As Donald Trump narrows his options for a potential running mate, two politicians known to be on his list are from Florida, leaving open a scenario where his vice presidential nominee would have to move if the Republican ticket wins.
The U.S. Constitution prohibits a president and vice president from residing in the same state. If Trump, who declared his Palm Beach estate his home in 2019, were to pick U.S. Sen. Marco Rubio or U.S. Rep. Byron Donalds, the 12th Amendment could prevent the 30 Florida electors from casting their vote if Republicans win the state.
There are several ways for the Trump campaign to overcome this, legal experts say, though doing so might create some inconvenience for the vice presidential candidate.
“It’s just easier to run candidates from two different states,” said Sanford Levinson, a constitutional scholar at the University of Texas School of Law. “It does seem to be easy to evade any problems if you want to.”
What’s the issue in the Constitution?
The 12th Amendment says that members of the Electoral College shall vote for a president and vice president. It notes that one of the candidates “shall not be an inhabitant of the same state with themselves.”
The amendment was added to the Constitution in 1804 when large states such as Virginia dominated the nation’s political discourse, Levinson said, as a way of limiting their power.
If Trump wins Florida, the state’s 30 electors could vote for him for president, but not for another Floridian for vice president.
Florida has the third most electoral votes behind California with 54 and Texas with 40. In a close election, the state’s votes could be less than the total margin.
Florida’s electors could abstain from voting, which might not matter if Trump does not need those 30 electoral votes to reach the 270 required for victory. The electors could still go ahead and vote for an all-Floridian ticket, with the possibility of facing legal challenges.
Has this issue come up before?
In July 2000, four days before then-Texas Gov. George W. Bush selected his running mate, Dick Cheney changed his Texas residency by registering to vote in Wyoming, where he grew up, had a home and represented Congress for 12 years.
The move was seen as an indication that Bush had made up his mind about Cheney joining the ticket.
There were legal challenges filed against Bush, Cheney, the Texas secretary of state and the Texas electors. Ultimately, courts sided with Cheney in that he was qualified to be vice president because he had proved he was a Wyoming resident.
Will Rubio or Donalds have to move?
Likely yes, but not right away.
The Electoral College will meet on Dec. 17. If Trump wins the Nov. 5 election, his running mate could make the switch afterward because he would be leaving his congressional office anyway.
“If I were advising Rubio, I would tell him not to change his residency until after the election,” said Bob Jarvis, a constitutional law professor at Nova Southeastern University.
Where might they move?
Rubio was asked by CNN after Thursday’s debate between Democratic President Joe Biden and Trump if he would be willing to move.
“That would be presumptuous of me to talk about that,” he said. “The job has not been offered to me. I am not the vice presidential choice. No one is right now. And we’ll cross bridges when we get to them.”
The Republicans National Committee chairman, Michael Whatley, declined to speculate on the possibility of two Florida residents on the ticket, when asked at a pre-debate event headlined by Donalds in Atlanta on Wednesday.
“If we have to cross that bridge, we’ll cross it,” Whatley said.
Donalds was born in New York.
Could Trump move?
A native New Yorker, Trump established residency in Florida in 2019. He is known to own properties in several states, including his namesake Trump Tower in New York. When asked about the 12th Amendment, Trump senior adviser Brian Hughes said, “The top criteria in selecting a vice president is a strong leader who will make a great president for eight years after his next four-year term concludes.”
(AP)
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2 Responses
The problem also comes up if Kamala Harris has a running mate from California. For one of the nominees to need to move:
1. They have to win the election in November (when the electoral is elected, the president and vice-president are not actually on the ballot in November)
2. The home state has to be the margin of victory
3. The Senate has to be controlled by the opposition party (since if the party that won the vote in November also won the Senate, then even if the home state can’t cast its votes for Vice-President, the Senate gets to decide the race for Vice-President).
The U.S. Constitution prohibits a president and vice president from residing in the same state.
That is absolutely not true. It makes it difficult for them to both be elected, if it’s a large state, but there is no prohibition on it.
Supposing Trump does run with another Floridian, let’s say Donalds. They could run as the Two Donalds. And supposing they win, this is how it plays out:
1. If they get more than 300 votes, then they need do nothing. Florida electors are free to vote for either Trump and someone else, or someone else and Donalds, as they choose. Both win anyway.
2. If they get between 285 and 300 votes, then the Florida electors must agree between them who is voting for Trump and who for Donalds. For instance if they get 290 votes then at least ten must vote for Trump and at least ten for Donalds, while the remaining ten can decide for themselves.
3. If they get between 270 and 284 votes, then they must look at the incoming Congress. If the Republicans have a majority in the senate but not in House delegations, then Florida’s electors should all vote for Trump and not Donalds, and let the senate elect Donalds. If the Republicans have a majority of House delegations but not of senators, then it’s the other way around. Florida’s electors should vote for Donalds and not for Trump, and leave it to the House to elect Trump. Only if the Dems gain both the senate and a majority of House delegations, then Donalds should move to another state.
4. If they get 269 it’s going to Congress anyway, so they can do what they like.
5. If they get fewer than 269 then the Democrats win anyway, so again they can do what they like.