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Implications of President Biden's nominee withdrawal
Join us for an insightful discussion with Michael Cembalest and Professor Michael T. Morley as they analyze the potential repercussions of President Biden’s withdrawal as the Democratic nominee on the political landscape.
This session is close to the press. Welcome to the JP Morgan webcast. This is intended for informational purposes only. Opinions expressed herein are those of the speakers and may differ from those of other JP Morgan employees and affiliates. Historical information and outlooks are not guarantees of future results.
Any views and strategies described may not be appropriate for all participants and should not be intended as personal investment, financial, or other advice. As a reminder, investment products are not FDIC insured, do not have bank guarantee, and they may lose value. The webcast may now begin.
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All right. Good afternoon, everybody. This is Michael Zimbalist with JP Morgan. And I'm here to welcome you to participate in a special webcast we're doing on the political situation. As a reminder, this webcast is closed to the press. And secondly, if there's anything that we don't get to during this call and you want to ask a question and it's within the bounds of reason, we will do our best to answer it.
You can type it into the portal that you use to join the call. So reasonable questions only I'm begging. So I am joined here by Michael Morley from Florida State University. Michael is a graduate of Princeton, went to Yale Law School. He teaches and writes in the areas of election law, constitutional law, remedies, and the federal courts.
He's testified before Congressional committees and election officials. He's participated in bipartisan groups to develop election reforms. He's been published in the Georgetown law review, Virginia law review, Northwestern, et cetera, and also clerked for the fourth largest, not the fourth largest judge, the fourth longest serving federal judge.
And more important than that, Michael has been indispensable to me over the last four years and has helped me on issues that you've read about in the Eye of the Market related to the electoral count act, the electoral count Reform act, a faithless elector, third party candidates, the No Labels movement, the recent supreme court rulings, Chevron deference, brokered conventions and contingent elections and things related to the 12th amendment.
So before we kick in, I do want to say that in January, in our outlook this year, I had a top 10 list of surprises in honor of Byron Wien, who had passed away. And Byron Wien always did that in his pieces. And the third item on my top 10 list in January was president Biden withdraws sometime between super Tuesday and the November election, citing health reasons. Now, there you go.
Now, to be clear, I didn't have any inside information. I had a chart that looked at the mortality adjusted age of people running for president going back to the 1790s and the pairing of Trump and Biden was the second oldest even after adjusting for life expectancy. So that was not as brave a call as it might have seen. So I have 10 questions for Michael. So let's, let's dig in.
So president Biden has endorsed vice president Harris. And as of this afternoon, a lot of other potential contenders have fallen in line, whether it's, all the governors. And so the first question I think we have to ask is, is it possible that the Democratic party will proceed with what they've been talking about, which is a virtual roll call nomination even before the convention? And I think you've mentioned something like early first week in August as opposed to the convention date of August 19.
Yes so it's up to the Democratic party itself, obviously, to decide whether to proceed with the virtual roll call. I think that it's likely to do so for two main reasons. First, proceeding with the roll call eliminates even the small possibility of election litigation with regard to whether or not the party's nomination is made in accordance with state law deadlines.
There's no realistic world in which the Democratic candidate is not going to appear on the ballot in any state. But nevertheless, by having the-- by having the official nomination made before the convention itself early in August in this virtual roll call, it makes any such litigation even harder to try to get off the ground.
And secondly, as a practical matter, consolidating around a nominee sooner rather than later is a political advantage to the party to lessen the opportunity for infighting or for hostility within the party itself to generate.
OK. Now, at a typical convention, upfront there are votes that take place to approve the rules and the credentials of the attending delegates. And how would this work in a virtual convention if, to the extent that you can speculate, may not have happened before? And do you think the party will try to go through all the necessary procedures so that the virtual nomination is essentially binding, after which the actual convention would just be like a political rally?
All the indications are that the virtual roll call would be intended to lead to a legally binding nomination, which in turn then would allow the Democratic party to certify its presidential and vice presidential nominees to all of the states in order to alleviate those potential concerns about filing deadlines. So it would be much more than just a zoom call where everyone identifies a particular candidate they're voting for. It would likely replicate most of the key procedural requirements that the rules state have to occur at the convention.
So in all likelihood, there would be virtual approval of a credentials committee report in order to resolve any disputes that may arise over whether particular delegates should be seated or not. There would be consideration and approval of the rules committee report, which set forth the key rules that govern both the nomination process as well as the convention. And then, after credentials have been settled, after the rules have been adopted, then the virtual roll call would proceed to selecting the presidential and the vice presidential nominees.
OK. So let's talk for a minute. When I mentioned to-- that I was doing this call, a lot of clients and colleagues reached out to me and said, how does one become a delegate? How are these delegates chosen? And the reason this is important is, as you've explained, the delegates that would be voting for Harris in the first round are not the super delegates, which are essentially the automatic delegates that are sitting governors, party officials, senators, and House members.
Where do the rest of those pledged delegates come from? And might their politics be different from sitting politicians?
So it's helpful to think of the convention as being comprised of four main groups of delegates. The first you alluded to the-- what are called the automatic delegates, often referred to as super delegates in the press. These, as you mentioned, are current elected federal officials of the Democratic party. So the sitting president, Biden and vice president Harris are both are both automatic delegates.
All of the Democratic members of congress, all of the Democratic members of the senate, Democratic governors, DNC members, as well as former DNC chairs, former Congressional leaders, past presidents and vice presidents. They are all unpledged automatic delegates. The second category is what's referred to as base district delegates.
These are delegates elected on a district by district, chosen, I should say, on a district by district basis within each Congressional district. And it's up to the state Democratic parties to decide how these base district delegates are chosen. And there's really two main ways. Either they can actually have their names appear on the primary election ballot, along with the presidential candidate that they elect.
So if you're voting for president Biden in the Democratic presidential preference primary in those states, there would be the names of the delegates from that Congressional district who would be pledged to him if he won. Or instead, a state may choose to have caucuses of each candidate's supporters within each Congressional district to decide which-- to decide which delegates from that district will get sent to the convention to support that candidate.
So these are the majority of delegates attending the convention. And again, they're selected on a district by district basis. There's the third category is what's referred to as the at large base delegates. And these are delegates selected on a statewide basis. And again, it's up to the state party of each state to determine how to select their at large delegates.
They can either choose to elect them at their state party conventions. They can choose to have the district level delegates, choose the state level delegates, the at large delegates or the state party committee itself, under certain circumstances, is allowed to choose the at large delegates. And then finally, there's what's referred to as the PLEO delegates. The party leader and elected official delegates, P-L-E-O delegates. And this is basically, however many base delegates you have taking into account district and at large, 15% of you get an additional 15% as your PLEO delegates. And these are state officials, county officials, local officials.
