False claim Biden 'can't withdraw' from ballots in Wisconsin, Nevada | Fact check

Hannah Hudnall, USA TODAY
·5 min read

The claim: Biden can't withdraw from Nevada and Wisconsin ballots

A July 21 Instagram post (direct link, archive link) claims President Joe Biden's name could remain on the general election ballots in Nevada and Wisconsin even though he's left the race.

"Wisconsin: does not allow withdrawal from the ballot for any reason besides death," reads text within the post, which was originally shared on Instagram by another user. "Biden hasn’t die (sic). Nevada: no changes can be made to the ballot after 5 p.m. on the fourth Friday in June of an election year or 'a nominee dies or is adjudicated insane or mentally incompetent. It’s past June, and Biden has not died, nor 25th’d."

The Heritage Foundation's Oversight Project claimed in a post on X, formerly Twitter, that many states, including Georgia and South Carolina, may also prohibit Biden's withdrawal from the ballot, warning of the possibility of "pre-election litigation" should he attempt to do so.

The Instagram post garnered more than 500 likes in three days. Other versions of the claim mentioning the Oversight Project's post were shared on Facebook and X.

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Our rating: False

Biden was not formally nominated by the Democratic Party so his name would not need to be "withdrawn" from any ballots. Officials in Nevada and Wisconsin said political parties have until Sept. 3 to submit presidential nominations.

Biden's name not 'withdrawn' from ballots

Edward Foley, the director of Ohio State's election law program, told USA TODAY the Oversight Project's memo was based on an "utterly faulty analysis" that had been debunked by numerous election law experts.

Biden announced July 21 that he was withdrawing from the 2024 presidential race following weeks of increased calls to do so. But Foley said Biden wouldn't be "withdrawing" his name from the ballots, as his name hadn't been placed on them to begin with.

The Democratic Party has yet to formally announce its presidential nominee. The nomination vote is expected to happen virtually ahead of the Democratic National Convention, which begins Aug. 19.

Foley directed USA TODAY to a list of nomination deadlines published by the National Association of Secretaries of State, which shows the earliest deadline previously had been Ohio's on Aug. 7. Ohio Gov. Mike DeWine signed a bill extending this deadline to Sept. 1, however, to give Democrats time to pick a nominee at the DNC, according to Ohio news network WCMH-TV.

"I would not use the language of 'Biden withdrawing' before any of these deadlines," Foley said. "The point is these are the deadlines for the party’s nominee, now presumably Harris, to submit that name. Biden’s name was never given to the states for purposes of the general election ballots."

Deadlines not yet passed in Wisconsin, Nevada

Cecilia Heston, a Nevada secretary of state spokesperson, told USA TODAY the deadline for submitting presidential nominations has not yet passed in Nevada.

"Major parties have until 5 p.m. on the first business day of September of a presidential election year, which this year is Sept. 3rd, to provide the secretary of state the names of their nominees for the offices of president and vice president," Heston said, directing USA TODAY to an amended Nevada regulation that reiterates the same information. "At this time neither major party in Nevada has done so."

The Instagram post mischaracterizes a Nevada election code that states that a vacancy may be filled before the fourth Friday in July if a candidate dies or is "adjudicated insane or mentally incompetent." But this is only the case "if a vacancy occurs in a major political party nomination," which isn't the case for Biden since he wasn't yet officially the nominee.

Fact check: Joe Biden dropped out of presidential race but is finishing term

Riley Vetterkind, a Wisconsin Elections Commission spokesperson, told USA TODAY something similar.

"As of July 23, a Democratic presidential candidate has not been nominated at the Democratic convention or placed on the November ballot in Wisconsin," Vetterkind said. "This means it is not currently necessary or even possible for the Democratic Party’s presidential candidate to withdraw from the ballot in Wisconsin."

He said the state has laws that govern presidential candidate and elector vacancies, but these laws only apply once presidential candidates have been nominated at their respective party's conventions. Candidates will be added to the ballot if the Wisconsin Election Commission gets paperwork from a state or national party chairperson certifying the candidate and the candidate files a formal declaration of candidacy by Sept. 3, 2024.

USA TODAY reached out to the Heritage Foundation and the users who shared the post for comment. The Heritage Foundation provided no evidence to support the claim, instead directing USA TODAY to the Oversight Project's X account. The users did not respond.

PolitiFact Wisconsin debunked a similar version of the claim.

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This article originally appeared on USA TODAY: Ballots in Wisconsin, Nevada won't include Biden | Fact check

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