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Looking at the 12th Amendment to the Constitution, Peter Shane wonders if Texans are technically able to vote for Cheney and Bush
Sunday, August 06, 2000
In the probable event that George W. Bush carries Texas this November, it may prove something of an embarrassment if his pledged electors turn out to be constitutionally disqualified from supporting both Gov. Bush and his running mate, Dick Cheney.
The 12th Amendment, which prescribes our current presidential selection system, provides that the actual ballots for president and vice president shall be cast by "electors" who are chosen in each state under rules to be prescribed by the respective state legislatures. Once chosen, pursuant to the amendment: "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."
In changing his voting registration from Texas to Wyoming, Cheney recently changed the state in which he is a "citizen" and "domiciliary." He restored Wyoming as his permanent legal home, the place to which he is committed to returning.
The potential difficulty is that the 12th Amendment does not depend on the state in which a candidate is a "citizen" or "domiciliary," but rather on where he is an "inhabitant." Legally, a person can be an "inhabitant" or resident of more than one state, even though, especially for voting purposes, he can be the citizen of only one.
Thus, even if Cheney ceased to be a Texas "citizen," that may not mean, constitutionally speaking, that he gave up being a Texas "inhabitant."
The 12th Amendment's use of the word "inhabitant" is identical to the wording of Article II, Section 1 of the Constitution, which prescribed the original version of the Electoral College just 17 years before. Under the earlier system, members of different political parties could - and, in 1796, were - elected president and vice president. It was to repair that problem that the 12th Amendment was crafted after the procedurally tangled election of 1800.
The Framers' choice of the word "inhabitant" would appear deliberate. When they wanted to speak of citizenship - as in allowing federal courts to hear controversies "between citizens of different States" - they used the word "citizen."
In speaking of electoral eligibility, however, they repeatedly used the word "inhabitant." For example, under Article I of the Constitution, no one may be elected a representative or senator, unless that person "when elected, [is] an inhabitant of that state in which he shall be chosen." Using "inhabitant" is consistent with the purpose of the electoral rule for presidents. The framers did not want electors from the large states casting all of their votes for inhabitants of their own states. Presumably, what would lead an elector to favor a local candidate is not "citizenship," which is a fairly technical matter, but rather, local popularity and esteem, which are matters of presence, shared interests and values, and familiarity.
The Constitution does not bar candidates from inhabiting more than one state. If, like Robert Kennedy, James Buckley, or Hillary Clinton, a congressional candidate becomes an inhabitant prior to Election Day of the state she seeks to represent, it makes no difference if she inhabits other states also. Congressional candidates need only be significantly present in the states for which they hope to speak.
Giving up being an inhabitant, however, may be trickier. Has Cheney sold his Texas home? Given up his Texas business offices? Resigned his Texas country club memberships? These may be appropriate tests of habitation, even if not of state citizenship.
To be fair, the matter is not free from doubt. Legal drafters sometimes use "inhabitant," "resident," "domiciliary," and "citizen" as if they were synonyms. Sixty-four years after the 12th Amendment, the drafters of the 14th Amendment crafted a sentence in which "inhabitant" and "citizen" must mean the same thing: "[W]hen the right to vote at any election . . . is denied to any of the male inhabitants of such state, . . . the basis of representation [for the state] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such state."
But, of course, the drafters of the 14th Amendment did not draft the 12th.
Who then is to resolve this problem? Presumably, authority to resolve this issue would lie with the next Congress, whose job it shall be to open and count the electoral votes. This may make the composition of that Congress a vital matter for a wholly unanticipated reason. It should be a worry for strict constructionists.
Peter Shane is a professor of law at the University of Pittsburgh and visiting professor of law and public policy at the H.J. Heinz III School of Public Policy and Management at Carnegie Mellon University.