Presumptive Republican presidential nominee Donald Trump recently dropped hints that his decision on a running mate is close — or may have already been made. The selection of one of the people considered his shortlist for vice president — Sen. Marco Rubio of Florida — would pose an unusual constitutional complication.
The three-term Florida senator seems well suited to the Republican ticket: As the son of Cuban immigrants, he could appeal to Spanish-speaking voters, at 52 he is relatively young and he brings legislative experience in national security and foreign policy policy. But as Trump has said, “Marco has a residency problem.”
Trump and Rubio’s status as Florida residents violates the Twelfth Amendment, which states that members of the Electoral College “shall meet in their respective states, and vote by ballot for the President and Vice President, of whom at least one will not be elected. a resident of the same state as herself.”
The History of the 12th Amendment.
Before the 12th Amendment was ratified in 1804, members of the Electoral College cast two votes for president, with the highest vote-getter becoming president and the second place vice president. But under Article II of the Constitution, voters could not vote for two candidates from their own state.
“It’s one of these strange features of the Constitution,” said Sanford Levinson, a professor at the University of Texas School of Law. The shipment.
As Levinson explains, voters would vote for who they thought would be “the two best candidates for president.” However, the presidential election of 1800 exposed flaws in the process: an Electoral College tie between Thomas Jefferson and running mate Aaron Burr, both Democratic-Republican candidates, sent the election to the House of Representatives. It took 36 rounds of voting before the House declared Jefferson the winner.
The controversial election resulted in the ratification of the 12th Amendment in 1804, allowing voters to vote for president and vice president separately. However, the restriction that voters could vote for two residents of their own state remained from the old system.
Constitutional scholars are unsure why the Constitution included the same state rule. But Levinson says it could be related to Virginia’s overrepresentation in the country’s early leadership. “I think it was an effort to prevent Virginians from simply dominating the executive branch,” he said. Four of the first five presidents came from Virginia. “It forces people to search nationwide for the second person.”
The implications for a possible Trump-Rubio ticket.
While the Constitution does not prohibit two candidates from the same state from running on the same party ticket, Trump and Rubio would not both be able to receive Electoral College votes from voters in Florida under the 12th Amendment. With 30 electoral votes in 2024, Florida has the third largest number of all states and is therefore crucial to achieving the 270 a presidential candidate needs to win. If Florida voters were to choose Trump over Rubio, the Senate would ultimately have to choose the vice president if Rubio did not receive a majority of the electoral votes for vice president, Levinson said.
One possible way to avoid conflict over the Twelfth Amendment would be for one of the two candidates to change residency from Florida to another state. For example, Rubio could move his residency to Nevada, where he lived for a few years during his youth. Under Nevada state law, a person can be a legal resident if he or she has a legal residence in the state, conducts business in the state, has a motor vehicle based in Nevada, physically resides in Nevada, or considers himself or herself a resident of Nevada explains.
There is a precedent for this type of residence change. Days before becoming George W. Bush’s running mate in the 2000 election, Dick Cheney changed his residency from Texas, where he had lived for several years while CEO of Halliburton, to Wyoming. Cheney had important ties to the state and served as a congressman in Wyoming for ten years. Despite Cheney’s ties to Wyoming, the change was still challenged in court, albeit unsuccessfully.
Levinson says Cheney’s strategy could work for Rubio. “You have the right to settle anywhere you want in the United States once you become a citizen,” he said. He thinks it will be difficult to find grounds to challenge the residency change in court, especially after Cheney’s failed challenge to the move.
And if Trump were to select him as his running mate, Rubio would have time to work out the details. His residency wouldn’t have to be officially changed until Dec. 17, when voters cast their ballots, according to Levinson.
The situation with Rubio’s Senate seat would be more complicated. He could resign before changing residency, or he could still hold on to his seat while living in another state, since Article I of the Constitution states that a senator may only be a resident of the state he represents “when elected.” However, this would likely be challenged in court if Rubio were to change his residency. “I would expect that there would be an immediate lawsuit saying that he had to vacate his seat,” Levinson said.
Another way to avoid a Twelfth Amendment problem would be for Trump to change his residency – again. He was a resident of New York State until September 2019, when he changed his residency to Mar-A-Lago, Florida. If he were to return to New York, he would have to spend at least 184 days in the state before he could be officially classified as a New York resident.
The 12th Amendment’s residency rule does not pose an insurmountable challenge to a Trump-Rubio ticket, Levinson said. “You can put it out of action immediately by simply picking yourself up, going to a neighboring state, getting a driver’s license and saying, ‘I’m home.’”
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