Some election law attorneys in the state of Georgia may soon have their work cut out for them as they challenge President Joe Biden's withdrawal from the re-election bid on Sunday and the use of the campaign funds he raised, some experts say.
Jeremy Berry, a partner at Chilivis Grubman in Atlanta, said he expects election lawyers to be “very busy in and out of the courtrooms” this fall and after the election, as the presidential election could be close in many states, especially after Biden's “decision not to run for re-election.”
“We have seen an increase in election-related litigation in recent years, challenging election laws, voter registration efforts, voter eligibility, election results and more,” said Berry, who focuses on election law, among other areas.
Alex Kaufman, a member of the Atlanta law firm Chalmers, Adams, Backer & Kaufman, is clearly feeling the impact of the decision as general counsel for the Republican Party in Georgia. He wrote in an email that party officials are examining the legality of Biden's move and its impact on the November 5 presidential election in Georgia.
“Given the timing and after initial legal research, it appears that Democrats may be able to put the name of their presidential candidate – whoever that may be – on the Georgia general election ballot,” Kaufman said.
“Of course, we are actively investigating this issue and I expect the Georgia Republican Party will pursue every viable and reasonable legal avenue,” he said. “We do not file lawsuits unless we believe we are right and likely to succeed.”
Kaufman said Biden's announced withdrawal was “obviously an issue of great interest to the Republican Party.”
“We also find ourselves in an unprecedented situation where Biden has won the 2024 presidential primary in Georgia, but the Democratic National Committee has not yet held its convention and, as a result, Biden has not yet been officially nominated – or [Vice President Kamala] Harris or anyone else,” he said.
An Associated Press poll on Monday found that Harris has secured the support of enough Democratic delegates to run as the party's nominee.
Adam Sparks, an election law partner at Krevolin & Horst, said in an interview that he anticipates a possible need for lawyers to file class action lawsuits challenging Biden's decision to withdraw his candidacy and release the delegates he won in the months-long primary process this year.
But Sparks also said he did not expect to receive many requests for the services of election lawyers unless they “already represent some of the parties involved,” he said.
“I don't expect there to be litigation on this issue, and I don't expect too many calls on these cases,” Sparks said. “By and large, the law requires the major political parties to decide their presidential and vice presidential candidates at a convention.”
Alicia Hughes, a visiting professor at Emory University School of Law, said in an interview that she expects demand for election lawyers from both camps this year – including requests from voter rights groups for pro bono work.
“When democracy is challenged, you would expect civil rights organizations to represent the interests of voters,” she said.
The Republican National Committee and conservative, Republican-leaning groups would also do “whatever is necessary” to help their candidates, she said.
“Since this is a political case, one must expect that both political parties will fight for their positions,” she said.
Sparks was part of a group of lawyers representing a group of individuals in a lengthy federal court case demanding that the state of Georgia replace its electronic voting machines with hand-marked paper ballots.
The Krevolin & Horst partner – who said he was speaking for himself and did not represent any political party or candidate's campaign – rejected House Speaker Mike Johnson's statement on ABC television on Sunday that Biden's withdrawal could be challenged in some states because the president was the overwhelming winner of the Democratic Party's primaries.
“There is no legal basis for this in Georgia,” Sparks said.
He noted that both parties' primaries are presidential elections, where the delegates who endorsed a candidate are chosen for the party's convention. Those delegates are the ones who select the candidates, Sparks said.
“Once President Biden formalizes his … opposition to the nomination, the delegates who have now pledged their support to him – at least on the first ballot at the convention – will be released from that obligation and can make their own decisions,” Sparks said.
Hughes said the issue may not be so clear-cut in some states, where delegates who do not vote for their pledged candidate face civil or criminal penalties.
“There are already concerns and considerations that this could happen because of the current situation,” she said. “If state laws contradict party rules, what applies then and how do we proceed?”
However, those who pledged their support to Biden also appeared to be committed to Vice President Kamala Harris, since Harris was also on the ballot in the primaries, she noted. Harris, who is endorsed by Biden, could also get pledges from enough delegates to win the nomination before the Democratic National Convention in August, she said.
Access to Biden's funds
Most agree on one thing: After Biden resigns, legal challenges related to his campaign funds are likely to arise, according to several political lawyers and a politics professor who spoke to Law.com ahead of the president's announcement on Sunday.
Biden's campaign had about $91 million at the end of May.
Jeremy Mayer, associate professor at the Schar School of Policy and Government at George Mason University in Virginia, said: “Whatever [Biden] “If he does that, there will be litigation because there is a lot of money at stake and Republicans will look for ways to weaken the Democratic candidates.”
Berry, the Atlanta-based election law attorney at Chilivis Grubman, said he has observed some disagreement on the issue, but he believes Harris “will be able to leverage the federal campaign funds that the Biden-Harris Campaign Committee has raised.”
Another attorney specializing in political law, who wished to remain anonymous, also pointed out that Harris could use Biden's campaign funds under certain legal considerations.
“In the end, the arguments there are relatively strong,” said the lawyer.
However, the lawyer also said there were counterarguments, including whether she was a candidate because she was not officially nominated as vice president before Biden's withdrawal.
Abigail Adcox contributed to this report.
