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Understanding the Constitution: Why Gov. DeSantis Cannot Be Trump’s Running Mate

Understanding the Constitution: Why Gov. DeSantis Cannot Be Trump’s Running Mate

This essay was first published in the Jan. 29, 2024 Epoch Times.

In politics, opponents of a young candidate often claim the young candidate is “not ready” or “should wait his turn.” Then the opponents try to ensure that “his turn” never comes.

Some partisans of former President Donald Trump used this talking point against Florida Gov. Ron DeSantis (R.), who—although he has military, congressional, and gubernatorial experience—is only 45. They suggested DeSantis should not have run for president, but served as Trump’s running mate, after which he could “take his turn” at the top job in 2028.

This talking point may have persuaded a few people, but it has no real merit. For one thing, the DeSantis candidacy offered some advantages the Trump candidacy does not—a point we shall not explore here. Further, there was no assurance that Trump, if nominated, would choose DeSantis as a running mate. In fact, as explained below, because both men live in Florida, it would not make political sense to do so.

Finally, the Constitution severely discourages single-state tickets.

What the Constitution Says

Contrary to what you may have heard, the Constitution does not absolutely prohibit having a president and vice president from the same state. Nor was talk show host Clay Travis correct when he identified the 11th amendment as the reason. (The 11th amendment merely clarifies the extent of the federal judicial power.) But another part of the Constitution does assure that any “same state” ticket automatically forfeits electoral votes.

Presidents and vice presidents are elected by presidential electors. Collectively, these presidential electors are referred to as “the Electoral College.”

The presidential election process is very much state-based. Each state’s electors meet in their own state. Moreover, the Constitution grants the legislature of each state almost unlimited authority over how that state’s electors are chosen:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” (Article II, Section 1, Clause 2). (Italics added.)

It is true that the Supreme Court has permitted—without constitutional justification—some congressional tampering with presidential elections. But in 2020 the justices reaffirmed state legislative supremacy over the choice of electors.

The only significant exception to state legislative supremacy is that Congress may specify a single time for the choice of electors and a uniform day for them to cast their ballots (Article II, Section 1, Clause 4). One of the problems with the 2020 presidential election is that Congress’s laws on the subject were widely disregarded, to the benefit of the Biden-Harris ticket.

All of the state legislatures have delegated the choice of presidential electors to the people of their states.

On the subject of how presidential electors vote, the original Constitution provided as follows:

“The Electors 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” (Article II, Section 1, Clause 3).

The original Constitution went on to say that the candidate receiving the most electoral votes (if chosen by a majority of the electors) would become president. The runner-up—probably the winner’s chief rival—would become vice president. In the election of 1796, for example, John Adams took the top job, while his main opponent, Thomas Jefferson, became vice president.

In 1804, the states ratified the 12th amendment. The 12th amendment changed the system somewhat (discussed below). But it also reaffirmed that when electors voted for two candidates, they had to vote for “one of whom, at least, shall not be an inhabitant of the same state with themselves.”

We’ll call this the “two-state rule.”

The Reasons for the Two-State Rule

The reason behind the two-state rule is not—as some have said—because the Founders feared domination of the Union by any one state. Even when there were only 13 states, it would have been difficult for just one of them to prevail over the other 12. In addition, the Founders knew that the Union would soon grow to at least 15, with the impending admission of Vermont and Kentucky.

Some of the Founders were concerned that three or four populous states would form a dominant coalition. But forming a coalition would require dividing up offices among several states, not concentrating them in any one.

Let’s examine the real reasons behind the two-state rule.

The first was that the rule would improve the quality of the winning candidate. Under the original plan, presidential electors would exercise their own discretion in selecting the president and vice president. They would not be bound to vote in any particular way. (The 2020 Supreme Court case mentioned above undervalued this fact.)

Presidential electors might be tempted to vote for their state’s “favorite son,” rather than for the best qualified candidate. On the other hand, some candidates would be “everyone’s second choice”—even of electors from other states. A candidate who was everyone’s second choice probably owed that position to a national reputation and outstanding ability and character. Under the original Constitution’s voting system, a candidate garnering a lot of second-choice votes could become president.

Another reason is more speculative, but I think it is true: Under the original system, the vice president would be the runner-up in the presidential election—and probably a gifted politician and a rival of the president. Such a person could exercise a lot of power because he presided over the Senate. The Founders’ preference for rivalry among officers over cooperation encouraged them to ensure that no one state held both of the top jobs.

The 12th amendment abandoned the system whereby the presidential election runner-up became vice president. It mandated separate ballots for each position. But the 12th amendment did retain the two-state rule. This may have been because two of the first three presidents had hailed from Virginia and more candidates from the same state were in the pipeline. The two-state rule ensured that Virginia presidents were balanced by vice presidents from elsewhere.

Some Practical Politics

Now, let’s look at some practical political implications.

If a Trump-DeSantis ticket were to carry Florida, the two-state rule would prevent Florida presidential electors from voting for both Trump and DeSantis. Presumably, they would vote for Trump for president, but not for DeSantis for vice president. In a close election, this could leave Trump with a Democrat vice president.

But even if the Constitution did not impose the two-state rule, it would almost never make sense for a presidential candidate to choose a running mate from his own state.

For political reasons, a running mate should be someone who is popular with a major constituency—in particular, a constituency that might vote either way. Thus, many presidential candidates have selected popular figures from large swing states. One of the many “rookie mistakes” the politically-inexperienced Donald Trump made was choosing his 2016 running mate from Indiana, a state his party almost certainly was going to carry anyway.

Assuming Trump is the GOP nominee once again, it would make more sense for him to select a vice presidential candidate popular in a large swing state. He should consider candidates from Pennsylvania (19 electoral votes), Ohio (17), Georgia (16), Michigan (15), Virginia (13), Arizona (11), or Wisconsin (10). It would make no sense for Trump to select a running mate from Florida, which he is likely to carry anyway.

Of course, the choice also is constrained by other factors. These include what candidates are available, whether they are credible and experienced, whether they can attract donors, whether they are willing to run, how popular they are in their home states, and whether the selection is likely to flip a key state or other constituency.

Rob Natelson