And again, it's up to the state party of each state to determine how their PLEO delegates are going to be chosen. It can again be at the state convention. It can be chosen under certain circumstances by the state party committee itself. The party can allow the district level delegates to choose the PLEO delegates. So for each category of delegates other than the automatic delegates, presidential candidates have influence over who they are.
And that's why I'm-- that's why I'm asking because to me, there's an important thing that I think a lot of people are missing, which is even before the governors lined up behind Harris today. To the extent that a lot of people have been reading over the last 48 hours, that there were some major donors and members of Congress pushing for an open convention.
But the pledged delegates, which are voting in the first round, whether it's a virtual or in-person convention, are typically not just party loyalists, but Biden appointed loyalists who would be much more inclined to vote for Harris in the first round. And correct me if I'm wrong, all Harris would need is a simple majority of pledged delegates in the first round of voting to receive the nomination. Is that right?
That's exactly right. In the first round of voting, the rules provide that automatic delegates, the super delegates, don't participate unless a certification is made that one of the presidential candidates has a majority of pledged delegates already, in which case then they would be participating in an acclamation and essentially a ceremonial role. But since all of the pledged delegates have now been released or all of president Biden's pledged delegates have been released due to president Biden's withdrawal from the race, we presumably wouldn't be entering into the convention with a majority of pledged delegates, which means, as you said, the superdelegates would not participate in the first round of voting. And president--
And the pledge delegates-- and the pledge delegates that would be voting, one I think we'd have reason to believe would have higher allegiances to the president and his endorsed candidate. And so I think even if there were movements at some point over the last week for an open convention from donors and sitting members of congress, that their arguments would fall on deaf ears to some of the pledged delegates that would be making the determination.
Yes. As the name suggests, all of these pledged delegates are people who chose to pledge their support to the Biden, Harris ticket. And so now the president Biden has withdrawn. He has thrown his support to vice president Harris. I think you're exactly right. It would be very reasonable to expect these people would continue their support of vice president Harris. These people would be disproportionately likely to go along with the president's support of her-- the president's endorsement of her.
Next question is, would vice president Harris need to declare a running mate before the first round of voting at a virtual convention, or would that simply be an option on her part?
They're certainly under the party rules, there's not a formal requirement of that. There's certainly no legal requirement of that. Historically, going into conventions, the vice presidential nominee has often been announced within a few days of the start of the convention. Certainly, there are political advantages to identifying your vice presidential running mate, your proposed vice presidential candidate ahead of time simply because that person is then base of support will likely join with yours and simply help you secure your nomination.
You obviously a lot of times the choice of a vice presidential candidate is made with at least one eye toward helping someone secure the presidential nomination. And so yet again, announcing ahead of time, making a public record of that is to a presidential candidate's advantage.
So even if the virtual convention were on August 1st. There's a good chance that you think that a vice presidential candidate would be named even before then.
Well, again, not officially. Right vice president Harris could simply publicly announce, here's who my running mate is. Here's what our ticket is going to be. And then at that virtual roll call, after vice president Harris or someone else receives the presidential nomination, it would then likely proceed immediately into the vice presidential nomination.
OK. Got you Now Before their-- the House speaker mentioned legal challenges and things like that. Before getting into the specifics of that, could you just quickly cover this, because I think it's important. A lot of our clients mistakenly use the words delegates and electors interchangeably, and they're definitely not the same thing. And can you explain the difference-- the important differences between the primary process and the general elections, particularly as it relates to the how the courts assess any legal challenges to.
Sure so with regards to the possibility that some people have been raising in the press about legal challenges to president Biden's withdrawal. The important thing to recognize is president Biden has not yet officially been nominated as the Democratic party's president. Right? At most, he is currently the presumptive nominee. We have not yet had the virtual roll call the DNC is anticipating holding.
We certainly have not had the Democratic national convention. So as of right now, president Biden is not officially the Democratic party's nominee. And even before his withdrawal, he was not officially the nominee. So therefore, when you see references to state laws about the withdrawal of candidates or state laws about the change of candidates, those statutes are completely inapplicable to this situation simply because the Democratic party hasn't nominated its candidate yet.
And the simple fact that president Biden might have won the presidential preference primary or other presidential preference contest in a particular state doesn't mean that he therefore has to appear on the general election ballot for president in that state, right? There's any number of reasons why a candidate might win a particular presidential primary and yet not go on to become their party's nominee.
So the simple fact that president Biden won one presidential preference primaries in the state doesn't mean he is presumptively going to be on the general election ballot, doesn't mean he needs to withdraw as a candidate in that state. We're in a pre nomination stage right now.
And so the real the only slight concern that the Democratic party has been dealing with is just making sure that their candidates by state-- by their presidential and vice presidential candidates, by state deadlines, concerns about withdrawing, and do states allow changes to general election ballots? Those those those aren't even really in the picture.
Yeah. I remember reading that in the 50s. There were a couple of times when the winner of the majority of delegates didn't even become the nominee at all. And I think the party proposed Adlai Stevenson a couple of times, even though he didn't even win the majority of delegates. Do I have that?
In the 52 convention, he actually ultimately did wind up going on simply because one of the he did not have the most candidates going-- the most delegates going in. But after several rounds of voting, then the some of the lower tier candidates dropped out and threw their support to him to eventually put him over the top.
So just because you're going into a convention with the most delegates, particularly if you're short of a majority, doesn't necessarily mean you're going to win. And of course as we'll we'll talk about later. There's always or there are there historically there are frequently been attempts to try to manipulate the rules governing political conventions in order to-- in order to try to game the system and influence the outcome one way or the other.
Just for completeness, and I wrote about this last year with your help, even if Biden had accepted the nomination and then two weeks later decided to withdraw as a candidate for president the rules would allow the DNC to replace him. And then in some states, the new person the DNC would anoint would have their names on the ballot. In other states, it would be too late to change it. So biden's name would stay, but a vote for Biden would just end up being a vote for the new candidate anyway.
Right. When you vote for a presidential candidate. So if you press-- the press the button on the voting machine for Joe Biden or kamala Harris, legally speaking, your vote doesn't actually count as a vote for that person. Rather, that counts as a vote for the slate of candidates for the office of presidential elector that the state's Democratic party has nominated.
And in many states, those presidential electors names don't even appear on the ballot. Most people have no idea who they are-- who the Democratic or Republican candidates for presidential elector are. And so, regardless of the candidate's name that appears on the ballot, if you press the button or if you cast your ballot for the candidate of a particular political party, no matter what the ballot says, it's going to be the presidential electors who have been nominated by that party that receive that vote.
