In a completely shocking turn of events, some states (primarily those with a Republican Secretary of State) seem to be about to deny the Democratic ticket its place on the ballot. The issue is that every state has a deadline for established parties to certify their presidential ticket to the state election authority. Ohio is the earliest with a deadline ninety days before the election. (Depending on the year, that deadline falls between August 4 and August 10.) By contrast, Alaska’s deadline is forty-eight days before the election (with the deadline falling between September 15 and September 21).
The early deadlines are problematic because they ignore the informal traditions about the scheduling of the conventions and the real world. The big real world issue which impacts the scheduling of the conventions is the Summer Olympics. Barring cancellation or postponement (like happened in 2020), the Summer Olympics are always in the Summer of the presidential election year. Simply put, the political parties want their convention to dominate the news and for all eyeballs to be glued to their convention. (Of course, as the current nomination system has drained conventions of almost all of the drama, getting people to watch the convention is harder, but the parties do not want to compete with the Summer Olympics for viewers.) And, over the years, the Olympics have expanded. This year, the Paris Olympics runs from Wednesday, July 24 through Sunday August 11. In practical terms, that means that the last potential week for a July convention is the week of July 15. And, if you want some news coverage during the week leading into the convention, the first potential week for an August convention is the week of August 19. Going back to 1992, the dates of the Summer Olympics has been: 1992 Olympics — July 25-August 9; 1996 Olympics — July 19-August 4; 2000 Olympics (held in Southern Hemisphere) — September 15-October 1; 2004 Olympics — August 13-29; 2008 — August 8-24; 2012 — July 27-August 12; 2016 — August 5-21; 2020 Olympics (original scheduled dates) — July 24 through August 9. The other big world impact is that most states now use primaries to award delegates with the last primaries taking place in early June. That makes it almost impossible for a major party to move its convention before July.
Turning to the informal traditions, the party out of power normally goes first. The last time that the party in power went first was 1932. (Prior to World War 2, the Republicans normally went first, but in 1956 (the first time that Republicans were in power after World War 2), the Republicans opted to go after the Democrats, and the tradition of flipping sequence based on which party held the White House has been followed ever since. The dates for the party out of power since 1992 have been: 1992 — July 13-16 (Democrats/ending before Summer Olympics); 1996 — August 12-15 (Republicans/ starting 8 days after Summer Olympics); 2000 — July 31-August 3 (Republican/Summer Olympics not an issue); 2004 — July 26-29 (Democrats/ending before Summer Olympics); 2008 — August 25-28 (Democrats/starting 1 day after Summer Olympics); 2012 — August 27-30 (Republicans/starting 15 days after the Summer Olympics); 2016 — July 18-21 (Republicans/ending before Summer Olympics); 2020 — July 13-16 (originally scheduled)/August 17-20 (actual dates) (Democrats/ original schedule before Summer Olympics). In other words, in the previous eight election cycles, the party out of power has held their convention “too late” to comply with the Ohio statute four times out of eight (three times if you use the original date). The dates for the party in power since 1992 have been: 1992 — August 17-20 (Republicans/starting 8 days after Summer Olympics); 1996 — August 26-29 (Democrats/2 weeks after Republicans); 2000 — August 14-17 (Democrats/2 weeks after Republicans/Summer Olympics not an issue); 2004 — August 30-September 2 (Republicans/1 day after Summer Olympics); 2008 — September 1-4 (Republicans/week after Democrats); 2012 — September 4-6 (Democrats/week after Republicans); 2016 — July 25-28/week after Republicans/before Summer Olympics); 2020 — August 24-27 (Republicans/originally 15 days after Summer Olympics). In short, the only time in the past 32 years in which the party in power held their convention before Ohio’s deadline was 2016 when the Olympics did not start until August.
To summarize, in the last eight cycles, both parties held their conventions early enough for Ohio on only one occasion (2016) and both parties held their conventions “late” on four occasions (1996, 2008, 2012, and 2020). On the three occasions were one party was “on-time”, the Democrats were on time twice (1992 and 2004) and the Republicans were on-time once (2000). This non-compliance has not been an issue in the past. Instead, states either passed “one time” waivers every cycle or accepted “provisional” certifications from the state and national party. If the party “out of power” was late, the states allowed that party to amend the provisional certification to “correct” the vice-presidential nominee. But, this cycle, it looks like Republicans want to strictly enforce the rules because the Democrats are the party out of power.
