Only eight candidates — and Donald Trump, who is declining to participate — qualified for Wednesday's GOP presidential primary debate, according to the Republican National Committee.

But the candidates left out aren’t going down without a fight, with some threatening legal action and vowing to stay in the race while expressing hope in the dwindling hours before the debate that the RNC will reconsider.

What You Need To Know

  • The GOP presidential candidates left out of the first primary debate by the Republican National Committee aren’t going down without a fight, with some threatening legal action and vowing to stay in the race

  • “I intend to sue the RNC to halt Wednesday's presidential debate,” wrote Larry Elder, a right-wing radio show host who ran for governor of California in 2021. Michigan businessman Perry Johnson also said he planned to sue

  • The cases made by Johnson, Elder, Miami Mayor Francis Suarez and former Texas Rep. Will Hurd had serious holes, a source familiar with the RNC’s process told Spectrum News
  • While the candidates may have reached the donor threshold required by the RNC, the polls they relied on to bolster their qualifications didn’t necessarily meet the committee’s requirements

“I intend to sue the RNC to halt Wednesday's presidential debate,” wrote Larry Elder, a right-wing radio show host who ran for governor of California in 2021, on Tuesday. “I said from the beginning that it appeared the rules of the game were rigged, little did we know just how rigged it is.”

But early on Wednesday morning, Elder partially walked back his threat of a lawsuit and instead said he intended to file an FEC complaint against the RNC, though he made it clear he was still considering taking the RNC to court. The candidate "holds out hope that the RNC" will reconsider and allow him on the stage on Wednesday night, according to a statement from his campaign.

"The complaint will show that Federal Election Commission rules — which govern political organizations’ debate rules — dictate that debate guidelines must be CLEARLY STATED to all candidates, IN ADVANCE; equally applied to all candidates; and that promotional services not be provided to one candidate over another," Elder's campaign wrote in the statement. "Elder is still also considering a lawsuit against the RNC organization, though legal advisers believe that an FEC complaint would have more teeth."

The Californian's campaign counsel Craig Engle, a former FEC chairman appointed by President Ronald Reagan, is cited in the statement as stating that the complaint "will likely result in a hefty fine" for both the RNC and the debate's host, Fox News. The campaign claimed the fine could be as high as $400 million. The highest penalty ever paid for an FEC violation was $3.8 million.

“If I were a betting person, and I’m not, I would bet the forum that Larry Elder is going to on that debate stage,” Elder said at a press conference outside the debate venue, Milwaukee's Fiserv Forum, on Wednesday morning, according to ABC News.

Elder and other candidates who didn’t make the cut have strongly criticized the RNC’s debate requirements, which included a donor threshold of 40,000 unique donors — including 200 unique donors in at least 20 states — and a polling threshold of 1% in a combination of four national or early primary state polls. Candidates were also required to sign a pledge saying they would support the eventual Republican nominee regardless of who won.

The RNC was not exactly clear about which polls counted toward the threshold and which ones didn’t, leading candidates like Elder, Michigan businessman Perry Johnson and Miami Mayor Francis Suarez to announce they had qualified for the debate. Late on Monday evening, the RNC revealed they had not.

“It is clear that from the beginning, the RNC knew who they wanted on the stage and who they wanted to ban from the stage. Simply put, this is a flawed decision of a poorly run process of a corrupt organization,” Johnson said in a statement on Tuesday. “This morning, I am working with my team to take legal action against the RNC.”

Johnson later said in a Newsmax interview he would consider joining forces with Elder in any legal effort to challenge the RNC.

The RNC did not comment on the possible legal challenges, but issued a statement defending their selection process.

"The RNC worked over two years to deliver a transparent and fair primary process that will put our eventual nominee in the best position to beat Biden,” RNC spokesperson Keith Schipper said. “Criteria to qualify for the first debate was clearly presented to campaigns and RNC leadership and members of the debate committee were in constant communication with candidates and campaigns throughout the qualifying period."

The excluded candidates were not the only ones to complain about a perceived lack of transparency in the RNC process. Former Vice President Mike Pence, former Arkansas Gov. Asa Hutchinson and other candidates who did end up making the stage had grumbled about the process, newly implemented for the 2024 cycle, over the course of the last few months.

But the cases made by Johnson, Elder, Suarez and former Texas Rep. Will Hurd had serious holes, a source familiar with the RNC’s process told Spectrum News. While the candidates may have reached the donor threshold — the RNC relied on the campaigns to provide them with evidence 48 hours prior to the debate — the polls they relied on to bolster their qualifications didn’t necessarily meet the committee’s requirements.

