Trump’s 12th Amendment Problem: The VP Short List Has a Residency Dilemma

The Trump short list for vice presidential candidates is reportedly down to Ohio Senator, J.D. Vance, Florida Sen. Marco Rubio, South Carolina Sen. Tim Scott and North Dakota Gov. Doug Burgum. Rubio is a favorite for many due to his record in the Senate and his appeal to hispanic voters (where the GOP is hoping to make gains in the coming election). The problem is not Rubio or his record, but his residence.

The Twelfth Amendment contains a habitation or “favorite sons” provision: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.”

The risk is that Florida’s electoral votes could be challenged in any election since both Trump and Rubio reside in the state. That is a chunk of 30 votes in a close election. In addition other states which sought to block Trump from the ballot like Colorado could try this new tack to derail his campaign.

The most obvious option is for either Trump or Rubio to move. The easiest would be for Trump to move since Rubio represents Florida. That could include either New York or New Jersey ( where his Bedminster property is located).

That option would be costly for Trump in terms of taxes. Moreover, Trump is desperately trying to get out of New York where he is effectively shackled to the defense table as his opponent, President Joe Biden, campaigns around the country.

The funny thing is that Trump has been campaigning in New York and drawing some large crowds. It would be the height of irony if Trump ends up making New York competitive with a mix of the time forced to be in the state and a change of residency.

Alternatively, Rubio could resign from the Senate and focus on running with a residence in a different state. He could also attempt a more creative approach and just change residency for the election.

Under Article I, Section 3, Clause 3:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Rubio can argue that he was “an Inhabitant” of Florida “when elected.” Given the recent controversy over the appointment of Democratic Senator  Laphonza Butler, it could be hard for some Democrats to object.

Yet, there will be some who will no doubt try. In 2000, Dick Cheney was challenged by three Texas residents when he moved back to Wyoming. They failed.

Ultimately, it could also be challenged in Congress under the Electoral Count Reform Act.

Despite declaring the challenge to the Biden election was an attack on democracy, Democratic members previously challenged Republican presidents in Congress, including Jan. 6th committee head Bennie Thompson (D-Miss.) and Rep. Jamie Raskin (D-Md.)

In other words, it could be done but it would likely draw challenges. Then again, why should this part of the election be any different from every other part?

288 thoughts on “Trump’s 12th Amendment Problem: The VP Short List Has a Residency Dilemma”

  1. I would be very surprised if Trump chooses Rubio for a running mate. He doesn’t bring alot to the table, Tim Scott could give him a higher percentage of the black vote, I think he’s already got the legal hispanic vote. Tim Scott would do without any more brain damage, really doesn’t matter as anyone is head and shoulder above the cackling Cameltoe.

  2. Back to the topic of this post, which is not the definition of “natural born citizen”, or the polls, or the Trump trial, but the twelfth amendment.

    Supposing that Trump and Rubio run together, and they both remain residents of Florida, and they win.

    If they get 300 or more electors, then no problemo, Florida’s electors each vote for Trump and someone else, or for someone else and Rubio, as they please.

    Suppose they get 285 electors. Fifteen vote for Trump and someone else and the other fifteen vote for someone else and Rubio, thus giving Trump and Rubio 270 votes each.

    Suppose they get fewer than 285 electors. Let’s say they win exactly 270. What Florida’s electors should do would then depend on the result of the congressional election.

    If the Republicans win a majority of state delegations in the House, but not a majority in the senate, then the Florida electors should all vote for someone else and Rubio. That way Rubio gets 270 votes and is elected VP, while the presidential vote is Biden 268, Trump 240, someone else 30. That throws it to the House, which elects Trump.

    If it’s the reverse, the Republicans winning the senate but not a majority of state delegations in the House, then the Florida electors should all vote for Trump and someone else. Trump gets 270 votes and is elected president; the VP vote is Harris 268, Rubio 240, and the senate elects Rubio. (In this scenario the third candidate, with only 30 votes, is eliminated; the senate only gets a choice between the top two.)