So it's primarily be a political issue in terms of, obviously, you'd rather have your current candidate's name appear on the ballot. But again, in the hypothetical that you raised, that was assuming that president Biden actually received the nomination officially was the nominee. It's much easier for the Democratic party at this stage simply because he's not the nominee. So they don't even have to worry about changing the candidate they certified.
Right. Got you. OK. Let's talk about money. There's been a lot of commentary on around $100 million of cash on hand that was raised for the Biden, Harris campaign. And so a couple of questions. I think the easy one is, can Harris use those funds without restriction? But then the other question, just for completeness, again, if for whatever reason, Harris did not end up being the presidential nominee, what restrictions would exist on a different candidate having access to that money? There are some reports that they would have to revert back to the DNC or some kind of superpac.
So again, this is a situation where we're in somewhat of uncharted waters. But the president Biden's campaign committee had kamala Harris on it already. She was a certified candidate along with him associated with that committee. And so the committee, as a matter of fact, since she announced the committee has changed its name. It still retains, still retains the same FEC number, still has the same cash on hand.
But this was the easiest possible-- the easiest possible variation, simply because Harris was already associated with that committee as one of its candidates. And so this presents the strongest case for her being able to keep those funds, being able to use those funds.
And frankly, regardless of who goes on to win the nomination, that as of right now that is her-- that is her campaign committee. She has access to those funds. There are rules that allow candidates to transfer funds to their political party. So if she wound up not becoming the presidential nominee, she could transfer those funds to the DNC.
She could turn her committee from a candidate committee into a political action committee. So in the event she weren't successful, she didn't receive the nomination. There would still be alternatives available to her to ensure that the funds are used in support of the Democratic candidate, either through the party or by turning-- or by turning it into a Pac or a super Pac.
Having said that, as of right now, she's the candidate. She's continuing to use funds available to her candidate committee in the event she goes on to-- she goes on to win the nomination, there shouldn't be barriers to her continued use of those funds. And I think the important thing to recognize here is even to the extent there is some uncertainty, because, again, we're in something of uncharted territory. And different experts on election law have staked out somewhat varying positions on the issue.
I definitely don't think that there would be four votes on the federal election commission to take any enforcement action against this, simply because there is a strong argument that could be made in favor of her use of the funds, both in seeking the nomination as well as if she obtains the nomination. And this is not situation where a court would say that the FCCs judgment in refusing to initiate an enforcement action is so far beyond the pale that it would step in enforcement.
If it weren't Harris for whatever reason and it were somebody else and that money were then transferred by Harris and Biden to the DNC. Could the DNC use that money in its entirety to solely support the candidacy of a new person? Because if that's the case, then money is fungible and then this is a non issue
So there are well, there are limits to the to the amount of money that a national party committee can spend in coordination with a candidate. Right so if the candidate, him or herself controls the funds, they can use all of those funds in whatever way corresponds most closely to their campaign strategy. If the national party committee has those funds, there's a limit to how much they can coordinate with the candidate.
They can work with the candidate in spending those funds. The rest of the money would have to be spent independently of the candidate. And again, there are ways of going up to the edge of coordination without actually crossing the line. But it would certainly be much easier for the candidate to simply be able to retain the funds themselves rather than have to deal with coordination limits with national parties.
OK. Again, under the category of completeness. If Harris weren't the nominee, and somebody else ran, a sitting governor or senator? What are the rules about whether or not for them to run, they would have to relinquish their seats to run and then would lose them if they lost?
So it varies by state with regard to federal incumbents. Current us senators, members, members of the US House of representatives. States are not allowed to add to the US constitution's qualifications, so states could not force members of the US senate or members of the US House of representatives to resign in order to seek another federal office. Whether it's the presidency or the vice presidency, resigned to run laws become much trickier when you're talking about state office holders. Because the issue then, as some circuits have framed it, is well, even though states can't set qualifications to run for federal office, they can set qualifications to run for or hold state offices.
So state governors or other state, local, county, local officials, if there were any, depending on the state, could potentially have to make choices and face resign to run laws. Florida I'll point out when governor Desantis was a candidate for the Republican nomination this election cycle, Florida amended its resigned to run law specifically to eliminate any possible concern that he would have to resign should he get the nomination or should become the presidential candidate, the Republican presidential candidate.
Got it. So in short, it's potentially an issue for governors and other state level officials, but not for federal officials. OK.
And I'll throw out one other interesting detail. By the way, there are some states where the governor cannot basically loses their official power while they are outside of the state's boundaries, that basically they only get to act as governor while they're physically within the state. So when they leave, then the lieutenant governor or whoever, basically the next in line is to the governorship, gets to assume power. And so as a practical matter, that could make it very difficult to campaign in states where that number two person is a Republican.
OK. Got it right. So a couple more questions to finish up and then we'll see if there's any interesting questions on the line. The last time we had a sitting president, followed by a vice president running, was Reagan's two terms, followed by Bush running and winning in 1988.
And I thought something you mentioned to me was interesting about how brief the tenure of cabinet positions are, because one of the things I was wondering is, how similar might a Harris administration be to a Biden administration? But then you reminded me about like running backs in the NFL last around two years. And I think the number was similar for cabinet members.
Go ahead. Yeah for top level political appointments, the average lifespan is between 18 to 22 months. Right now, again, obviously we there are exceptions on either end or much shorter, much longer. But on average, political appointees tend to last between 18 to 22 months. So even in the ordinary course of events, even with the same president going into a second term, much less a president transitioning into a vice president, I would expect there to be substantial turnover.
All right. That covers a bunch of the questions I had. My colleague Monica has been monitoring the line to see if there's any questions there. Monica, do you have anything to ask of Professor Morley?
There were a few that, that came in, actually, a couple of follow ups. Your comments recently about the governor potentially leaving the state if there's a Republican lieutenant governor. Are there any states right now when you think of who's being floated as a potential VP candidate that give you pause? A number of people asked to dig into that a little bit more.
Off the top of my head, not immediately. You certainly I would want to-- there are some I would want to look into. North Carolina comes to mind as one that I would want to look into both the law there as well as political alignment. Certainly with a state like California, that becomes much less of a concern.
Sure. And then we had a number of questions as well regarding the VP pick. Can they be from the same state as Harris if she ends up being the nominee for president? There seems to be a lot of confusion about that.
As a practical matter, no, the reason is because the constitution says each presidential elector gets to cast two electoral votes, one for the office of president, one for the office of vice president. The constitution specifies that an elector can't cast both of their electoral votes for someone from their own state. And this goes back to-- this goes back to the original constitution before the 12th amendment where rather than having a separate electoral vote for president and vice president, electors just cast two electoral votes.
