Cheney Would Face Constitutional Hurdles

ByMarc Ambinder

July 20, 2000 -- If George W. Bush picks former Defense Secretary Richard Cheney as his running mate, a prospect that has been the subject of increasing speculation, he could face a constitutional hurdle when electoral college members from Texas cast their votes.

In recent days, several senior Republican sources have suggested that Cheney, who is heading up the Texas governor’s search for a presidential running mate, might well be on the list himself. And Bush’s refusal to rule out tapping Cheney in a chat with reporters aboard his campaign plane Tuesday night started political tongues wagging.

When questioned by ABCNEWS, Cheney refused to comment on reports he’s a leading contender, saying only “He (Bush) will make a decision this week.”

But there’s a hitch in the Bush-Cheney pairing. Both Bush, who lives in Austin, and Cheney, who lives in Dallas, reside in Texas.

And under the 12th Amendment, electors can cast their votes for president and vice president with one restriction — one of the two “shall not be an inhabitant of the same state with themselves.”

If the peculiar term “inhabitant” is equivalent to the modern day “resident” — as some constitutional law experts say it might be — electoral votes cast for both Bush and Cheney by Texans could theoretically be disqualified.

Option 1

Cheney could try to reestablish residency in another state — perhaps in Nebraska, where he was born, or Wyoming, where he served as a congressman.

But “residency” means different things to different state agencies.

“If it was to register to vote,” explains Pat Arp, a spokesman for the Wyoming secretary of state, “we are a state that has same-day voter registration — then you could register to vote,” she says.

But if Cheney wanted, say, a license to hunt game, he’d have to wait at least a year.

And legal experts say it’s up to the courts to decide which type of residency would be constitutionally correct.

“Under the common law, it probably would [mean] ‘domicile’ — where someone resides with an intent to stay,” says Todd D. Peterson, a professor of law at Georgetown.

It is not known at this writing if Cheney still owns a residence in Wyoming.

In Texas, according to Elizabeth Hanshaw, an official with the secretary of state, “the law says you must be domiciled here, absent any temporary absence” to be a resident.

Option 2

Bush and Cheney could take their chances with the court system.

Supposing their ticket was challenged in federal court, judges would be anxious to avoid a constitutional crisis over a historically obsolete provision of the Constitution, Peterson says.

“I think it’s quite likely that a case raising could be deemed a political question, something to be decided by the electorate or something to be decided by Congress as the judge of elections,” he said.

But the political implications of running a ticket which seems to violate explicitly an amendment to the Constitution might not be palatable, particularly for strict-constructionist Republicans.

Option 3

Since the Electoral College casts its ballots separately for the president and vice president, electors could merely abstain from voting for the latter.

“It would comply with the 12th Amendment technically for Texas to vote for George Bush and then abstain with regard to the vice president,” says Sanford Levinson, a constitutional law professor at the University of Texas at Austin.

But if Bush eeked out a victory by receiving just a sliver more than the 270 electoral votes needed to win, andthe 32 Texan electors abstained from voting for Cheney — the vice-presidential candidate would not have enough votes to take office.

Under the Constitution, the Senate would then decide who gets the job. Given that Republicans hold a five-vote majority over Democrats, however, Cheney would almost certainly be chosen.

Back in Time

The “inhabitant” provision has its roots in early American ideas of a Republican form of government — where the most virtuous citizens were tasked to choose the most sagacious for political office, Levinson says.

“Their notion was that the wise, virtuous members of the Electoral College would first pick the most virtuous personand the second most virtuous person to be vice president,” he says.

But virtue didn’t always equal political accommodation. A president and vice president who disagreed on policy matters could hold the countrycaptive to their tangles.

Political parties became important in 1796, when John Adams, a Federalist, was elected president, and Thomas Jefferson, a Democratic-Republican, was elected vice president. Electors pledged to be faithful to their party’s choice.

In 1800, Jefferson and fellow Democratic-Republican Aaron Burr tied in the Electoral College, so the vote was thrown to the House of Representatives.After more than 30 ballots, Jefferson won by a tiny majority.In 1804, states ratified a constitutional amendment that separated the balloting process. From then on, the vicepresident and the president would be chosen separately — on what the amendment calls “distinct” ballots. And candidates for presidentran with a running mate they or their party selected.

At the time, given sectional differences and concerns about one state holding a monopolyon electoral power, it made sense to require that the president and the vice president be chosen fromdifferent states, Levinson says.As the country’s economy integrated, politically relevant differences between states diminished — and renderedthose lines of the 12th Amendment “one of those little minefields hidden in the Constitution,” he says.

ABCNEWS’ Mark Halperin and Ann Compton contributed to this report.

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