Democratic President Joe Biden's reelection campaign is wrangling with Republican-dominated state governments in Ohio and Alabama to assure he is listed on their fall ballots, as once-mundane procedural negotiations get caught up in the nation's fractious politics.
Both states, which control a combined 26 electoral votes, have deadlines for appearing on the ballot that precede the Democratic National Convention in mid-August in Chicago. Lawyers for Biden's campaign have asked their secretaries of state to accept provisional certifications before the cutoff, which would then be updated once Biden is formally nominated.
That's where things have gotten sticky.
Alabama Secretary of State Wes Allen told The Associated Press that he will not accept a provisional certification because he does not have legal authority to do so. Allen said he sent a letter to the Alabama Democratic Party notifying them of the date problem as a "heads up" so they could address the issue.
"I'm not denying anybody. I'm just telling them what the law is," Allen said. "I took an oath to uphold Alabama law and that's what I'm going to do."
The state's Democratic Party chair, Randy Kelley, accused Allen of "partisan gamesmanship," pointing out that Alabama has made adjustments to accommodate late Republican conventions in the past.
Ohio's Republican Secretary of State Frank LaRose sent a similar letter to the Ohio Democratic Party last week. The letter suggested the party needed either to reschedule its convention or obtain a legislative fix by May 9 to get Biden on the Nov. 5 ballot.
The notion of striking a presidential candidate from a ballot began with a legal campaign last year to remove former President Donald Trump from various state ballots by citing a rarely-used clause of the U.S. Constitution's 14th Amendment prohibiting those who "engaged in insurrection" from holding office. After Democratic-dominated states including Colorado and Maine did so, Republicans warned they could counter by barring Biden from ballots in red states if the Supreme Court didn't reverse the actions.
The high court did just that last month, ruling that individual states can't bar a candidate running for national office under the constitutional provision. But Alabama and Ohio have proceeded anyway, citing the technical conflicts between Biden's official nomination and their own ballot deadlines.
Biden's campaign argues there is precedent in Alabama for accepting provisional certification, including when Republicans faced the same issue in 2020. In that year, the state both accepted a provisional certification for Trump and passed legislation containing a one-time deadline change. Democratic lawyers argue it was the provisional certification, and not the legislation, that allowed Trump onto the ballot.
Regardless, Allen's Republican predecessor as secretary of state, John Merrill, said Alabama worked it out for Trump and "absolutely the state should do the same" for Biden.
"Everybody deserves the chance to vote for the major party nominees. That's why it's important for the state to do whatever is necessary to make sure that everybody in the state is properly represented," he said.
Republicans also submitted provisional certifications for Trump in Montana, Oklahoma and Washington in 2020, as did Democrats for Biden in those three states. On Thursday, the state of Washington agreed to accept a provisional certification for Biden to meet its pre-convention deadline. Oklahoma's deadline also falls before the convention this year, but a spokesman said its law already anticipates such occasions by allowing for provisional certifications.
Since Ohio changed its certification deadline from 60 to 90 days ahead of the general election, state lawmakers have had to adjust it twice — in 2012 and 2020 — to accommodate candidates of both parties. Each change was only temporary.
Two Democratic lawmakers in Alabama's Republican-controlled Legislature introduced legislation Thursday to push back the state's certification deadline, and it looks like the party also will have to take the lead at Ohio's GOP-led Statehouse.
Ohio Senate President Matt Huffman, a Republican, told reporters this week he does not plan to initiate a legislative solution in his state. He said it's up to minority Democrats, who control only seven of the chamber's 33 seats.
"I think it's a Democratic problem. There will have to be a Democratic solution," Huffman said. "That hasn't been proposed to me."
That could leave Biden's fate in Ohio to LaRose, whom Democrats sharply criticized all spring as he competed in a bitter U.S. Senate primary.
Democrats are weighing all their options. If pleas for provisional certification or legislation both fail, they could consider litigation or call a portion of their convention early to formalize Biden's certification.
A Biden campaign lawyer said the president already is the presumptive nominee and keeping him off ballots will strip voters of their constitutionally protected rights.
"President Biden and Vice President (Kamala) Harris will be the Democratic Party's candidates for the 2024 presidential election," Barry Ragsdale, an attorney representing the Biden campaign and the Democratic National Convention, wrote in his Alabama letter. "They have already secured the requisite number of pledged delegates through the state primary process. There is no ambiguity on this point."
Some Republicans in both states support working with the Biden campaign to assure he is on the ballot.
Alabama Senate President Pro Tem Greg Reed, the chamber's Republican leader, said, "My attitude would be trying to be accommodating, if we can, in regards to a topic that's important for everyone across the board,"
Republican U.S. Senator JD Vance of Ohio said he doesn't believe anything "malicious" is going on in his state and he expects an accommodation to be made for Biden. Vance told The Boston Globe he hopes Ohioans will support Trump, and expects they will, as they did in 2016 and 2020.
"But the people of Ohio get to make that choice," he said, "not some weird ballot quirk."