And whoever got the most so long it was a majority became president. Whoever got the second highest number so long as now wound up becoming a vice president. Much of this is covered in Hamilton. You've seen that. And so as a result, the thought was, OK, among the 13 colonies, everyone's going to throw-- every elector is going to throw one of their electoral votes away for some favored local son. And so it's going to be that second electoral vote that's going to be the real vote for president.
And we're going to-- so we're going to force that to be for someone from a different state from the elector. And that's going to be the vote for people from who have a national profile. And so the framers of the 12th amendment retained that requirement when they shifted from to generic electoral votes to one for president, one for vice president. And so it would simply be the reason why you would want to have your vice presidential candidate be from a different state is so that you don't jeopardize your electoral votes from your state.
But having said that, it's a very low barrier to be able to change state domicile. As a matter of fact, this was a concern in the 2000 election where both George W Bush and Dick Cheney were residents of Texas. Cheney relocated to Wyoming. He changed his domicile to Wyoming. He changed his voter registration. He went through all of the indicia of Wyoming residency.
And in fact, there was a court case that threw out a challenge to his residency. But also in the course of that opinion, recognized that he had-- that he had qualified for-- that he had qualified for Wyoming residency. So even in the event there were a situation where whether it's, Kamala Harris or someone else wanted their running mate to be from their state, it would be very easy for that running mate to establish domicile in a different state to avoid potential 12th amendment concerns.
Great. That makes sense. And I think the other big question that kept coming through was more about really everything that we talked about, which is we walked through all the potential challenges that could come up. And it doesn't seem like you're particularly concerned about any that we covered. Is there anything just seemingly obvious to you that you worry that we think might come up in a challenge, say, a month from now, two months from now? There's a lot of consternation on the line from people saying, what if republicans are lying low now, but in two months try to come challenge something? Is there anything that feels obvious that you'd want the democrat or you think the democrats need to think about?
So if anything, the longer legal challenges are delayed, the less likely they are to be successful. There's a legal doctrine called Laches, which basically says, even if you have a good legal argument, you waited too long to bring it. You prejudiced the other side. There's basically too much water under the bridge. We're not going to-- we're not going to grant you relief.
If you think about the timing of a presidential election. Federal law requires military and overseas ballots to go out 45 days before election day. There are many states that likewise require domestic absentee ballots to be distributed 45 days before election day. Many states start early voting a month to a month and a half before election day. And so before those ballots can go out, they obviously have to be designed. They obviously have to be printed for voting machines, for early voting locations. There has to be logic and accuracy testing.
So you're looking at a situation where realistically, ballots have to be finalized about two months before-- two months before an election, trying to challenge a party's nominee, especially trying to initiate a new legal challenge to a party's nominee once the ballot printing process has begun. Once ballots have been distributed, regardless of the merits of your underlying claim, courts are going to be extraordinarily reluctant to step in at that late point and to try to basically change the candidates running in an election midstream or change what ballots say, mid midstream.
So I think that if we don't see-- if we don't see challenges imminently or certainly if we don't see challenges in the immediate aftermath of the Democratic party's nomination of their candidate simply the pragmatic considerations like the equitable considerations that go into issuing court orders, this doctrine of laches. Well, the lawsuits the court won't even get to the merits. The court will just say, you've waited too long, it's too late. We're not going to.
And of course, there's another doctrine called the Purcell principle, which the Republican dominated supreme court has given very strong teeth to saying you don't change the rules of an election shortly before an election is occurring. And so for all of these reasons, I don't think that there is much serious threat to an 11th hour lawsuit or a law, especially where the facts are known. This isn't a situation where a plaintiff can say there was some sort of unexpected surprise, last minute change.
President Biden has publicly announced his withdrawal. So I think any delays in bringing lawsuits are going to weigh heavily against the plaintiffs. And the reasons we discussed, even putting that aside precisely because he wasn't the party's official nominee yet. There isn't a-- there isn't a grounds for challenging for calling this replacement.
It's amazing the world we regrettably now live in when the speaker of the House is out there chirping about legal challenges that appear to have no basis. Could there be anybody that from either party that challenges the use of a virtual roll call nomination instead of a traditional convention? You've always told me that the courts and the constitution leave the primaries up to the parties to do whatever they want.
I wouldn't use exactly that language to be clear. But yeah, but yeah--
I'm sorry.
Parties have a fundamental first amendment right to select their standard bearers, to design the processes through which their nominees are chosen. So when you're talking about nominations and in particular when you're talking about presidential nominations, you're talking about an issue where parties have tremendous first amendment latitude. Again, there there are restrictions.
But I think that it would be again, anyone can bring a lawsuit over whatever they want as you know. But I think such a challenge to the virtual roll call procedure would be very difficult to get off the ground simply because, first of all, courts would likely say that any challenges to the procedures that the convention uses have to be brought before the convention itself.
So you would first have to exhaust all of your intra party remedies. You would first have to go to the DNC itself or the convention itself for relief. And frankly, by the time that occurs, the nomination process is almost certainly likely to be over. But even if a court were to reach the merits, they would say that the process that the party chooses to use to select, in particular its presidential nominee, is at the heart of its first amendment rights. So I would not see a challenge to the roll call getting off the ground.
OK. Monica, anything else?
Yeah, there were a couple more, just about the VP. And just strategically, if you could just remind the audience, if someone is a senator and they end up getting named as VP their seat, there's a special election. Or just what's the process if they end up becoming VP and then winning?
So again, there's a little bit of variation by state in terms of whether a special election is immediately held or in terms of whether the governor gets to make an appointment. State law also differs where there is an interim gubernatorial appointment. State law differs as to whether the governor is required to pick someone of the same political party or not, which would be a concern in states where you had a Republican governor and and a Democratic senator less so obviously, if both offices are held by someone of the same party.
Great. I think that covers all of it. And Michael Zimbalist, we did get a lot of questions about market impact. I think I know what your answer to that would be, but I thought I'd just say some other time.
Yeah.
I think look, it's really early. I'm surprised, frankly, at the people that are holding market impact calls today.
Yeah.
There's not a lot of light in between Biden and Harris policies and it's way too soon to I think assess the impact this has on the likelihood of potential outcomes. The nominations haven't even occurred yet. You don't know who the party candidate is. There are reports that Harris's selection has unleashed a new wave of political donations to the Democratic party. There's a lot of pieces in motion here, and I think it's a little bit too soon to get into issues like that.
So for me, the most important takeaway on this whole call is to really understand who the pledged delegates are, where they come from and why this process appears to have wrapped itself up so quickly when you had a lot of very powerful people calling for an open, brokered convention. And that's really where I think Michael's explanations of who those delegates are, how they get picked, and where their sympathies lie is a quick answer-- is an important thing to understand as it relates to why we are where we are less than 48 hours after this whole thing began.
