MILWAUKEE — Florida Man Donald Trump could select fellow Florida Man Marco Rubio as his running mate, but it makes winning November more complicated.
This involves one of the most misunderstood parts of the Constitution, the second clause of the 12th 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.”
Trump is now a Florida resident, but nothing in the Constitution prevents him from having a Floridian running mate. Also, nothing in the Constitution would prevent a Trump-Rubio ticket from winning Florida.
What that 12th Amendment passage prohibits is any individual Florida elector from voting for both Trump as president and Rubio as vice president.
Practically, that would be a problem for a Trump-Rubio ticket. It’s not an insurmountable problem, but it’s a problem.
Florida has 30 votes in the Electoral College. Normally, it takes 270 electoral votes to win, but the only way for a Trump-Rubio ticket to win in a normal way is to win states worth 285 electoral votes. (Trump could do this by winning his 2020 states plus Georgia, Pennsylvania, and Michigan.)
In that situation, all 255 non-Florida Republican electors would vote Trump-Rubio. Half of the Florida electors would vote Trump for president and then vote blank (or some placeholder Republican) for vice president. The other half would blank their presidential vote and then vote Rubio for VP. Both men would have 270 votes, and they would be the president and the VP.
What if Trump won Georgia, Michigan, and Wisconsin but not Pennsylvania? He’d have 276 electoral votes, but 30 of those votes would be from Florida. In that case, 24 of Florida’s electors would have to vote for Trump in order to get him to 270. Thus only six electors could vote for Rubio, leaving him at 252 — in second place behind Kamala Harris, who would have 264. Nobody would have enough votes to be the vice president.
What would happen then? The Senate would get to pick the VP from among the two highest vote-getters. So if Republicans controlled the Senate, then the Trump-Rubio ticket wouldn’t need any more than the normal 270 EVs.
Slightly more complicated: If the Democrats controlled the Senate, a Trump-Rubio ticket could nonetheless win with a bare majority — if the Republicans controlled a majority of the House delegations. In this case, the Florida electors would vote “blank”-Rubio, and so Rubio would be elected VP. But nobody would have the majority of electoral votes for president.
The House would choose the president among the top three vote-getters. But again, it wouldn’t be a straight vote of 435 members — it would come down to who controls a majority of the state delegations. The Republicans will probably control at least 26 state delegations in the next Congress, and so they could give Trump the presidency.
Getting elected president or vice president by Congress rather than the Electoral College is suboptimal, but it’s not impossible. These dilemmas are an argument against picking Rubio as a running mate, but they’re not conclusive.