Marco Rubio, eat your heart out
Presidents and VPs can actually be from the same state; but it does make things tricky
Word on the street is, the presumptive 2024 Republican nominee for president and recently-convicted felon Donald Trump has narrowed down his list of potential choices for vice president. He’s in search of a new vice president since his last one, Mike Pence, ran against him in this year’s primaries, probably on account of Pence’s attempted hanging at the hands of Trump’s supporters on January 6th, 2021. Tale as old as time!
Though it might not seem like it, the vice presidential pick (or the “Veepstakes,” as I despise it being called) is quite an important decision. About one fifth of all presidencies (9 out of 46) have resulted in the Vice President assuming the office after the President died or (in Nixon’s case) resigned. Both major-party nominees are advancing quickly in age (Joe Biden would be 86 at the end of his second term; Trump would be 82). And beyond that, plenty of former vice presidents tend to become president later on in their careers. If for no other reason than “the vice presidency is a clear pathway to the presidency”, this is not a choice that should be made lightly.
According to a number of sources close to Trump, eight lucky contestants have been presented with vetting documents, a standard process designed to assess the qualifications and fit for each potential choice, and more specifically to coax any potential skeletons out of these candidates’ closets. These eight finalists are pictured below. Instead of tediously listing them, you can play a fun little game on your own, where you see how many of these deeply masochistic individuals you can name. Have fun, since this is the last time you’ll probably hear from 7 of these people!
Reporting indicates that Trump has focused his sights on three poor souls in particular: U.S. Senator Marco Rubio of Florida (top left above); Rubio’s Senate colleague J.D. Vance of Ohio (to Rubio’s right); and North Dakota governor Doug Burgum (top far right). Trump has apparently taken a personal liking to both Vance and Burgum, who both dehumanized themselves made the pilgrimage to the New York courtroom where Trump was recently on trial to support their man in his time of need.
Rubio did not make such an appearance, but he has described the conviction as the result of a “show trial” and compared our legal system to that of Cuba under communism. His slow and embarrassing descent from chief presidential rival to Trump in 2016 to a totalizing sycophant of the former president is nearly complete, and being nominated as Trump’s vice president in 2024 would be the crowning moment.
Rubio has at least as much to offer Trump as the other candidates, and possibly more, including a connection to Hispanic voters and some relative youth and vitality. Woeful and emasculated though the man is, Marco Rubio probably represents the closest thing to a “strong pick” for vice president to a nominee like Donald Trump.
The problem? A Rubio nomination would come with a potentially major constitutional hiccup that would probably have to be addressed before the Electoral College meets in December, should a Trump-Rubio ticket prevail on Election Day. Now that Donald Trump has completed his own transition into a full-fledged Florida Man, a ticket shared with Rubio1 has been discussed as potentially constitutionally invalid in the press.
The clause in question is from Article 2, Section 1 of the Constitution, which states that the electors chosen for the Electoral College “shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.”
This clause appears, on its face, to make a ticket between Trump and any other Floridian constitutionally suspect. But the provision’s real meaning is a little more complicated than that, and would be relatively easy for the Trump campaign to work its way around; that is, if Rubio is cursed enough to actually get the offer, and pathetic enough to accept it. Let’s dig in.
This restriction, which was in the original Constitution and clarified in the 12th Amendment in 1803, stemmed from a concern that big states would predominate among candidates for high office like president and vice president. The founders and their predecessors essentially wanted to encourage big-state members of the Electoral College to not just favor their local area by casting their two votes for candidates from their own state.
The common shorthand for this provision is that “two people from the same state can’t be on the same presidential ticket.” But according to the text, this isn’t just an oversimplification of the rule — it really isn’t true at all. Neither the Constitution nor the Electoral College prevents Trump from picking a running mate from the same state. In fact, Trump and Rubio (or any random Floridian who can wear a suit and demean themselves) could absolutely be on the same ticket; but it wouldn’t come without possible consequences.
In fact, the restriction outlined in the Constitution is not actually on the candidate, but on the electors who comprise the Electoral College. What the clause actually says is that an elector is not allowed to cast both of their votes (one for president, one for vice president) for two people who are both from the elector’s home state. In layman’s terms, this means that Electoral College members from Florida could not cast their votes for both Trump and Rubio if they won the state. Meanwhile, electors from Idaho, Texas, or anywhere else would be perfectly at liberty to vote for both Trump and Rubio in the Electoral College if the Trump ticket won their states.
Most of the time, this just isn’t an issue. We’ve got quite a big country with quite a few individuals who are theoretically qualified to carry out the pretty meager duties of the vice presidency. As a result, presidential nominees tend to look outside of their home state to find running mates, since they usually also are looking for geographic diversity on the ticket.
But since Marco Rubio is such a promising young(ish) man, Trump may decide he’s the chosen one, come Hell or high water (it’s both, really, in Florida). And again, there’s nothing preventing them both being on the ticket. But imagine for a moment that Trump wins the election, but by only a handful electoral votes — a very plausible outcome in November. In that case, when members of the Electoral College went to cast their official votes in December, they could all cast their votes as intended… except in Florida.