So with that, I'd like to thank Michael a lot. I'm sure we'll be hearing from him again before we get to the end of this whole thing. And thanks to you, Monica, for participating as well. And we'll see all of you soon. Our big small cap paper comes out tomorrow. It's called the lion in winter. Take a look bye.
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All right. Good afternoon, everybody. This is Michael Zimbalist with JP Morgan. And I'm here to welcome you to participate in a special webcast we're doing on the political situation. As a reminder, this webcast is closed to the press. And secondly, if there's anything that we don't get to during this call and you want to ask a question and it's within the bounds of reason, we will do our best to answer it.
You can type it into the portal that you use to join the call. So reasonable questions only I'm begging. So I am joined here by Michael Morley from Florida State University. Michael is a graduate of Princeton, went to Yale Law School. He teaches and writes in the areas of election law, constitutional law, remedies, and the federal courts.
He's testified before Congressional committees and election officials. He's participated in bipartisan groups to develop election reforms. He's been published in the Georgetown law review, Virginia law review, Northwestern, et cetera, and also clerked for the fourth largest, not the fourth largest judge, the fourth longest serving federal judge.
And more important than that, Michael has been indispensable to me over the last four years and has helped me on issues that you've read about in the Eye of the Market related to the electoral count act, the electoral count Reform act, a faithless elector, third party candidates, the No Labels movement, the recent supreme court rulings, Chevron deference, brokered conventions and contingent elections and things related to the 12th amendment.
So before we kick in, I do want to say that in January, in our outlook this year, I had a top 10 list of surprises in honor of Byron Wien, who had passed away. And Byron Wien always did that in his pieces. And the third item on my top 10 list in January was president Biden withdraws sometime between super Tuesday and the November election, citing health reasons. Now, there you go.
Now, to be clear, I didn't have any inside information. I had a chart that looked at the mortality adjusted age of people running for president going back to the 1790s and the pairing of Trump and Biden was the second oldest even after adjusting for life expectancy. So that was not as brave a call as it might have seen. So I have 10 questions for Michael. So let's, let's dig in.
So president Biden has endorsed vice president Harris. And as of this afternoon, a lot of other potential contenders have fallen in line, whether it's, all the governors. And so the first question I think we have to ask is, is it possible that the Democratic party will proceed with what they've been talking about, which is a virtual roll call nomination even before the convention? And I think you've mentioned something like early first week in August as opposed to the convention date of August 19.
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Yes so it's up to the Democratic party itself, obviously, to decide whether to proceed with the virtual roll call. I think that it's likely to do so for two main reasons. First, proceeding with the roll call eliminates even the small possibility of election litigation with regard to whether or not the party's nomination is made in accordance with state law deadlines.
There's no realistic world in which the Democratic candidate is not going to appear on the ballot in any state. But nevertheless, by having the-- by having the official nomination made before the convention itself early in August in this virtual roll call, it makes any such litigation even harder to try to get off the ground.
And secondly, as a practical matter, consolidating around a nominee sooner rather than later is a political advantage to the party to lessen the opportunity for infighting or for hostility within the party itself to generate.
OK. Now, at a typical convention, upfront there are votes that take place to approve the rules and the credentials of the attending delegates. And how would this work in a virtual convention if, to the extent that you can speculate, may not have happened before? And do you think the party will try to go through all the necessary procedures so that the virtual nomination is essentially binding, after which the actual convention would just be like a political rally?
All the indications are that the virtual roll call would be intended to lead to a legally binding nomination, which in turn then would allow the Democratic party to certify its presidential and vice presidential nominees to all of the states in order to alleviate those potential concerns about filing deadlines. So it would be much more than just a zoom call where everyone identifies a particular candidate they're voting for. It would likely replicate most of the key procedural requirements that the rules state have to occur at the convention.
So in all likelihood, there would be virtual approval of a credentials committee report in order to resolve any disputes that may arise over whether particular delegates should be seated or not. There would be consideration and approval of the rules committee report, which set forth the key rules that govern both the nomination process as well as the convention. And then, after credentials have been settled, after the rules have been adopted, then the virtual roll call would proceed to selecting the presidential and the vice presidential nominees.
OK. So let's talk for a minute. When I mentioned to-- that I was doing this call, a lot of clients and colleagues reached out to me and said, how does one become a delegate? How are these delegates chosen? And the reason this is important is, as you've explained, the delegates that would be voting for Harris in the first round are not the super delegates, which are essentially the automatic delegates that are sitting governors, party officials, senators, and House members.
Where do the rest of those pledged delegates come from? And might their politics be different from sitting politicians?
So it's helpful to think of the convention as being comprised of four main groups of delegates. The first you alluded to the-- what are called the automatic delegates, often referred to as super delegates in the press. These, as you mentioned, are current elected federal officials of the Democratic party. So the sitting president, Biden and vice president Harris are both are both automatic delegates.
All of the Democratic members of congress, all of the Democratic members of the senate, Democratic governors, DNC members, as well as former DNC chairs, former Congressional leaders, past presidents and vice presidents. They are all unpledged automatic delegates. The second category is what's referred to as base district delegates.
These are delegates elected on a district by district, chosen, I should say, on a district by district basis within each Congressional district. And it's up to the state Democratic parties to decide how these base district delegates are chosen. And there's really two main ways. Either they can actually have their names appear on the primary election ballot, along with the presidential candidate that they elect.
So if you're voting for president Biden in the Democratic presidential preference primary in those states, there would be the names of the delegates from that Congressional district who would be pledged to him if he won. Or instead, a state may choose to have caucuses of each candidate's supporters within each Congressional district to decide which-- to decide which delegates from that district will get sent to the convention to support that candidate.
So these are the majority of delegates attending the convention. And again, they're selected on a district by district basis. There's the third category is what's referred to as the at large base delegates. And these are delegates selected on a statewide basis. And again, it's up to the state party of each state to determine how to select their at large delegates.
They can either choose to elect them at their state party conventions. They can choose to have the district level delegates, choose the state level delegates, the at large delegates or the state party committee itself, under certain circumstances, is allowed to choose the at large delegates. And then finally, there's what's referred to as the PLEO delegates. The party leader and elected official delegates, P-L-E-O delegates. And this is basically, however many base delegates you have taking into account district and at large, 15% of you get an additional 15% as your PLEO delegates. And these are state officials, county officials, local officials.
And again, it's up to the state party of each state to determine how their PLEO delegates are going to be chosen. It can again be at the state convention. It can be chosen under certain circumstances by the state party committee itself. The party can allow the district level delegates to choose the PLEO delegates. So for each category of delegates other than the automatic delegates, presidential candidates have influence over who they are.