Elder accused the RNC of excluding polls from Rasmussen Reports, a right-leaning firm, because of their affiliation with Trump, something Elder says he was unaware of. But the source familiar with the RNC’s process said the firm was not the issue, but the polls themselves.

The polls cited by Elder were conducted in partnership with Enforce the Law PAC, a committee the RNC believes is affiliated with the pro-Trump Save America PAC. Polls affiliated with campaigns of candidate committees do not count to the polling threshold, per the RNC’s rules.

“We have not run a poll suggested by or paid for by President Trump or any of his surrogates - but we'd be pleased to do so,” Rasmussen Reports said on X, the platform formerly known as Twitter. “We will run a poll for ANY politician, party or U.S based political group under the rules” they set for themselves, which includes the firm getting final say on polling questions and strategy.

Meanwhile, Johnson qualified in a national poll, an Iowa poll and a New Hampshire poll from the Trafalgar Group polling firm. But a fourth poll from Victory Insights, the one he would need to meet the debate requirements, fell short of the RNC’s standards. It was a national poll and to meet the RNC’s threshold, it would need to poll at least 800 likely Republican voters in all 50 states. Instead, to Johnson’s frustration, the poll only reached likely GOP voters in 38 states.

"I do plan to be on that debate stage. Just like Larry, I think it is the most corrupt organization on the planet," Johnson said on Newsmax on Tuesday evening, referring to the RNC. "The elitists do not want me. Why don't they want me? I'll tell you. They don't want me because I am a guy that can't control. I want to cut all their power."

Hurd and Suarez missed the threshold due to polls they hoped would be counted that did not survey at least 800 likely GOP voters, instead filling in the numbers with independents and Democrats who would consider voting Republicans, according to the source. Such polls would be allowed, but the GOP contingent needed to hit that 800 total regardless of the inclusion of other likely voters.

“The lack of transparency and confusion around the RNC’s debate requirements is antithetical to the democratic process,” Hurd said in a statement. “The polling standards are arbitrary, unclear, and lack consistency. This is an unacceptable process for a presidential election. The American people deserve better.”

The anti-Trump Republican said he would not “sign a blood oath to Donald Trump,” referring to the pledge to support the eventual nominee the RNC requires candidates to sign. But he said he planned to stay in the race because for him, when it comes to risking another Trump nomination, “the stakes are too high.”

“The RNC discounted polls that included independents and Democrats willing to vote for a Republican,” Hurd continued. “If the GOP is looking to grow our electorate and beat Joe Biden, then we better have a clear understanding of what qualifies as a likely Republican voter. Anyone, regardless of party, who is willing to check the box for a Republican should be considered a ‘likely Republican voter.’ Expanding our party should be applauded, not penalized.”

Suarez released a statement expressing his disappointment but did not announce his next steps. A spokesperson did not return a request for comment on whether the Miami mayor intended to drop out of the race. At the Iowa State Fair earlier this month, Suarez told reporters that candidates who didn’t qualify for the first debate should drop out.

“I am sorry that this debate will not include my perspectives from the largest growing voting block in our country — young, conservative Hispanics,” Suarez said in his statement Tuesday. “I respect the rules and process set forth by the RNC, and I look forward to working with my party to ensure we win back the White House and restore the path to a brighter future for our country.”

Both Elder and Johnson said they planned to head to Milwaukee anyway as they plotted legal challenges. Elder hoped to get a court to delay the debate but it was not immediately clear on what grounds he would make his case.

For his part, Johnson called for the resignation of David Bossie, a Trump campaign alumnus who now serves with the RNC. After appealing their original decision, Johnson said Bossie and RNC Chairwoman Ronna McDaniel called him at 11 p.m. on Monday to confirm he would not be on the debate stage.

“He should not have been in charge of this corrupt debate process and should resign,” Johnson wrote on X, adding he was considering starting a protest in his home county in Michigan. “Maybe there should be a protest this week of Ronna Romney McDaniel in Oakland County to demand Bossie’s resignation. Details to follow.”

The auto industry millionaire told Spectrum News earlier this month he had poured at least $10 million into the race — including on t-shirts and $10 gas cards he gave away for everyone who donated $1 to him in order to reach the RNC’s donor threshold — and planned on spending as much as $40 million. 

But he also placed a heavy emphasis on the importance of the first debate in launching his campaign into the mainstream. He refused to entertain the hypothetical of what he would do with his campaign if he didn’t make it, saying he could “virtually guarantee” he would be there.

“I would be shocked if I'm not on the debate stage,” Johnson told Spectrum News. “We all know that the election really starts on the stage.”