    The only case in which the choice of Rubio hurts Trump is where the Democrats win both the senate and the majority of state delegations in the House. In that scenario the Florida electors would all have to vote for Trump, and let Harris become VP. Or they could decide to vote for Rubio and let Biden become president, on the assumption that he’ll soon fall off the perch and Rubio will succeed him.

    1. president trump could always send vp harris to tabet on a four year fact finding mission.

      1. No, he couldn’t. The VP doesn’t work for the president. He could ask her to go, and she would say no.

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  4. What we need right now is Vladimir Putin to have bangoed a hottie US gal a number of decades ago (likely) and their son (DNA proof), now of age for POTUS eligibility and a US Citizen, runs and places high, like he is going to win. He calls Daddy on the phone, too !
    SUDDENLY, all the lying goonberry traitor broken eggheaded humpty dummies would discover exactly what “natural born” means in the US Constitution, and the Putin pawn would be kicked aside with fervor and much foaming at the mouth.

    I’d love to see it.

    1. No, they wouldn’t. The constitution doesn’t change its meaning just because someone doesn’t like an election result. “Natural born citizen” would mean the same thing after such an election as it did before, and as it has meant since 1789. And that is absolutely not what George and others have been claiming. Vattel was not a significant influence on the framers or ratifiers, or on the American public. Few had heard of him, and even fewer had read him. We interpret laws according to their public meaning at the time of their adoption, and the public meaning of NBC was not based on a person’s parentage.

    2. Ha, you should be so lucky as to have a Putin offspring in line for the presidency. We Canucks have Fidel’s kid, of the idiot family Margaret and Pierre Trudeau, playing prime Minister much like Biden plays POTUS. If you’re not up on (or couldn’t care less about) Justie Turdo’s lineage, It’s quite a sordid morsel of tale — infidelity to this nation repeated often by the ditsy Margaret, probably with Pierre watching.

  5. If he picks Rubio he is an idiot. Rubio is the traitor establishment goon head, IT WILL NEVER HAPPEN.

  6. As JT allows, it would be a simple matter for Rubio to move across the state line into Georgia before the votes of the Florida electors is held and then move back to Florida after the vote is taken. No one would blame him for such a move, and it would be temporary anyway, since he will be residing in Washington DC or Virginia after 1/20/25.

  7. There’s a simple enough solution that requires neither Trump nor Rubio to change residence. The 12th Amendment says Electors can’t vote for a President and VP who are both inhabitants of the same State as themselves. So Electors who are inhabitants of Florida cannot vote for both a Florida inhabitant President and a Florida inhabitant VP.

    But there’s no rule that Florida has to appoint Electors who are Florida inhabitants. Trump and Rubio might select a slate of Electors who are all inhabitants of, say, South Carolina rather than Florida. The 12th Amendment would then prevent these electors from voting as South Carolina Electors, for a P and VP who were both inhabitants of South Carolina. But since neither Trump nor Rubio are residents of South Carolina, and since these Electors are not appointed as South Carolina Electors, the 12th Amendment is irrelevant. As Florida Electors they can vote for both Trump and Rubio (both Florida inhabitants) and since these Electors are not themselves inhabitants of Florida, there’s no 12th Amendment problem.

    None of which is to say that Rubio would be a good choice.

    1. Ingenious. Read literally (and the only way to read it in this context), you are correct. But it clearly violates the spirit of the amendment. If Trump and company tried to pull this off, there would be political ramfications. So instead of a Trump/Rubio ticket getting 60% of the vote in Florida, they would have to settle for 59%.

  8. This fallacy could be applied to millions of other situations. It’s irrational that such a fallacy is allowed to persist. It must be effective. People get their jollies using it, I guess.

  9. Van Buren hailed from Old Kinderhook, NY —– and he was referred to as ‘Old Kinderhook’ …..OK……………..

  10. Jonathan: In a previous column (“The Path of Least Resistance”, 5/01) you criticized the Northwestern agreement with student protesters and said the “university has long lacked the fortitude to stand up to students in disruptive protests”. The approach at Northwestern was not replicated at Columbia where over 300 students have been arrested and charged. I assume you approve of the Columbia approach.

