in any particular state or nationally has to be the person who goes on the ballot for that party in the general election - that would be silly for a lot of reasons. Which is why Harris is able to become the new Democratic party nominee in the first place. Yet it's not inconceivable that some states might rush to try to change their election laws in the event of a more chaotic process. 

There were threats made and speculation of that happening even with Harris taking over as candidate. These threats ultimately don't seem to have manifested real world action, but don’t forget that in 2020 Trump went to court almost 80 times to dispute this or that aspect of the election process. It's now in our culture that the law is a tool you can wield to try to stop election results you don’t like or, failing that, poison the results so that while the election result may be honored legally, tens of millions of people wind up feeling like something was wrong.

Again, I am not defending our election methods, I am describing the context in which candidates are selected.

Trying to defend elections and voters against fraud

The second reason that there is no mechanism for a primary election “do over” is money. As I mentioned, the Democratic Party kinda, sorta jerked around New Hampshire voters and the state government. It engaged in a game of chicken wherein if New Hampshire’s Republican controlled legislature didn’t change its laws to delete the requirement that it go first in any Presidential Primary, then the delegates from that election wouldn’t be permitted to cast New Hampshire’s votes. Paid election workers had to be paid for their efforts, ballots had to be printed, voters had to vote. Time, effort, and money was expended for a contest that didn’t count.

Now imagine asking everyone to do it again.

What should have happened to the money the Biden - Harris campaign raised when Biden suspended his campaign is probably the critical question that I would pose to people who are cranky about Harris being “annointed.”

According to Forbes this is the scenario: 

Harris can use the money because she is part of the campaign. The VP can use the money if the President steps aside. There’s paperwork involved.

Now if being the VP should be disqualifying for automatically getting the money and the campaign machinery, this is absolutely a conversation we can have! 

Now worthwhile questions to ponder though are should this actually be disqualifying or should we care more about who the VP nominee is? Because we are technically voting both for a candidate and the person who will step in if, after winning, the President dies, is incapacitated, or resigns because of some sort of insurmountable scandal. All of which have historical precedents. Although it's possible Nixon will be the last President ever to resign because they committed what are empirically understood to be crimes and the general public was not okay with this.

If we think that the VP pick shouldn’t inherit the campaign operation and money if the Presidential nominee simply drops out rather than drops dead (and maybe not even then) then we do have to have the conversation of what happens to the money and the campaign operation? If the campaign has to be shut down and the balance of the money refunded to donors, then are we in effect handing the election to the opponent of the ex-nominee if this is a major party candidate we are talking about?

I think the argument made by many pundits in March of 2024 when Ezra Klein became the most prominent voice calling for Biden to drop out and the Dems to hold a modified Primary is that “no, the penalty from having to dismantle and rebuild the election machine around a new person is outweighed by lots of factors: 

The media taking to novelty and drama like catnip. 

The attention economy running wild. 

And what I think we can now describe as a “sugar high” that comes from replacing a certain to fail candidate with someone who, while not descended from heaven free of scandal or questionable policy stances and affectations, at least represents a different set of pros and cons and changes how we talk about the issues and candidates.

But that was also March. March!

Biden waited to drop out until July. When all of the Primaries had been held, all of the delegates awarded, and he was cruising to the nomination more or less solely on the basis that nobody who could give him a serious fight was willing to risk throwing down with the sitting President in a year where said President was up against Trump. If Mitt Romney was the Republican nominee, all bets are off. The Primary might have been a blood sport with Mitt Romney on the opposing side, but with Trump as the presumed nominee the risk aversion among Democrats was incredible and tragic to behold.

But it was also their risk to not take. You can’t just make people who could theoretically give the incumbent President a serious fight actually do it. And the rub is that I don’t know how to rejigger any sort of laws or formal Democratic party processes to make it so that running and losing is consequence free. 

I don’t know how to encourage more competitive elections when there’s an incumbent, other than a political culture that is A LOT thicker skinned and doesn’t gripe perpetually about being robbed when voters don’t do what they want. Why yes I am still irritated by a conversation with a friend who simultaneously thinks Harris is illegitimate because “nobody voted for her” but still to this day thinks it would be fine if a candidate won a primary with less than a majority because the liberals collectively had more votes overall but were splitting them too narrowly and that it was dirty pool for them to drop out and consolidate the vote.

Dropping out in July

So what do you do if the presumed nominee who (technically) won an (uncompetitive) primary in July?

In an ideal world the candidate should have seen the writing on the wall and never ran.

Failing that, they should have dropped out before the voting started.

But if they don’t?

