12th Amendment and Cheney

[john_eastman at LA.KIRKLAND.COM]

Professor Bernstein seems to have overstated the prohibition of the 12th
Amendment, which is simply that electors cannot vote both for a President and
Vice-President who are members of their state.  The Texas delegation, therefore,
would have to abstain from voting for Cheney.  If Cheney nevertheless receives a
majority of electoral votes, he would become Vice President.  If the abstention
of the Texas delegation costs him a majority, the election would be thrown to
the Senate, with each Senator having a vote (presumably, unless the Texas
delegation chose to cast their votes instead to Gore's running mate, thus giving
him a majority).  THis is in contrast to the election of a President, which goes
to the House and where voting occurs by state, with each state having one vote.
Thus, depending on the large state vs. small state make-up of the Bush electoral
majority, election in the Senate could well go for Gore's running mate.

For those who participated in the earlier discussion about whether Bill Clinton
could be Gore's running mate, note the last sentence of the 12th Amendment:
"But no person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States."

-- John Eastman
Chapman University School of Law


As I understand it, the 12th Amendment bars the president and
vice-presidential candidates from being "inhabitants" of the same state.
 Dick Cheney was a resident of Texas until last week, when he changed
his voter registration to Wyoming. He has houses in both states.  It
seems to me, however, that someone who resides in one state, is
registered to vote there, etc., and then just before being nominated
decides he rely resides elsewhere can reasonably be construed to
actually be an "inhabitant" of the first state.  Or perhaps Cheney
should be considered an inhabitant of both states, since he has houses
in each.  In any event, though I think the consequences are stupid, I'm
not sure that Cheney can constitutionally serve as VP.  Any thoughts?

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>