When conservative lawyers and other prominent allies of Donald Trump started floating the idea that they could launch a barrage of lawsuits to keep President Joe Biden’s name on state ballots — even if he dropped out of the 2024 race — attorneys working on or close to the Biden-Harris reelection campaign sprang into action.
The Democratic lawyers quickly realized last month they didn’t have to do all that much googling to see the Republican threat for what it really was.
“It’s some of the dumbest bullshit I’ve ever had to read,” says one attorney working with the Biden campaign — now the Harris campaign — to closely monitor various pro-Trump efforts to sow chaos and mischief well ahead of Election Day. This Democratic lawyer compares Republicans’ planned litigation blitz to Trump-coup figure and attorney John Eastman’s ludicrous birther theory that Harris was not eligible for the office in 2020.
“I am going to bet that if [Republicans] try to do this, it’ll be something that we can pull the guts out of in the time it takes to have lunch,” the Democratic attorney adds.
Last month, the Heritage Foundation — the think tank behind Project 2025 that has deep ties to Trumpland’s upper crust and has been a beacon in the conservative movement for decades — publicly posted an “EMERGENCY” memo that outlined a legal strategy for a multi-state effort to keep President Biden’s name on 2024 general-election ballots, no matter who the Democratic nominee ends up being.
With Biden bowing out of the election on Sunday, it appears Harris is headed for an easy march to the nomination ahead of the Democratic National Convention in Chicago next month. She is now the presumptive Democratic nominee.
The Heritage push — fronted by Mike Howell, a former Trump Homeland Security Department official and current executive director at Heritage’s Oversight Project — has its doubters.
“Such litigation is extremely unlikely to be successful,” Rick Hasen, director of the Safeguarding Democracy Project At UCLA’s Law School, tells Rolling Stone. “I fully expect the Democrats’ nominee to be on the ballot in every state and Washington, D.C.”
As Rolling Stone previously reported, a senior source involved with Donald Trump’s 2024 effort and another person working with Heritage’s Project 2025 indicated the point of the proposed litigation blitz isn’t necessarily to win, but rather to keep Democrats busy with court battles instead of being focused on campaigning.
The strategy has permeated the GOP mainstream, and earned a public nod over the weekend from one of the most powerful Republican politicos and Trump allies in the country, House Speaker Mike Johnson (R-La.). Before Biden announced his withdrawal from the race on Sunday, Johnson said on ABC’s This Week that any move by Democrats to swap candidates “would run into some legal impediments.”
Top Democratic election lawyer Marc Elias, whose firm works with the Democratic National Committee, said in a video on Monday that Johnson’s comments represented “frivolous threats of frivolous litigation by an election denier.”
“There is currently no nominee of the Democratic Party, and so the notion that the Democratic Party is somehow precluded from choosing its nominee, pursuant to its bylaws and its rules, is preposterous,” Elias said, adding: “I am here to say that with 100 percent certainty that when the Democratic National Committee nominates its candidate and transmits that to the states, that person will be on the ballot in all 50 states and the District of Columbia.”
Some attorneys on the 2024 Democratic presidential campaign, along with allied legal teams in different states, swiftly researched this issue last month when the Heritage memo began making the rounds online. Biden and Harris-aligned lawyers held calls, including on specific state laws and deadlines, about this Republican scheming, three people familiar with the matter tell Rolling Stone. They found little to worry about.
Poring over individual state guidelines, laws, restrictions, and timelines for ballot access, the legal armada swiftly came to the conclusion that there was no way the Heritage Foundation and other influential Republicans pitching this actually believed what they were selling, according to the three sources. In some states, it seemed impossible to interpret the rules the way conservative troublemakers were, unless they willfully misread the rules and paperwork.
The Heritage memo, for instance, includes a portion of Wisconsin’s statute relating to vacancies after nominations. But Biden wasn’t nominated. The statute says nominees selected at a party’s national convention will be on the ballot. (Heritage has previously argued that since Biden called himself the nominee, he should be treated that way.)
The Biden-Harris-aligned legal muscle believes that even the Republican-filled judiciary, stacked largely by Trump, wouldn’t be willing to bail their team out on this one, if the matter goes to court.
During some of these private calls last month, Democratic attorneys pitched increasingly trollish ideas for what to include in draft legal filings and documents, should Heritage or any other major conservative organ make their move.
Lines were kicked around of how to be, in the words of another lawyer working with Team Biden-Harris, “as condescending as possible” in potentially responding to these types of “frivolous” lawsuits, including scolding these Republicans for supposedly not understanding how basic terms like “presumptive nominee” work.
Another idea batted around between some Democratic legal teams backing Harris 2024 was to use Republicans’ own legal logic against them and expose blatant hypocrisy — by citing, for instance, the Supreme Court’s decision early this year to nullify an effort in Colorado to exclude Trump from the state’s ballot under the Constitution’s insurrection clause.
“Honestly, I probably shouldn’t try to wish this into existence, but fine: I dare Mike Howell and the rest of Heritage to go for it. It won’t work and we’re ready for it. We’ve done our homework,” the second lawyer says.
Asked to comment on this, Howell tells Rolling Stone: “They can take it up with the DNC who agrees with me, or at least did prior to the coup.” (This references the emerging right-wing talking point that Biden passing the torch to Harris is somehow a “coup.” It is not in reference to the coup that Trump attempted in 2020 and 2021 that culminated in his supporters’ deadly Jan. 6 riot at the U.S. Capitol.)
When asked if he and Heritage are in fact going forward on this litigation, Howell simply teases, “Stay tuned! Not showing our hand just yet.”
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