And that's why I'm-- that's why I'm asking because to me, there's an important thing that I think a lot of people are missing, which is even before the governors lined up behind Harris today. To the extent that a lot of people have been reading over the last 48 hours, that there were some major donors and members of Congress pushing for an open convention.
But the pledged delegates, which are voting in the first round, whether it's a virtual or in-person convention, are typically not just party loyalists, but Biden appointed loyalists who would be much more inclined to vote for Harris in the first round. And correct me if I'm wrong, all Harris would need is a simple majority of pledged delegates in the first round of voting to receive the nomination. Is that right?
That's exactly right. In the first round of voting, the rules provide that automatic delegates, the super delegates, don't participate unless a certification is made that one of the presidential candidates has a majority of pledged delegates already, in which case then they would be participating in an acclamation and essentially a ceremonial role. But since all of the pledged delegates have now been released or all of president Biden's pledged delegates have been released due to president Biden's withdrawal from the race, we presumably wouldn't be entering into the convention with a majority of pledged delegates, which means, as you said, the superdelegates would not participate in the first round of voting. And president--
And the pledge delegates-- and the pledge delegates that would be voting, one I think we'd have reason to believe would have higher allegiances to the president and his endorsed candidate. And so I think even if there were movements at some point over the last week for an open convention from donors and sitting members of congress, that their arguments would fall on deaf ears to some of the pledged delegates that would be making the determination.
Yes. As the name suggests, all of these pledged delegates are people who chose to pledge their support to the Biden, Harris ticket. And so now the president Biden has withdrawn. He has thrown his support to vice president Harris. I think you're exactly right. It would be very reasonable to expect these people would continue their support of vice president Harris. These people would be disproportionately likely to go along with the president's support of her-- the president's endorsement of her.
Next question is, would vice president Harris need to declare a running mate before the first round of voting at a virtual convention, or would that simply be an option on her part?
They're certainly under the party rules, there's not a formal requirement of that. There's certainly no legal requirement of that. Historically, going into conventions, the vice presidential nominee has often been announced within a few days of the start of the convention. Certainly, there are political advantages to identifying your vice presidential running mate, your proposed vice presidential candidate ahead of time simply because that person is then base of support will likely join with yours and simply help you secure your nomination.
You obviously a lot of times the choice of a vice presidential candidate is made with at least one eye toward helping someone secure the presidential nomination. And so yet again, announcing ahead of time, making a public record of that is to a presidential candidate's advantage.
So even if the virtual convention were on August 1st. There's a good chance that you think that a vice presidential candidate would be named even before then.
Well, again, not officially. Right vice president Harris could simply publicly announce, here's who my running mate is. Here's what our ticket is going to be. And then at that virtual roll call, after vice president Harris or someone else receives the presidential nomination, it would then likely proceed immediately into the vice presidential nomination.
OK. Got you Now Before their-- the House speaker mentioned legal challenges and things like that. Before getting into the specifics of that, could you just quickly cover this, because I think it's important. A lot of our clients mistakenly use the words delegates and electors interchangeably, and they're definitely not the same thing. And can you explain the difference-- the important differences between the primary process and the general elections, particularly as it relates to the how the courts assess any legal challenges to.
Sure so with regards to the possibility that some people have been raising in the press about legal challenges to president Biden's withdrawal. The important thing to recognize is president Biden has not yet officially been nominated as the Democratic party's president. Right? At most, he is currently the presumptive nominee. We have not yet had the virtual roll call the DNC is anticipating holding.
We certainly have not had the Democratic national convention. So as of right now, president Biden is not officially the Democratic party's nominee. And even before his withdrawal, he was not officially the nominee. So therefore, when you see references to state laws about the withdrawal of candidates or state laws about the change of candidates, those statutes are completely inapplicable to this situation simply because the Democratic party hasn't nominated its candidate yet.
And the simple fact that president Biden might have won the presidential preference primary or other presidential preference contest in a particular state doesn't mean that he therefore has to appear on the general election ballot for president in that state, right? There's any number of reasons why a candidate might win a particular presidential primary and yet not go on to become their party's nominee.
So the simple fact that president Biden won one presidential preference primaries in the state doesn't mean he is presumptively going to be on the general election ballot, doesn't mean he needs to withdraw as a candidate in that state. We're in a pre nomination stage right now.
And so the real the only slight concern that the Democratic party has been dealing with is just making sure that their candidates by state-- by their presidential and vice presidential candidates, by state deadlines, concerns about withdrawing, and do states allow changes to general election ballots? Those those those aren't even really in the picture.
Yeah. I remember reading that in the 50s. There were a couple of times when the winner of the majority of delegates didn't even become the nominee at all. And I think the party proposed Adlai Stevenson a couple of times, even though he didn't even win the majority of delegates. Do I have that?
In the 52 convention, he actually ultimately did wind up going on simply because one of the he did not have the most candidates going-- the most delegates going in. But after several rounds of voting, then the some of the lower tier candidates dropped out and threw their support to him to eventually put him over the top.
So just because you're going into a convention with the most delegates, particularly if you're short of a majority, doesn't necessarily mean you're going to win. And of course as we'll we'll talk about later. There's always or there are there historically there are frequently been attempts to try to manipulate the rules governing political conventions in order to-- in order to try to game the system and influence the outcome one way or the other.
Just for completeness, and I wrote about this last year with your help, even if Biden had accepted the nomination and then two weeks later decided to withdraw as a candidate for president the rules would allow the DNC to replace him. And then in some states, the new person the DNC would anoint would have their names on the ballot. In other states, it would be too late to change it. So biden's name would stay, but a vote for Biden would just end up being a vote for the new candidate anyway.
Right. When you vote for a presidential candidate. So if you press-- the press the button on the voting machine for Joe Biden or kamala Harris, legally speaking, your vote doesn't actually count as a vote for that person. Rather, that counts as a vote for the slate of candidates for the office of presidential elector that the state's Democratic party has nominated.
And in many states, those presidential electors names don't even appear on the ballot. Most people have no idea who they are-- who the Democratic or Republican candidates for presidential elector are. And so, regardless of the candidate's name that appears on the ballot, if you press the button or if you cast your ballot for the candidate of a particular political party, no matter what the ballot says, it's going to be the presidential electors who have been nominated by that party that receive that vote.
So it's primarily be a political issue in terms of, obviously, you'd rather have your current candidate's name appear on the ballot. But again, in the hypothetical that you raised, that was assuming that president Biden actually received the nomination officially was the nominee. It's much easier for the Democratic party at this stage simply because he's not the nominee. So they don't even have to worry about changing the candidate they certified.
Right. Got you. OK. Let's talk about money. There's been a lot of commentary on around $100 million of cash on hand that was raised for the Biden, Harris campaign. And so a couple of questions. I think the easy one is, can Harris use those funds without restriction? But then the other question, just for completeness, again, if for whatever reason, Harris did not end up being the presidential nominee, what restrictions would exist on a different candidate having access to that money? There are some reports that they would have to revert back to the DNC or some kind of superpac.