Before going into why the Republicans are legally wrong, a brief discussion of why the Republicans are factually wrong. The Republicans are putting forth the position that the Democrats “could” have scheduled their convention to comply with the rules. But practically that is not true. Every state has their own rules about primaries with the last states going in early June. After the primary, votes have to be counted and delegates awarded. This makes it almost impossible to hold a convention before mid-July. Given these practical constraints, the Republicans have opted to hold their convention this cycle the week of July 15. As noted above, that is the last possible week to hold a convention before the Summer Olympics. That means that to comply with the dictate from Ohio, the Democrats would either have to hold their convention the same week as the Republicans (and how the Republicans would howl if the media opted to cover Biden’s acceptance speech rather than Trump’s) or during the Summer Olympics (not going to happen). In short, the dates chosen by the Democrats (August 19-22) are the first free dates after the Republican national convention.
Despite this reality, the Republicans in these states have chosen to throw a temper tantrum and not follow the understanding that the two parties have had for the past several decades as part of their “owning the libs” strategy that forgets that, in the future, they might be the ones needing a waiver. (Of course, given the childishness of the Republicans, that might be far in the future.)
The legal issue is that pesky First Amendment. Some states, including Alabama and Ohio, require the state parties to certify the candidate nominated by their national convention. However, the laws in these states base a party’s status as an established party based on their success in past state elections. But, as the Supreme Court has recognized, the First Amendment protects political parties in two ways: 1) the national parties get to set their own rules for the nominating process (established in Democratic Party vs. Wisconsin — 1981); and 2) parties are voluntary associations. While state law may create a process by which a group of people officially represent a state party for the purposes of state elections (designating election judges, nominating candidates), the state law may not force a national party to recognize that group for the purposes of the national party effort or force the state party to join a national party.
To take a fictional “Human Life Party,” let’s assume that a group of pro-life people try to form a political party. They form state chapters which gradually get on the ballot in multiple states and form a national party to support the state parties and run a presidential ticket. Over the years, different factions emerge. There is the narrow faction for whom pro-life is just about abortion and this group is willing to allow exceptions for rape and incest. There is also an extreme faction for whom pro-life means that nobody — not the government, not an individual — has the right to take a life which they interpret as meaning no abortion for any reason not even the health of the mother, no death penalty, and no self-defense exception to homicide laws. Now imagine that the extremists have taken over a couple of state parties. Even though the national convention is nominating candidates who follow the position of the narrow faction, that is not good enough for the state parties controlled by the extremists. The implicit position of Alabama and Ohio is that these extremists do not have the option of breaking away from the national party and certifying their own presidential candidates for the individual states that they control.
In other words, there is no question that Alabama and Ohio can set a deadline for the Alabama Democratic Party and the Ohio Democratic Party to certify their presidential ticket (president, vice-president, and electors). What they can’t tell their state parties is that they can only certify that ticket once the national party has officially chosen a nominee. To use my state as an example of a different way of doing things, my state simply requires the state party to certify the nominee of the party with no reference to who has decided the nominee. If Alabama and Ohio had the same language as my state, the Alabama and Ohio Democratic parties could certify Joe Biden and Kamala Harris as the nominees prior to the convention. (Of course, my state — while using the same deadline as Alabama — creates a loophole for candidates chosen after that date who must be certified within seven days of being selected.)
My expectation is that — if the relevant election officials do not back down — this dispute is quickly headed to court. Given the clear precedent on this issue, I can’t see any federal judge who is not going to order Alabama and Ohio to include the Democratic ticket on the ballot. This tempest in a teapot is unfortunately one of the downsides of federalism — the ability of a state to ignore what is happening nationally and attempt to force its will on the rest of the country. We saw that earlier this year with New Hampshire’s insistence that they could legally require the national political parties to let New Hampshire go first.