There is no explicit mechanism to force someone out of the race before it’s started. There are all sorts of shenanigans that can be played with funding opponents, withholding funds, creating blacklists of people who aren’t allowed to work on campaigns if they work for person XYZ (ask AOC about the DNC kneecapping candidates who primary incumbents by trying to scare campaign staffers with “you’ll never work in this town again.” It was a whole thing.)

Despite the presumption of being dastardly oligarchs unaccountable to voters who just do what they want, the DNC actually can’t keep people from running as Democrats. Hell, RFK Jr. started as a Democrat. Tulsi Gabbard, Joe Manchin, and Krysten Sinema all have run as Democrats. Anybody can be a Democrat if they check the right box on a form. 

Same with the Republicans. The Republican establishment pulled every lever they had to try to stop Trump from being the nominee in 2016, but they didn’t have a big red button that says “you’re not a candidate anymore. Kick rocks” if that person can pull together the money, attention, and votes to be a viable candidate in the face of establishment opposition.

This is, incidentally, why the Dems originally wanted superdelegates: to override the voters if there were a Trumpian scenario where a candidate had less than a majority of the overall votes cast but the other candidates were splitting the opposition vote instead of consolidating around a candidate who would be palatable to the establishment, if not one of them.

Why Biden couldn’t give the money to someone else.

That Biden can’t give the money to another candidate, at least not in total, and has to donate it either to the national committee or refund it, is reasonably well discussed in the media. Why he couldn’t is less well discussed.

Because I haven’t seen it discussed, this is where I’m going to get very speculative.

I think it's a check against fraud. I think it may even be a check against the very thing people are accusing Biden and the Democrats of doing: pulling a fast one and changing candidates at the last minute. Except she was, for lack of a better word, Biden’s legal beneficiary should he decide he as an individual was out of the campaign.

But you could easily imagine a scenario much like the Dem 2020 Primary or the GOP 2016 Primary where, surprise! All the very popular but not popular enough candidates drop out and give not only their endorsements, but all of their money and campaign staff to their preferred candidate. We’d definitely be living in a different world if all the establishment Republicans had been able to transfer their cash and organizations to Mitt Romney.

I know a lot of people who may very well have walked away from electoralism entirely and never voted again if Klobuchar, Buttigieg et al. had been able to not just suspend their campaigns and clear the center left lane for Biden but also directly give him all of the money they’d raised.

Essentially what I’m talking about is longshots and badfaith candidates entering a race largely just to raise money, only to funnel it to another person late in the game.

Another possibility is out and out grifters. Which we already kind of know this happens, but in an exquisitely legal way that still sometimes manages to trip up otherwise very competent candidates who are taking advantage of their campaign donations to live a little more opulently and provide huge paydays for their friends and family. But as is, they have to spend the money and they have to spend it in ways that can be scrutinized by the Federal Electoral Commission. They can spend profligately but they have to save the receipts.

What they can’t do is just brazenly take the money and run.

Probably.

It’s not entirely clear to me to what degree if any there is a firewall between Trump’s re-election fund and Trump’s legal defense fund. There may be some sketchy legalese involved.

So by forcing Biden to either 1. Give the money to Harris. 2. Give the money to the DNC. 3. Refund the money; it keeps him somewhat above board and it minimizes the potential for an insincere grifter to fundraise, quit, and then use the money for whatever.

So where does that leave us?

I’m actually a bit at a loss for how to prevent another scenario like Biden dropping out in friggin’ July. This is if not literally than essentially unprecedented.

At the risk of repeating myself, ideally he should have never run again. I would hope that a future President facing dire prospects would not monopolize time and money this way or play stupid games with the lives of hundreds of millions of people. I would expect there would be pressure on such a hypothetical President not to do so. Yet I cannot rule out family and staffers with careers on the line gaslighting an increasingly out of touch or deeply arrogant President.

In an election year where until just two months ago now, both presumptive nominees of their Parties were the oldest candidates ever AND where one was nearly assassinated, we should take more care to scrutinize who is the VP pick. Because we are not just voting for President, we are voting for the backup President.

As for Harris inheriting all of this mess in July, I don’t love the circumstances, but at the same time I think we need to be much more introspective about Primaries - how they’re run, what they mean, the complicated dance between the national parties who technically have no direct legal authority over states and the states who can be coerced but not directly cowed by parties if the states feel like being obstreperous like New Hampshire. 

There’s all sorts of pain points that the Republicans may try to attack to sabotage the legally very smooth ascension of Harris to being the Presidential nominee, especially if it looks like she’s going to win. Those pain points and more would have been wielded against someone wholly separate from the Biden - Harris campaign as a legal matter. In the very best scenario, we are looking at an election where the Republicans will spend the next four years waving around their failed legal challenges like OJ Simpson’s bloody glove and creating a miasma of illegitimacy and rage around Harris’ presidency.