    But as an existential advocate of “free speech” why do you think student protesters don’t deserve 1st Amendment protections? You have often complained that “conservatives” are frequently silenced and prevented from speaking on university campuses. But when it comes to peaceful protests over the war of genocide by Israel in Gaza you apply a different standard. Why is that?

    There is no question that the current wave of student protests is “disruptive” of normal life on campuses. “Disruption” is the who point of protests. The Boston Tea Party was “disruptive” but it led to the American Revolution. The crucible of “free speech” is often the speech we don’t agree with the most. But that doesn’t mean it should be suppressed by the police simply because we don’t like the content.

    When the Columbia President called in the NYPD to suppress the protests he abdicated his responsibility to protect the “free speech” rights of student protesters. Maybe Northwestern had the better approach. Invite students to address the Board of Trustees with their concerns.

    But DJT believes universities should not “capitulate” to protesters. He calls student protesters at Columbia “paid agitators”, “brainwashed”, “raging lunatics and brainwashed”. He has called on school administrators to use a heavy hand: “vanquish the radicals” many of whom “come from foreign countries”. DJT would use the National Guard to violently suppress student protests. That approach was used during students protests over the Vietnam War. At Kent State student protesters were shot and killed. That emboldened more widespread protests that eventually forced Nixon to withdraw from Vietnam. DJT never learned that lesson because he has probably never read a history book. For every action there is an equal and opposite reaction. Newton’s third law applies equally to what is happening on university campuses these days!

    Oh, by the way, DJT probably won’t choose Marco Rubio as a running mate. DJT won’t move back to NY under any circumstances–unless he’s forced to. DJT’s only possible change of residence may be from the courthouse to the jail house in NY! Now that could solve the 12th amendment problem!

    1. Dennis: Thank you. Some of the campus protests aren’t just over Israel’s conduct in Palestine, but to compel the university to disclose investments in Israel. Some universities, and some states as well, have purchased Israeli bonds. Students have every right to know whether and how much of their tuition money is being used to help finance Israel’s bombing and killing in Palestine. I just read that not only did the Pence’s ruby-red and very Republican gerrymandered State of Indiana invest in Israeli bonds, it doubled down and bought a whole bunch more, even after the bonds were recently downgraded in value.

  11. And another thing…a “victory” based on a fallacy isn’t really much of a victory. It’s ridiculous to crow as if it is.

  12. The fallacy is that you don’t need to do something yourself to know that something must be done. I might know that
    someone needs heart surgery, but I’m not going to perform the surgery myself. Could you please stop making such fallacies? It is a waste of everyone’s time.

    1. What needs to be done is both sides meet at the peace table, agree to a cease fire, and hammer out a peace agreement. Neither side will get everything they want. Both sides will have to give up something.

      Why dont you sign up and enlist in Zelensky’s military? If not you, your children or your grandchildren if you are so convinced the fighting needs to continue?

  13. What is the definition of “inhabitant”? If I spend a few days in Las Vegas on vacation, am I an “inhabitant” of Las Vegas?

  14. The Allies weren’t afraid of what Hitler would do when they invaded Normandy to expel Germans from France, so why are today’s leaders so afraid of what Putin might do for doing whatever is necessary to expel the Russians from Ukraine?

    1. Hummm, The Files were seized under the auspice of the National Archives, The FBI (wit Authorized Security Level) handling of the Documents are not the National Archive’s Personnel, of whom handle Documents regularly and in a structured procedure to preserve the integrity of the said Document(s) [i.e.: Archivist]. Even The Library of Congress preservation Department would have been a better choice for the Collection of Documents and their preservation (as evidence or as historical archive).

      Finger pointing aside, the ‘Evidence’ has been tampered with and mishandled – made inadmissible (anyone could have planted the ‘classified documents in the Evidence’ – wherefore reliving Mr. Trump on a technicality of his charge(s).
      We all know the Set-Up was Politically motivated anyway ….

  15. Where can I buy me a bag of dicks, and do they have preservatives such as butylated hydroxyanisole (BHA)? I’m intrigued, but I don’t want to get cancer. Thanks in advance!

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