It’s that time of the political season, when vice presidential speculation ramps up. While Donald Trump carefully vets longtime aides John Miller and John Barron as potential GOP picks, the Democratic side features big questions as well, not least of which is: Will Hillary Clinton pick a woman, giving Trump extra fits?
We know Trump doesn’t handle criticism well, and that goes doubly so for female critics. He’s called Rosie O’Donnell a “fat pig,” claimed Fox News anchor Megyn Kelly had “blood coming out of her wherever,” and even went after Ted Cruz’s wife, Heidi, during their primary contest. So naturally, Democrats like Elizabeth Warren, Maria Cantwell and Hilda Solis are getting looks.
{mosads}But one top-tier Democrat is continuously dismissed: Kirsten Gillibrand, all because she is from New York, where Clinton once served as senator.
The Boston Globe recently wrote that Gillibrand would face “a constitutional muddle that makes it challenging to put two leaders from the same state on a ticket.” The New York Times, in a correction, wrote, “Ms. Gillibrand and Mrs. Clinton are both from New York, and the Constitution effectively prohibits the election of a president and a vice president who are from the same state.” The Daily Caller wrote, “Kirsten Gillibrand would not qualify to be Clinton’s running mate as the Constitution prohibits the president and vice president from being from the same state.”
There is some precedent here. After all, in 2000, Dick Cheney “moved” to Wyoming from Texas to avoid having two candidates from the same state.
But the Constitution is clear: There’s no such prohibition.
What exactly does the 12th Amendment say? “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.” Those two last words are key: Electors can absolutely vote for a president and vice president from the same state, unless those candidates are from the same state as the electors themselves.
So looking at a Clinton-Gillibrand ticket, they can run together without any problem. When it comes time for New York’s 29 electors to cast votes, they just won’t be able to vote for both Clinton and Gillibrand. That’s not a problem if there’s a large victory margin. But what about a tight campaign?
In 2000, a partisan and compromised conservative Supreme Court handed Republican George W. Bush an unearned victory over Democrat Al Gore by just five electoral votes, 271-266. Had Cheney remained a Texas resident, that state’s 33 electors would not have been able to vote for both Bush and Cheney, meaning that situational Democrat Joe Lieberman would’ve ended up vice president — not that there would’ve been any difference between him and Cheney in the end.
Given New York’s large cache of electors, Democrats might not want to risk a situation in which, after a close election, Hillary Clinton is saddled with whatever lackey Donald Trump coughs up as a running mate. But even then, there’s an out. Because a state can choose how it selects its electors, New York could simply pass a law requiring its electors to be from New Jersey, Connecticut or wherever. There is simply no constitutional provision requiring New York electors to be from New York.
So all in all, it’s clear that this provision is silly, outdated and easily circumvented. If Clinton wants Gillibrand on her ticket — or if Trump wants Ivanka — no problem! It can happen.
Moulitsas is the founder and publisher of Daily Kos.