Republicans say a late convention could keep Biden off some ballots. It hasn't mattered before.


Republican secretaries of state in Alabama and Ohio are warning President Joe Biden’s campaign that Biden might not be placed on their general election ballots because the Democratic Party’s late-August convention falls after state ballot deadlines.

It’s not the first time a convention has been held in late August — but it would be a first if any related ballot access questions weren’t solved easily, without fanfare or much controversy. And an NBC News analysis of other state deadlines suggests there aren’t likely to be other related hiccups for Democrats outside of these two states.

The Biden campaign is resolute: It believes he’ll be on every state’s presidential ballot no matter what, pointing to a long history of similar issues getting solved without any fight — including in 2020, in Alabama, Oklahoma, Illinois, Washington and Montana. It’s unclear whether Republicans will ultimately lend a hand to Democrats in either state to solve the issue in the most straightforward way: making small changes to state law.

John Merrill, a Republican who served as Alabama’s secretary of state until 2022, told NBC News that he thought the usually pro forma process shouldn’t fall victim to politics.

“We have a Democratic president today, but four years ago we had a Republican president. We’re going to have a Republican president again and we will have a Democratic president again,” Merrill told NBC News.

“It’s not something that needs to be advanced or promoted only because it’s a Democrat or a Republican [in office].”

He also noted that since the incumbent president’s party traditionally holds its convention second, both parties may find themselves bumping up against these deadlines again.

Alabama Secretary of State Wes Allen publicized a letter warning the state and national Democratic Party that state law requires them to provide his office with a certificate of nomination for president and vice president by Aug. 15, four days before the Democratic convention starts.

“If those certificates are not in my office on time, there will be no certification and no appearance on the Alabama general election ballot,” Allen said in a statement released as his office made the letter public.

“I took an oath to uphold and defend the laws and constitution of my State, and I take that oath very seriously. I will administer Alabama elections in accordance with Alabama law and the deadlines provided therein,” Allen said in a subsequent statement to NBC News.

But both Alabama and Allen have recent experience with this exact issue. When the GOP was in this situation, in 2020, state Republicans voted to relax this deadline to ensure then-President Donald Trump obtained ballot access.

That legislation passed unanimously, with Allen, who was a state legislator at the time, among the “yes” votes. That year, top officials with both the Republican Party and Democratic Party also sent Merrill’s office a “conditional” certification ahead of the convention stating their intention to nominate Trump and Biden respectively. Those conditional certifications were included in Merrill’s 2020 candidate certifications, which are posted on the secretary of state’s website.

Allen’s office didn’t respond to an additional request for comment on whether he’d encourage his former colleagues in the Legislature to pass similar legislation to clear up the potential issue. But a spokeswoman did tell NBC News that they believe state law doesn’t allow Allen to approve any provisional certification ahead of the party’s official nomination.

AL.com reported Thursday that a Democratic Party attorney in Alabama wrote Allen’s office a letter asking the secretary to accept a provisional certification this year too, arguing that a failure to do so would be unconstitutional.

Also on Thursday, a group of Democratic lawmakers filed legislation that would amend the deadline and fix the problem. But they’ll need Republicans to pass the bill through the GOP-controlled Legislature.

John Wahl, the state Republican Party chair, gave no indication he’d suggest Republicans work to help the Democrats. Instead, he released a statement attacking Democrats for holding their convention outside of the deadline, claiming it showed “shocking disregard for Alabama’s electoral process.”

If legislators refuse to change the deadline and Allen holds firm on his opposition to provisional certifications, Democrats will have two other potential avenues — suing for ballot access, or holding some sort of earlier official nomination vote ahead of the Chicago convention. The Biden campaign believes past precedent in both Ohio and Alabama would weigh heavily in any potential lawsuit.

Asked about the situation in Alabama and Ohio, a Biden campaign official told NBC News that the president “will be on the ballot in all 50 states.”

“State officials have the ability to grant provisional ballot access certification prior to the conclusion of presidential nominating conventions. In 2020 alone, states like Alabama, Illinois, Montana and Washington all allowed provisional certification for Democratic and Republican nominees,” the official added.

President Joe Biden arrives for a groundbreaking ceremony near New Albany, Ohio, in 2022.  (Gaelen Morse / Bloomberg via Getty Images file)

President Joe Biden arrives for a groundbreaking ceremony near New Albany, Ohio, in 2022. (Gaelen Morse / Bloomberg via Getty Images file)

In Ohio, state law requires presidential and vice presidential nominees to be “certified to the secretary of state or nominated” through one of several manners “on or before the ninetieth day before the day of the general election.”

That means 12 days before the start of the Democratic National Convention — Aug. 7 — is the Buckeye State’s deadline.

Paul Disantis, chief counsel for Ohio Secretary of State Frank LaRose, warned of the potential for a missed deadline in an April 5 letter to Ohio Democratic Party Chair Liz Walters.

LaRose spokesperson Ben Kindel noted that the Legislature approved a temporary exception in 2020, when Democrats and Republicans both held conventions after the 90-day deadline. But it’s not an issue this year for the GOP, which enjoys overwhelming majorities in the Ohio state House and Senate.

It’s unclear whether enough Republican lawmakers are willing to help Democrats by changing the law, the simplest way out of the bind.

Pat Melton, a spokesperson for Ohio state House Speaker Jason Stephens, said LaRose gave the Republican speaker a heads up before sending his original letter and that Stephens and House GOP leadership are still “reviewing” the matter.

State Rep. Bill Seitz, a long-serving Republican lawmaker, told NBC News that he is “certainly open” to making the change consistent with precedent.

“After the Republicans have spent five months criticizing Colorado and Maine for trying to bounce Trump, I think we would look like hypocrites if we tried to bounce Biden,” Seitz said. “So that’s one good reason why we should be open to this change. Frankly, I think we need a bigger discussion over why we have this law in the first place.”

State Sen. Niraj Antani, another Republican, was less charitable.

“There’s 0 chance I vote to help Joe Biden,” Antani wrote in a text message. “Democrats have known about this law for years. This is on them.”

But Ohio state Senate President Matt Huffman doesn’t believe legislation is needed to resolve the matter.

“I think the national committee doesn’t have to wait till their convention to notify the state of Ohio who their candidate is,” he told reporters Wednesday. “So we’ll wait for the Democratic leaders to suggest how that would get solved.”

Donald McTigue, a Democratic lawyer based in Ohio, sent a letter this week to LaRose’s chief counsel committing the Democratic Party to “provisionally certify, by the August 7 statutory deadline, that President Biden and Vice President Harris will be the Democratic nominees, and will confirm the results of the Democratic National Convention … to the Secretary of State by August 25, 2024.”

Kindel said Thursday that the secretary of state’s office is still reviewing the letter.

This article was originally published on NBCNews.com



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