The Rules of Nomination, not Wishful Thinking, will Determine the Democratic Nominee

New episode on The Odd Post Podcast: DC punditocracy is letting readers down by not grappling with nomination rules that make it all-but impossible to do what they demand: that Democrats dump Biden

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Much of the conversation about whether Biden will be the Democratic nominee is being driven by panic and wild theorizing. No pundit that I can see is confronting the mechanics of how the DNC nomination rules work, or the fact that since Biden has won the primary by a vast margin, the nomination is his as long as he wants it.

Instead, pundits across the media are focusing on palace intrigue and insider leaks. Tea leaf reading has run amok—even though what will determine the nomination is not the hints by Democrats that they are “open” to this or that but what Biden chooses to do.

A great deal of wishful thinking is afoot. Every pundit with a platform is opining on their dream ticket. Bill Kristol of the Bulwark threw out the names of Mikie Sherrill and Abigail Spanberger, two representatives who have not shown the slightest interest in running; and ignores that other sections of the party have different preferences, which is exactly why we hold primaries in the first place.

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Politico ran an entire column comparing seven popular Democrats from around the country as potential replacements for Biden—an exercise better suited to early 2021, not July 2024, given that not a single one of these replacements have even approached building a general election campaign (except Harris, who is on the ticket).

Some are calling Biden “stubborn” for not voluntarily removing himself from the running—a demand that no primary winner or elected official has ever been subjected to. Some Democrats, apparently, “have resigned themselves to Trump” for reasons that I cannot fathom, considering that the 538 aggregate of polls has barely budged. Biden was a slight underdog before his disasterous first debate, and remains a slight underdog after. The fundamentals of the race appear to not have been affected by the debate.

It’s time for some real talk.

Those who want to deny Biden the nomination must focus on how the nomination rules work, to see if they have a means to do so. The rest is just ungrounded panic and fury.

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In order to get my facts straight, I spoke to David Atkins. He is a longtime progressive activist who got his start as a volunteer in the Howard Dean campaign in 2004 and is now a member of the DNC. Whether on Twitter or in his writings in the Washington Monthly, I have found him to be a grounded and values-driven voice, and was very grateful for his knowledge.

I want to stress that any opinions expressed here are my own. I only relied on Atkins to get an understanding of DNC rules.

It’s Biden’s call to make

“I think that in reality, unless Joe Biden himself were persuaded to withdraw, that functionally speaking Biden would win the nomination among the votes in the first ballot,” Atkins told me.

This is the first thing to understand. Much of the discussion has swirled around who “should” be the nominee and whether Biden “should” step down.

This framing gives us the illusion of control. To a large extent, that ship has sailed, because Biden won the primary in an overwhelming way and the nomination is his for the taking.

The point of the primaries is to elect delegates. Delegates are political insiders—supporters of the party and of the candidate, who later go on to pick the nominee at the August convention.

The last primaries were held on June 8. In total, 3979 delegates were up for grabs: the Biden-Harris ticket won 3904, which comes to 98%. The runner-up was “Uncommited” with under 1% of the delegates.

Some have opined that Biden’s primary victory should not count because no one credible ran against him. But this is simultaneously not true, and irrelevent when it comes to the process.

One person who ran against him was RFK Jr. He only stepped out to run as an independent after finding no traction in the Democratic primary. As an independent though, he has drawn some amount of devoted supporters.

Another person who ran against him was representative Dean Phillips. In any world, a two-term self-funding Congressman who usurped a decades-long Republican seat counts as credible. That he found no traction among primary voters is another matter.

The calls from the media for Biden to step down have fallen on deaf ears. Biden has a long-standing distrust of DC punditry—he has often expressed the view that they focus too much on palace intrigue and not enough on what his administration has achieved. He’s not wrong.

Given their lack of control over Biden’s decision, much of punditry has turned to Democratic insiders—reporting on leaks of members expressing doubt about Biden’s candidacy.

On Thursday the Bulwark laid this out in stark terms: can Democratic elites get Joe Biden to step aside? It featured a quote that began: “Letting him continue to run….”

The language betrays the fallacy. No one “lets” winners of elections and primaries run. Their mandate comes from the voters. Biden is an independent actor: Democratic elites are not the boss of him, nor is he the boss of them. In fact, the Democratic party has no boss: no smoke-filled rooms with cigar-chomping power-brokers.

While obviously party elites have persuasive power, what many people miss is that they have no actual control. For every Al Franken who bows to party pressure and sees himself out, there is a Bob Menendez who waits out the calls to resign until the news cycle shifts.

For that matter, the leaks thus far have not amounted to a Democratic chorus: for every Democrat who has expressed concern about his candidacy, other popular Democrats with a national followings are backing him to the hilt, such as Bernie Sanders, AOC, John Fetterman, Jasmine Crockett and the Congressional Black Caucus.

So what are the levers of control? Let’s turn our eyes to the convention.

The Convention

In August, the Democrats will gather in Chicago (ominous locale), where through a series of ballots, the nominee will be chosen.

Now the 3979 delegates that are awarded through the primary process are all “pledged” delegates. There are three types of pledged delegates, but for our purposes, the distinctions don’t matter. What matters is the word “pledge”: it implies that the delegates are obliged to back the horse they rode in on. In this case, for the vast majority, it is Biden.

According to these rules, the nominee is chosen by a series of ballots. In the first ballot, only the 3979 pledged delegates are permitted to vote. They are each obliged to vote for the candidate they are delegated to. If during that round, a majority picks a candidate, that candidate is the nominee. It is over. The majority number this year is 1990 delegates.

