Would a Trump-DeSantis ticket be constitutional?

With Donald Trump having won the Republican primary, speculation now turns to his running mate. Two individuals he has publicly floated as his potential vice president are, like Trump, from Florida: Gov. Ron DeSantis and Rep. Byron Donalds, with DeSantis appearing to be the favorite of Republicans for vice president. But the 12th Amendment may stand in the way of nominating either.

That’s because the 12th Amendment states that presidential 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.” (Similar language, which the amendment replaced, was in the original Constitution in Article 2.)

If both the president and the vice president are from the same state, then arguably that state’s electoral votes could not be counted. And in a close election, Florida’s 30 electoral votes could make the difference.

Perhaps this seems like an odd requirement, but the Framers of our Constitution were keen students of human nature. As James Madison observed, it is “the disposition in the people to prefer a Citizen of their own State.” But if the president and vice president were from the same state, in a time when people tended to identify more as a Virginian or a New Yorker than as an American, one state could then dominate the executive branch. And that would likely be a large state rather than a small one, since the former has more electoral votes. It might also lead to electoral ties if every state just voted for their own “favorite sons.”

This obscure constitutional provision, however, has seldom been given much attention. The one exception was in 2000. At the time, Dick Cheney was living in Texas, working for Texas Gov. George W. Bush, when Bush decided to select Cheney as the vice presidential candidate after Bush had won the Republican primaries. To avoid any problems, that July, Cheney moved back to Wyoming, where he had been born, raised, gotten married, gone to school, represented the state in the U.S. House of Representatives and still owned a house.

A lawsuit was brought in Texas, and the federal court found, among other things, that no constitutional violation had occurred because Cheney was now an inhabitant of Wyoming and would be when the electors met to cast their votes that December.

Given how little precedent there is on this issue, there are at least three questions that will have to be answered if Republicans go with an all-Sunshine State ticket.

Who decides?

First, who gets to decide? Normally one might think it’s up to the courts if someone sues. But there is a legal doctrine called the political question doctrine. It holds that courts should decline deciding political issues that the Constitution has textually committed to another branch of government to resolve. For example, the following have been found to be political questions such that courts could not decide the issue: when a war ends, the recognition of foreign governments, and whether a house of Congress should allow one of its members to take his or her seat.

Because the Constitution gives the counting of electoral votes to Congress, there is an argument that Congress, not the courts, should determine the 12th Amendment issue. So, while one court 24 years ago reached the issue without addressing whether it was a political question, courts today could determine that they cannot decide a 12th Amendment challenge. Understandably, then, a Congress that was controlled by the Democrats on Jan. 6, 2025, might view the issue differently than one controlled by the Republicans.

What does it mean to be an ‘inhabitant’?

Whoever decides, be it courts or Congress, will have to wrestle with what the word “inhabitant” means in the 12th Amendment. Does it mean just someone residing there? Someone who is a legal citizen of the state? Something else? The court that decided which state Dick Cheney was an inhabitant of settled on another legal concept: domicile. That concept, invented long after the 12th Amendment was adopted, requires physical presence in the state and an intent to remain there indefinitely.

As to intent to remain, courts look at things like voter registration, property ownership, where one pays taxes and has a driver’s license, and other signs of whether one has established the state as their home. Should this be the definition of “inhabitant,” then DeSantis or Donalds could resign their positions, move to another state, and show their intent to remain by some of the activities listed above.

It’s not clear, though, that that definition is the proper one. A legal scholar argues, based on founding-era dictionaries and the intent of the Constitution, that “inhabitant” should be someone “who physically resides or owns real property in a given state.” But that this should be interpreted in light of the Framers’ intentions of preventing one state from providing both the president and vice president. And so, where there is a question because someone has residences in different states or just changed their residence, the controlling factor should be the individual’s participation in politics in or on behalf of the state.

Should courts or Congress adopt that meaning of “inhabitant,” it might be harder for one of these two potential vice presidential nominees to change their state of inhabitation given their recent history in Florida politics. Trump, on the other hand, might be able to give up his recently acquired Florida status and return to New York or perhaps New Jersey, and satisfy this stricter understanding.

When is the date of determination?

Finally, courts or Congress would have to decide which date matters for determining the state one is an inhabitant in. There are two possibilities. The first is the date the electoral voters cast their ballots in December. Given the 12th Amendment’s text, that seems the most likely date. And if correct, then one could possibly become an inhabitant any time up until then, meaning one could wait to see the election results to determine whether to move elsewhere.

Another possibility is the date of the November election, when America goes to the polls. While a less direct argument, the reasoning for that date would be that electors are bound to vote according to the election results in their state under state laws, the constitutionality of which has been confirmed by the Supreme Court. These state laws make the later electoral college ballot casting a mere formality. Thus, it is the earlier date that had determined how the electors will vote, and the one that should matter. If that is the date that counts, one of the two Floridians would have to become an inhabitant of another state prior to knowing whether he won the election.

Of course, for any of this to become relevant, Trump would have to both pick someone from Florida to run as his vice president, win the election and win by enough that Florida’s electoral votes matter. But if that all occurs, then the 12th Amendment may have the last say.