So again, this is a situation where we're in somewhat of uncharted waters. But the president Biden's campaign committee had kamala Harris on it already. She was a certified candidate along with him associated with that committee. And so the committee, as a matter of fact, since she announced the committee has changed its name. It still retains, still retains the same FEC number, still has the same cash on hand.
But this was the easiest possible-- the easiest possible variation, simply because Harris was already associated with that committee as one of its candidates. And so this presents the strongest case for her being able to keep those funds, being able to use those funds.
And frankly, regardless of who goes on to win the nomination, that as of right now that is her-- that is her campaign committee. She has access to those funds. There are rules that allow candidates to transfer funds to their political party. So if she wound up not becoming the presidential nominee, she could transfer those funds to the DNC.
She could turn her committee from a candidate committee into a political action committee. So in the event she weren't successful, she didn't receive the nomination. There would still be alternatives available to her to ensure that the funds are used in support of the Democratic candidate, either through the party or by turning-- or by turning it into a Pac or a super Pac.
Having said that, as of right now, she's the candidate. She's continuing to use funds available to her candidate committee in the event she goes on to-- she goes on to win the nomination, there shouldn't be barriers to her continued use of those funds. And I think the important thing to recognize here is even to the extent there is some uncertainty, because, again, we're in something of uncharted territory. And different experts on election law have staked out somewhat varying positions on the issue.
I definitely don't think that there would be four votes on the federal election commission to take any enforcement action against this, simply because there is a strong argument that could be made in favor of her use of the funds, both in seeking the nomination as well as if she obtains the nomination. And this is not situation where a court would say that the FCCs judgment in refusing to initiate an enforcement action is so far beyond the pale that it would step in enforcement.
If it weren't Harris for whatever reason and it were somebody else and that money were then transferred by Harris and Biden to the DNC. Could the DNC use that money in its entirety to solely support the candidacy of a new person? Because if that's the case, then money is fungible and then this is a non issue
So there are well, there are limits to the to the amount of money that a national party committee can spend in coordination with a candidate. Right so if the candidate, him or herself controls the funds, they can use all of those funds in whatever way corresponds most closely to their campaign strategy. If the national party committee has those funds, there's a limit to how much they can coordinate with the candidate.
They can work with the candidate in spending those funds. The rest of the money would have to be spent independently of the candidate. And again, there are ways of going up to the edge of coordination without actually crossing the line. But it would certainly be much easier for the candidate to simply be able to retain the funds themselves rather than have to deal with coordination limits with national parties.
OK. Again, under the category of completeness. If Harris weren't the nominee, and somebody else ran, a sitting governor or senator? What are the rules about whether or not for them to run, they would have to relinquish their seats to run and then would lose them if they lost?
So it varies by state with regard to federal incumbents. Current us senators, members, members of the US House of representatives. States are not allowed to add to the US constitution's qualifications, so states could not force members of the US senate or members of the US House of representatives to resign in order to seek another federal office. Whether it's the presidency or the vice presidency, resigned to run laws become much trickier when you're talking about state office holders. Because the issue then, as some circuits have framed it, is well, even though states can't set qualifications to run for federal office, they can set qualifications to run for or hold state offices.
So state governors or other state, local, county, local officials, if there were any, depending on the state, could potentially have to make choices and face resign to run laws. Florida I'll point out when governor Desantis was a candidate for the Republican nomination this election cycle, Florida amended its resigned to run law specifically to eliminate any possible concern that he would have to resign should he get the nomination or should become the presidential candidate, the Republican presidential candidate.
Got it. So in short, it's potentially an issue for governors and other state level officials, but not for federal officials. OK.
And I'll throw out one other interesting detail. By the way, there are some states where the governor cannot basically loses their official power while they are outside of the state's boundaries, that basically they only get to act as governor while they're physically within the state. So when they leave, then the lieutenant governor or whoever, basically the next in line is to the governorship, gets to assume power. And so as a practical matter, that could make it very difficult to campaign in states where that number two person is a Republican.
OK. Got it right. So a couple more questions to finish up and then we'll see if there's any interesting questions on the line. The last time we had a sitting president, followed by a vice president running, was Reagan's two terms, followed by Bush running and winning in 1988.
And I thought something you mentioned to me was interesting about how brief the tenure of cabinet positions are, because one of the things I was wondering is, how similar might a Harris administration be to a Biden administration? But then you reminded me about like running backs in the NFL last around two years. And I think the number was similar for cabinet members.
Go ahead. Yeah for top level political appointments, the average lifespan is between 18 to 22 months. Right now, again, obviously we there are exceptions on either end or much shorter, much longer. But on average, political appointees tend to last between 18 to 22 months. So even in the ordinary course of events, even with the same president going into a second term, much less a president transitioning into a vice president, I would expect there to be substantial turnover.
All right. That covers a bunch of the questions I had. My colleague Monica has been monitoring the line to see if there's any questions there. Monica, do you have anything to ask of Professor Morley?
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There were a few that, that came in, actually, a couple of follow ups. Your comments recently about the governor potentially leaving the state if there's a Republican lieutenant governor. Are there any states right now when you think of who's being floated as a potential VP candidate that give you pause? A number of people asked to dig into that a little bit more.
Off the top of my head, not immediately. You certainly I would want to-- there are some I would want to look into. North Carolina comes to mind as one that I would want to look into both the law there as well as political alignment. Certainly with a state like California, that becomes much less of a concern.
Sure. And then we had a number of questions as well regarding the VP pick. Can they be from the same state as Harris if she ends up being the nominee for president? There seems to be a lot of confusion about that.
As a practical matter, no, the reason is because the constitution says each presidential elector gets to cast two electoral votes, one for the office of president, one for the office of vice president. The constitution specifies that an elector can't cast both of their electoral votes for someone from their own state. And this goes back to-- this goes back to the original constitution before the 12th amendment where rather than having a separate electoral vote for president and vice president, electors just cast two electoral votes.
And whoever got the most so long it was a majority became president. Whoever got the second highest number so long as now wound up becoming a vice president. Much of this is covered in Hamilton. You've seen that. And so as a result, the thought was, OK, among the 13 colonies, everyone's going to throw-- every elector is going to throw one of their electoral votes away for some favored local son. And so it's going to be that second electoral vote that's going to be the real vote for president.
And we're going to-- so we're going to force that to be for someone from a different state from the elector. And that's going to be the vote for people from who have a national profile. And so the framers of the 12th amendment retained that requirement when they shifted from to generic electoral votes to one for president, one for vice president. And so it would simply be the reason why you would want to have your vice presidential candidate be from a different state is so that you don't jeopardize your electoral votes from your state.
