If Marco Rubio of Florida were the Republican presidential nominee, could he pick Jeb Bush of Florida as his running mate?
Absolutely, yes, no doubt about it.
There is regularly confusion over this. Major newspapers have reported falsely that the Constitution prohibits a one-state ticket, or that the candidates on such a ticket would forfeit their right to their home state’s Electoral College votes. These things are false. There are surely political reasons to not have a single-state ticket, or to not pick Jeb Bush as your running mate, but the constitutional issue is much smaller than many people think, and in the hypothetical case of a 2016 Rubio-Bush ticket, it’s basically a non-issue.
For 2016 the slight difficulty boils down to this: If the GOP nominated a Rubio-Bush ticket, and they won in a close election, it might be left to the Republican-controlled Congress — rather than the Electoral College — to actually elect either Rubio or Bush.
Here are the details:
What does the Constitution say about single-state tickets?
The 12th Amendment reads:
“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”
That means that if Rubio-Bush carries Florida on Election Day, thus carrying the state’s 29 Electors, when the Electoral College meets in December, none of those 29 Electors may vote for both Rubio and Bush. They also wouldn’t have to vote for Hillary Clinton and Maggie Hassan, or whoever the second-place finishers in Florida are. They could vote Rubio-BLANK or BLANK-Bush. Or they could vote Rubio-Ryan or Amash-Bush. Whatever.
If the single-state ticket wins by enough, this doesn’t matter
If it’s a blowout, and Rubio-Bush win states worth 300 electoral votes, the 29 Florida electors simply all vote Rubio-BLANK. Thus Rubio gets 300 electoral votes, and Bush gets 271, and woohoo, go Florida!
But they wouldn’t need 300 to make it that easy. They need the margin of victory to be more than 50 percent of the state’s EVs. That is, an all-Florida ticket would need to win states worth 285 electoral votes in order win in the Electoral College (assuming Florida is one of their states).
Put another way: A single-state ticket can win in the Electoral College if it wins enough electoral votes outside of their home state that it needs less than half of its home state electors.
or:
270 electoral votes [minus] (Home state electoral votes/2), rounded up to the nearest integer.
As I’ve written before: imagine Rubio-Bush win what Romney won in 2012 plus the six closest Obama states — Florida, Ohio, New Hampshire, Colorado, Iowa, and Virginia. That would be, on the Election Night scoreboard, 285 electors. It takes 270 electors to win, so this would be a 15-vote cushion.
Before Florida’s votes, they’d be at 256. So, 15 Florida electors vote Rubio-BLANK, bringing him up to 271. the other 14 Florida electors vote BLANK-Bush, bringing him up to 270, and woohoo, Go Florida!
What if they barely win on Election Night? The Republican Congress can settle things for Rubio-Bush
Picture the above result. Bush-Rubio don’t have enough electors to spare. It would take 23 Florida electors voting for Rubio to get him to 270, and so only six are left for Bush, leaving him at 253, in second place behind the Democrat.
So Rubio’s the president, but the Electoral College hasn’t chosen a vice president. Or vice versa: If enough electors voted for Bush as vice president, that would leave Rubio in second place for President.
The Democrat, even though he or she would have the highest number of votes in the Electoral College, wouldn’t win, because he or she would be below 270, also. Here’s what the Constitution prescribes:
… if no person have such majority [of Electors for President], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote. …
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President….
In English: The House gets to choose the President among the top three finishers if none has a majority, and the Senate gets to choose the Vice President from the top two finishers if none has a majority. The asterisk is that the House doesn’t vote normally, but each state delegation casts one vote.
This is why this isn’t a problem for Rubio-Bush. This joint session of Congress would be January 6, and so it would be the newly elected Congress, not the lame-duck one. Republicans currently hold a majority in the Senate. If Republicans keep that majority on Election Day 2016, then Florida’s electors, in a close election, could all vote Rubio-BLANK, and the GOP-led Senate would choose between the Democratic vice presidential candidate and Bush.
If the GOP loses the Senate, which is not unlikely, then they do it the other way around: All Florida electors in a close election vote BLANK-Bush, and the House, voting by state delegation would choose the President from among the top three recipients of electoral votes. Probably only two people would have received electoral votes — Rubio and the Democratic nominee.
The current House breakdown is 33 GOP state delegations, 14 Democratic delegations, and three delegations split evenly. It’s very hard to see Democrats taking away 8 of those 33 delegations, and it’s impossible to imagine them gaining 12 to get a majority.
So, a Rubio-Bush ticket is perfectly legal, and they don’t need to win a single extra state more than a multi-state ticket would have to win — but if they won in a close election, one of them might have to be chosen by the House or the Senate.
Parting notes
Would getting elected by the House instead of the Electoral College cast a shadow of illegitimacy over a President Rubio? No, especially because he would have really won the Electoral College, except for a technicality. If he lost the popular vote, Democrats would clearly agitate about it.
Would this be different for Democrats? Yes, Democrats would be taking a huge risk to have a single-state ticket because they won’t control the House delegations, and they may not control the Senate next year.
Would this be less of a deal if both candidates were from a smaller state? Yes. If we had a Bernie Sanders-Howard Dean ticket, they’d only need to pad their Election Day victory by two electoral votes to avoid winning in Congress.
Am I a RINO supporter of Shamnesty for writing about Rubio and Bush, even in a hypothetical exercise of constitutional law and electoral math? Probably, if that makes you feel better.
Timothy P. Carney, The Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Tuesday and Thursday nights on washingtonexaminer.com.