Assuming Trump wins the state, which he probably will, the Florida electors could all still vote for Donald Trump for president, and put him where he needs to be to get inaugurated next January. But they would not be allowed to also cast a vote for Marco Rubio as Vice President. The upshot? Donald Trump has a sufficient number of electoral votes to become president, but his running mate falls short.
So what happens then? The choice for vice president would fall to the U.S. Senate, where each senator would get one vote; majority wins. With Democrats barely in control of the Senate, this could get dicey and confusing pretty fast. Do they vote for a Democrat? Make a deal with Republicans on a moderate? Roll a blunt and cackle?
There are some other pretty outlandish ways around this that could forestall the need for a wild, razor-thin Senate vote to decide who the vice president is going to be. Back in 2015, a couple months before Donald Trump announced his candidacy, Rubio was already being discussed as a potential running mate for Florida governor Jeb Bush, who, believe it or not, was leading in the polls at the time. Constitutional scholar John Harrison made an interesting, but very-much-untested, suggestion for solving the issue:
"The Florida Republican Party might seek an amendment to Florida law so that non-Floridians could serve as electors, and nominate a slate of, say, Georgians, who could come down for the day in December when the electors give their vote," Harrison suggested.
Yikes.
But of course, this whole discrepancy wouldn’t ultimately end up mattering if, as political scientist Kevin Wagner of Florida Atlantic University puts it, “a hypothetical ticket of Trump-Rubio won by enough of a margin.” In other words, if the Electoral College tally were to end up as such a landslide in Trump’s favor that he didn’t even end up needing Florida’s 30 electoral votes, then Rubio could still be Vice President.
So let’s say that Donald Trump truly has his heart set on Marco Rubio, and that he’s planning on needing Florida’s electoral votes in a close election (which he will). Probably he would prefer to avoid this issue altogether. What can be done?
The simplest solution — aside from swapping out Rubio with somebody else — would be for either Trump or Rubio to relocate. The obvious option here is for Trump to move officially back to New York, where he actually has significant roots. Although the city and the state are not fans of his, presidents lose their home states all the time, so it wouldn’t have any tangible effects on the race. Plus, New York has the added benefit of allowing convicted felons like Donald Trump to vote, so long as they aren’t currently incarcerated. Win-win!
That said, January 6th taught us that Trump isn’t usually inclined to lift a finger to help his running mate, even if it’s to rescue them from an attempted assassination. And so, of course, Rubio could also move. In doing so, he would probably have to resign his Senate seat in Florida, since the Constitution also requires members of Congress to have their official residence in the state they represent.
Importantly, this route could also help facilitate what would obviously be the most entertaining outcome of this process: for Trump to ask Rubio to retire and move out of Florida, and then change his mind and pick somebody else.
At the end of the day, however, my guess is that this is a problem more likely to be solved by paperwork than by moving trucks.
That’s because the text of Article 2, Section 1 only requires that both candidates not be an “inhabitant” of the same state as the electors. This is a term that’s faced a few different court challenges in Congress over the decades, but which generally has been interpreted pretty loosely. More often than not, candidates and elected officials are able to simply find another address over which they have some level of ownership (or relationship with the owners) to designate as their “official residence,” even if they physically reside in a different home or state on a regular basis.
Alabama Senator Tommy Tuberville is a good example of this that I’ve actually written about before. Long story short, Tuberville has faced ongoing criticism for representing Alabama in the Senate, even though — by all accounts — he lives pretty much full time in (where else) Florida.
But because Tuberville lists as his official residency a home in Auburn, Alabama, he seems to be legally in the clear. This, despite the fact that the Alabama home seems to be owned by Tuberville’s wife and son, and that Tuberville appears to spend little to no time there. Then again, as Taylor Swift taught us in a song appropriately named for this post, “your home's really only a town you're just a guest in.”
Surely Trump could do the same thing with one of his many other residences without disrupting his life too much, and without any true legal or Constitutional risks. In fact, this is precisely what Dick Cheney did back in 2000 after agreeing to be George W. Bush’s running mate: Cheney lived in Bush’s home state of Texas at the time, but changed his official residency to a home in Wyoming, a state he had represented in Congress back in the 1980s.
So take some deep breaths, Marco Rubio; it’s gonna be okay. You’re still in the running for a job that seems just as likely to get you killed as it is to make you president someday.
Or with Rep. Byron Donalds, a Florida representative in the House who is also on Trump’s short list
Didn't Cheney change his residence spring 2000 from TX to WY? Of course, he had longstanding ties to the latter. Given that two pro-choice Northeast center-right governors (Ridge and Pataki) were on the short list, things could've been very different.
Goodness, no. Regarding vice presidential vetting let's not forget Thomas Eagleton, George McGovern's first choice in 1968. And I was wondering who were the best and worst vice presidents. Here's The Guardian's list.
https://www.theguardian.com/world/2008/aug/22/uselections2008.usa