But having said that, it's a very low barrier to be able to change state domicile. As a matter of fact, this was a concern in the 2000 election where both George W Bush and Dick Cheney were residents of Texas. Cheney relocated to Wyoming. He changed his domicile to Wyoming. He changed his voter registration. He went through all of the indicia of Wyoming residency.
And in fact, there was a court case that threw out a challenge to his residency. But also in the course of that opinion, recognized that he had-- that he had qualified for-- that he had qualified for Wyoming residency. So even in the event there were a situation where whether it's, Kamala Harris or someone else wanted their running mate to be from their state, it would be very easy for that running mate to establish domicile in a different state to avoid potential 12th amendment concerns.
Great. That makes sense. And I think the other big question that kept coming through was more about really everything that we talked about, which is we walked through all the potential challenges that could come up. And it doesn't seem like you're particularly concerned about any that we covered. Is there anything just seemingly obvious to you that you worry that we think might come up in a challenge, say, a month from now, two months from now? There's a lot of consternation on the line from people saying, what if republicans are lying low now, but in two months try to come challenge something? Is there anything that feels obvious that you'd want the democrat or you think the democrats need to think about?
So if anything, the longer legal challenges are delayed, the less likely they are to be successful. There's a legal doctrine called Laches, which basically says, even if you have a good legal argument, you waited too long to bring it. You prejudiced the other side. There's basically too much water under the bridge. We're not going to-- we're not going to grant you relief.
If you think about the timing of a presidential election. Federal law requires military and overseas ballots to go out 45 days before election day. There are many states that likewise require domestic absentee ballots to be distributed 45 days before election day. Many states start early voting a month to a month and a half before election day. And so before those ballots can go out, they obviously have to be designed. They obviously have to be printed for voting machines, for early voting locations. There has to be logic and accuracy testing.
So you're looking at a situation where realistically, ballots have to be finalized about two months before-- two months before an election, trying to challenge a party's nominee, especially trying to initiate a new legal challenge to a party's nominee once the ballot printing process has begun. Once ballots have been distributed, regardless of the merits of your underlying claim, courts are going to be extraordinarily reluctant to step in at that late point and to try to basically change the candidates running in an election midstream or change what ballots say, mid midstream.
So I think that if we don't see-- if we don't see challenges imminently or certainly if we don't see challenges in the immediate aftermath of the Democratic party's nomination of their candidate simply the pragmatic considerations like the equitable considerations that go into issuing court orders, this doctrine of laches. Well, the lawsuits the court won't even get to the merits. The court will just say, you've waited too long, it's too late. We're not going to.
And of course, there's another doctrine called the Purcell principle, which the Republican dominated supreme court has given very strong teeth to saying you don't change the rules of an election shortly before an election is occurring. And so for all of these reasons, I don't think that there is much serious threat to an 11th hour lawsuit or a law, especially where the facts are known. This isn't a situation where a plaintiff can say there was some sort of unexpected surprise, last minute change.
President Biden has publicly announced his withdrawal. So I think any delays in bringing lawsuits are going to weigh heavily against the plaintiffs. And the reasons we discussed, even putting that aside precisely because he wasn't the party's official nominee yet. There isn't a-- there isn't a grounds for challenging for calling this replacement.
It's amazing the world we regrettably now live in when the speaker of the House is out there chirping about legal challenges that appear to have no basis. Could there be anybody that from either party that challenges the use of a virtual roll call nomination instead of a traditional convention? You've always told me that the courts and the constitution leave the primaries up to the parties to do whatever they want.
I wouldn't use exactly that language to be clear. But yeah, but yeah--
I'm sorry.
Parties have a fundamental first amendment right to select their standard bearers, to design the processes through which their nominees are chosen. So when you're talking about nominations and in particular when you're talking about presidential nominations, you're talking about an issue where parties have tremendous first amendment latitude. Again, there there are restrictions.
But I think that it would be again, anyone can bring a lawsuit over whatever they want as you know. But I think such a challenge to the virtual roll call procedure would be very difficult to get off the ground simply because, first of all, courts would likely say that any challenges to the procedures that the convention uses have to be brought before the convention itself.
So you would first have to exhaust all of your intra party remedies. You would first have to go to the DNC itself or the convention itself for relief. And frankly, by the time that occurs, the nomination process is almost certainly likely to be over. But even if a court were to reach the merits, they would say that the process that the party chooses to use to select, in particular its presidential nominee, is at the heart of its first amendment rights. So I would not see a challenge to the roll call getting off the ground.
OK. Monica, anything else?
Yeah, there were a couple more, just about the VP. And just strategically, if you could just remind the audience, if someone is a senator and they end up getting named as VP their seat, there's a special election. Or just what's the process if they end up becoming VP and then winning?
So again, there's a little bit of variation by state in terms of whether a special election is immediately held or in terms of whether the governor gets to make an appointment. State law also differs where there is an interim gubernatorial appointment. State law differs as to whether the governor is required to pick someone of the same political party or not, which would be a concern in states where you had a Republican governor and and a Democratic senator less so obviously, if both offices are held by someone of the same party.
Great. I think that covers all of it. And Michael Zimbalist, we did get a lot of questions about market impact. I think I know what your answer to that would be, but I thought I'd just say some other time.
Yeah.
I think look, it's really early. I'm surprised, frankly, at the people that are holding market impact calls today.
Yeah.
There's not a lot of light in between Biden and Harris policies and it's way too soon to I think assess the impact this has on the likelihood of potential outcomes. The nominations haven't even occurred yet. You don't know who the party candidate is. There are reports that Harris's selection has unleashed a new wave of political donations to the Democratic party. There's a lot of pieces in motion here, and I think it's a little bit too soon to get into issues like that.
So for me, the most important takeaway on this whole call is to really understand who the pledged delegates are, where they come from and why this process appears to have wrapped itself up so quickly when you had a lot of very powerful people calling for an open, brokered convention. And that's really where I think Michael's explanations of who those delegates are, how they get picked, and where their sympathies lie is a quick answer-- is an important thing to understand as it relates to why we are where we are less than 48 hours after this whole thing began.
So with that, I'd like to thank Michael a lot. I'm sure we'll be hearing from him again before we get to the end of this whole thing. And thanks to you, Monica, for participating as well. And we'll see all of you soon. Our big small cap paper comes out tomorrow. It's called the lion in winter. Take a look bye.
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Michael Cembalest is the Chairman of Market and Investment Strategy at JP Morgan Asset Management. Since 2005, Michael has been the author of the Eye on the Market, which covers a wide range of topics across markets, investments, economics, politics, energy, municipal finance and more.
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