Washington rule could leave Biden off the November ballot, but state has a solution

(WASHINGTON) — Washington state has just joined Ohio and Alabama in signifying through election officials that President Joe Biden could be left off their general election ballots due to conflicts between the dates of the Democratic National Committee’s nominating convention and state ballot deadlines. The Evergreen state, though, appears to have already proposed a way for the Democrat to remain eligible.

On Thursday, the director of elections at the office of Washington’s Secretary of State sent a letter — obtained by ABC News — to DNC Chair Jamie Harrison, warning that the deadline for ballot certification under state law falls on Aug. 20, the day after the DNC convenes in Chicago to nominate their presidential and vice presidential selections.

Stuart Holmes, the Director of Elections under Democratic Secretary Steve Hobbs, signaled that their office would make an exception for the party if they submit a provisional certification of nomination no later than Aug. 20, according to the letter.

This comes as Ohio and Alabama’s Republican Secretaries of State over the past week have indicated they’d enforce similar state election codes in a way that experts have said is unprecedented and perhaps partisan in nature.

Ohio Secretary of State Frank LaRose and Alabama Secretary of State Wes Allen have alerted Democrats about comparable conflicts between their respective state’s deadlines and the scheduling of the DNC convention in mid-August, cautioning that Biden’s nomination in Chicago comes too late to get on their general election ballots.

In Ohio, LaRose flagged in a letter last week that the DNC’s convention, set to begin on Aug. 19, would miss their Aug. 7 ballot certification deadline. In Alabama, Allen sent a letter to Democrats on Tuesday warning that their Aug. 15 cutoff would occur before the convention.

This scheduling conflict isn’t a new obstacle — a late August convention has occurred several times in past years for both parties — but states have historically avoided banning major party candidates from their ballots by either easily granting provisional ballot access, the way Washington is suggesting, or working through their legislatures to allow certification extensions.

But now, the red-state officials, experts say, are uniquely leveraging the issue against Joe Biden and Vice President Kamala Harris, the presumptive Democratic nominees, even as their predecessors made exceptions for former President Donald Trump and former Vice President Mike Pence to appear on their ballots when the when the RNC convention came too late for their certification.

“This has not been something anybody has ever dealt with. … [The GOP Secretaries] just cooked it up. No, this has never happened before,” Elaine Kamarck, a senior fellow at the Brookings Institution and a member of the Democratic National Committee, said.

Richard Winger, a ballot access expert and political analyst, agreed.

“These deadlines don’t exist for partisan reasons. … But it is kind of partisan this year,” he told ABC News.

“You have to go all the way back to 1964 to find a state that kept a major party presidential candidate off the ballot, and that had nothing to do with deadlines. … There’s never ever since been a major party candidate who was off the ballot in any state,” Winger added.

Do Democrats have a game plan to get Biden on the ballot?

Now, the Biden campaign, along with Democratic officials, are looking into ways to ensure the president will appear on the ballot in front of Ohio and Alabama voters.

In response to the news from Ohio and Alabama, Biden’s reelection campaign has maintained that “Joe Biden will be on the ballot in all 50 states.” They see this happening first by provisional certification (the process of formally notifying states before the convention that they expect Biden to be the nominee); second by changing the state’s election filing deadlines through the state’s GOP-controlled legislatures; third through litigation in court; and finally, by virtually nominating the Biden-Harris ticket ahead of their in-person convention.

Historically, in both Ohio and Alabama — and across a handful of other states — provisional ballot access certification has been granted to nominees of both major parties if they weren’t able to square their convention dates with state election code certification deadlines.

Ahead of the 2020 general election, Oklahoma, Illinois, Washington and Montana accepted provisional certifications from the DNC and the Republican National Committee. Alabama also accepted a provisional certification from Republicans that year in order to make Trump and Pence qualify.

In 2020, the Alabama legislature moved their certification deadline for that election only to Aug. 20, 2020, but that was still ahead of the Republican convention’s end a week later. The RNC then submitted a provisional certification, which was accepted by the state.

In Ohio, the Biden campaign has said they are in conversation with the Secretary’s office about steps forward in terms of provisional certification.

In a letter received by the Ohio Secretary of State and reviewed by ABC News this week, Democratic Ohio-based lawyer Donald McTigue said the Democratic party would provisionally certify Biden and Harris by the state’s Aug. 7 deadline and later confirm the results at the convention.

Ben Kindel, a spokesperson for LaRose’s office, said their legal counsel was in the process of reviewing the letter.

In Alabama, attorney Barry Ragsdale, representing the Biden campaign, sent a letter — obtained by ABC News — to general counsel for the Alabama Secretary of State’s office on Wednesday, saying the DNC could provisionally certify Biden and Harris as party nominees by the state’s Aug. 15 deadline and then later confirm the results at the convention.

“This proposal avoids the constitutional problems that would arise if your office were to interpret Ala. Code § 17-14-31(b)’s certification deadline to preclude President Biden and Vice President Harris from appearing on the Alabama general election ballot,” Ragsdale wrote.

“It would allow the many Alabamians who support President Biden and Vice President Harris to exercise their fundamental constitutional right to meaningfully participate in the presidential election,” he added.

In response to the letter, Allen said in a statement to ABC News that he would not provide “for ‘provisional certifications’ or any other exceptions.”

If provisional ballot certification cannot be achieved, the Biden official said their strategy would shift to the state legislatures. This legislative action has worked not only in Alabama but also in Ohio, where laws were passed ahead of both the 2012 and 2020 elections to skirt around the state’s 90-day deadline for nomination ahead of an election. These laws aided both Republicans and Democrats in getting their candidates on the ballot, most recently in 2020, when Democrats and Republicans both held conventions ahead of the deadline.

In their initial letter to Democrats, legal counsel for Secretary LaRose gave two options: either move up the date of the DNC convention or by May 9, the state’s GOP-led legislature would need to pass a law allowing for an extension.

In the days following Alabama’s warning to Biden, Democratic state senator Merika Coleman introduced a bill that would move the state’s deadline back to Aug. 23, after the DNC Convention.

One of the final courses of action would be through litigation in court, which the Biden campaign claims they have a “strong case” for.

In their letter to Alabama leadership, Biden’s counsel wrote that “a court would have little difficulty finding that strict application of the eighty-two- day deadline imposes a severe restriction on President Biden and Vice President Harris’s access to the ballot,” arguing that the state’s actions in barring the presumptive nominees were “unjust and unconstitutional.”

Courts might even cite the recent Supreme Court decision on Trump v. Anderson, the challenge that sought to bar Trump from Colorado’s GOP primary ballot, as the high court’s justices ruled that states have no power to bar candidates for federal offices – especially the Presidency — from appearing on the ballot.

The final step would be for the DNC to hold a virtual vote to nominate the Biden-Harris ticket before their August convention.

“If for some reason they don’t do the provisional certification, there’s the legislature. If, for some reason, the legislature doesn’t play ball and we have litigation, the case for litigation is really strong. But if for some reason we are unsuccessful, then we have this procedure on this that the DNC can use and like completely nullify the issue,” a Biden campaign official said to ABC News.

“So bottom line is we’re gonna be on the ballot in both these states,” they added.

ABC News has requested comment from Washington’s Secretary of State.

ABC News’ Kendall Ross contributed to this report.