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How the 12th Amendment affects vice presidential picks
Michael C. Maibach • Jul 05, 2024

During this presidential campaign year, there is, as always, speculation on vice presidential choices. One feature of these conversations is that it is unwise to have presidential and vice presidential candidates from the same state. While it is not unconstitutional to have such a pairing, it is highly imprudent if a close election is expected. We will have this debate in 2024. Let us examine the history of the 12th Amendment to better understand this debate. It is, of course, a constitutional issue.

The 12th Amendment Accommodation

The 12th Amendment reads: “Electors vote for President and Vice President, one of whom shall not be an inhabitant of the same state with themselves.” For example, if Mr. Trump would choose a fellow Floridian as his running mate, Florida’s 30 presidential electors could not vote for both Mr. Trump and his VP choice. In a close election, which is likely, this could mean a Trump-Harris White House!

Bush-Cheney Accommodation

In 2000, George W. Bush chose Richard Cheney to be his GOP running mate. Both men had legal residency in Texas, with Cheney moving to Dallas in 1995 as CEO of Halliburton. Cheney was raised in Wyoming and was their sole US House member from 1979 - 1989. When he moved to Texas he kept his Wyoming home. To avoid a 12th Amendment problem, in 2000 he sold his Texas home and returned to Wyoming. The Bush-Cheney ticket.

Why the 12th Amendment Accommodation?

Under the original Constitution, candidates ran individually for president, and state electors voted for them. The candidate with the most electoral votes became president, and the second-place winner became vice president. This would allow the two most qualified men to lead the young nation. If no one won the majority of Electoral College votes, the US House would select the President, with one vote per House state delegation. If there was a tie for Vice President, the US Senate would choose.

This was the system in the 1789 and 1792 presidential elections. Washington was unopposed and worked well with his vice president, John Adams. But the 1796 Adams vs. Jefferson election was highly divisive. The French Revolutionary Wars in Europe found Adams pro-British and Jefferson pro-French. As it happened, Adams was elected president, and Jefferson vice president. The nation was sobered by the weakness of a system that placed fierce political foes together in the White House.

In 1800 informal party tickets developed. Adams ran with Charles Pinckney, and Jefferson ran with Aaron Burr. Because electors voted for the candidates individually - not as a ticket - Jefferson and Burr tied in the Electoral College vote. With this stunning development, the election was thrown into the US House, which took thirty-five votes with no winner. Alexander Hamilton then urged his Federalist friends in the House to support Jefferson on the 36th vote. “The Burr Dilemma” had to be addressed! The 12th Amendment was proposed by Congress in 1803 and ratified by three-fourths of the states in June 1804 during the Jefferson administration. It went into effect for the 1804 presidential election, which saw the Jefferson-Clinton ticket victorious.

The 12th Amendment and a Trump-Florida Ticket

Because of the 12th Amendment, it is highly unlikely that Mr. Trump will ask a fellow Floridian to be his running mate. However, if Mr. Trump really wants Governor DeSantis, Senator Rubio, or US Rep. Donalds on his ticket, we can expect him to move his voting registration to his home in New York City or New Jersey and vote there. Perhaps Mr. Trump’s recent speeches in Wildwood, NJ and the Bronx were testing those political waters. In this most unconventional presidential contest, such a development would add one more thing for voters to consider when they go to the polls this Fall. Stay tuned!

Michael C. Maibach resides in Alexandria, Virginia. He is a Distinguished Fellow on American Federalism at Save Our States, and a Trustee and Managing Director of the James Wilson Institute.