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Now until the 2016 presidential election, the last remnant of the smoke-filled rooms still survived in the form of superdelegates. These are party luminaries: Democratic governors, elected leaders, former presidents, DNC members, etc. They are unpledged, which means they can vote for whoever they like. As such, if the delegate count is close, superdelegates have the power to decide the nominee.

Some might remember that in 2016, during the momentous nomination battle between Bernie Sanders and Hillary Clinton, Sanders supporters had expressed a great deal of angst that the party bosses might come in at the end and bigfoot their candidate out of the running even if he won the majority of delegates. Ultimately it did not play out that way, but the anxiety was real.

The DNC listened to their concerns. They changed the rules so superdelegates had no power to do so any more. According to the current rules, superdelegates are not permitted to vote in the first round. In other words, through a series of rule changes, the party bosses of old have shorn themselves of agency in deciding the race. The agency now belongs to primary voters—in other words, us.

This year though, superdelegates were going to be moot anyway because Biden has won too many delegates to matter. He is surpassingly likely to win the nomination, as long as he stays on as candidate.

An in-party coup?

Now the language in the DNC rules actually gives pledged delegates out, to be used in rare cases.

“It's very important to note that in the call for the 2024 Democratic National Convention in Paragraph F(2)(d), it says all delegates to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them,” Atkins said.

It’s that clause, “in good conscience,” that some have seen as a means to deny Biden the nomination, especially since, as Atkins pointed out, new information might have come to light since the primaries, and also because several states didn’t even hold primaries once Biden had no opposition.

Could a majority of pledged delegates make the determination that the good conscience clause leads them to vote for a candidate other than Biden?

To clarify the stakes here, this would be the scenario where Biden chooses to stay on as a candidate—but the nomination is denied to him. It would essentially be a within-party coup.

How would this work? For one thing, one cannot beat something with nothing. Candidates who want to pull off a within-party coup would have to start courting pledged delegates to shift allegiances to them.

This is no easy task: it would involve convincing almost 2000 party operatives that their good conscience leads them to vote in a different way than the people who sent them to Chicago obliged them to.

There isn’t much time left until the convention, so we would be hearing about this effort by now. Challengers would have made their intention to run clear. There would be a social media effort that feeds “he’s running/she’s running” speculation that is Twitter’s bread-and-butter. We would be hearing of partisans making frantic calls to delegates to get them to switch allegiances. Tensions would be rising between the Biden camp and the challenger’s camp. The press would be filled with insider-driven stories with each camp running the other down.

The challenger—whoever it is, Gavin Newsom, Gretchen Whitmer, Hillary Clinton, Michelle Obama, Josh Shapiro, or any of the names people have thrown out in recent days, would have to come to the fight with a knife in their teeth, ready to slash their way to the top, fighting off the partisans of the Biden camp and the Harris camp.

You would have seen them hire a delegate wranger type of campaign manager—remember back in 2016, when Trump was expecting a floor fight at the convention, he hired Manafort—one of his specialties aside from the Russia connection was that he was adept at convention wrangling.

What we have actually seen is—crickets.

Newsom has been out in the midwest campaigning for the Biden-Harris ticket. Whitmer has repeatedly tweeted support for the Biden-Harris ticket. The others are focused on their states or their lives.

“The chances of that happening are essentially zero,” Atkins said, when I laid out the within-party coup scenario to him. “But yes, that is what they would have to do.”

The situation is not much different if Biden decides to step down and the nomination is denied to his vice president, Kamala Harris.

“I mean, frankly speaking, the party would be incredibly irresponsible turning its back on incredibly important parts of its base,” Atkins said, “if it were to overlook and pass over the vice president who is a woman of black and Indian descent.”

Once again, we have seen no prominent Democrat willing to put up a fight of this sort.

Open convention

In the extremely rare circumstance that both Biden and Harris decide they want to step down, the convention would be held with no presumptive nominee.

This is called an open, or a brokered, convention.

The notion of an open convention received a lot of buzz back when Ezra Klein advocated it from his perch at the New York Times in February.

In this scenario, delegates arrive at the convention with no presumptive nominee. Then, delegates choose between candidates who throw their hats in the ring through a series of ballots, hopefully with no intramural chaos. It would be a highly abbreviated primary process where only the 4000 or so party insiders are allowed to vote, and people out in the states do not get a say.

To Ezra Klein and other proponents of the open convention who think this can work smoothly or be perceived as fair, I would say, have you met the Democratic party? The Democratic party I know is a coalition of disparate interest groups, groups that are often more fired up with rage at each other than at the Republicans.

“There are many people who have Aaron Sorkinesque fantasies about how cool an open convention would be,” Atkins said. “It would not, it would be incredibly destructive.”

Fortunately, we do not seem to be headed to this eventuality, because the notion of both Biden and Harris stepping down is extremely remote.

An orderly transition if one is needed

What that leaves us with, and for many, this will come as a relief—are only two real possibilities: either Biden decides to keep his bid alive and is nominated, or he chooses, of his own accord, to step down and throw his support to Harris.

“I think it's important to note that if that does happen, it's not as chaotic as many people are saying it is,” he said. “All that would need to happen is, literally Joe Biden says I want all my delegates to vote for Vice President Harris. Then all the delegates vote for Harris on the first ballot and it's a done deal like this. It's not complicated.”

A Harris ticket would also be able to use the $100 million in campaign funds that have been raised in a way that other candidates cannot.

But, Atkins said, if Biden stays in the running, “[he] will be the nominee and we will do our best to elect him.” And if he steps aside, “then I expect it will be an orderly transition to Kamala Harris and we will do our best to elect her.”