July 28, 2000

IS DICK CHENEY REALLY A TEXAN?

Shortly before Texas Gov. George W. Bush announced that Dick Cheney was his choice for vice president, Cheney changed his voter registration from Texas to Wyoming.

His reason: to forestall problems in the Electoral College. The 12th Amendment, ratified in 1804, limits electors from any state from voting for both a president and vice president who are inhabitants of the same state as themselves.

People from other states thought the Virginians had entirely too many players on their team.

Suppose a two-Texan Bush-Cheney ticket were elected, but by a small enough margin that it needed all of the Lone Star State's 32 electoral votes for a majority. The Texas electors could vote for Bush, leaving Cheney without a majority, and in such a case the Senate chooses the vice president. Or they could vote for Cheney, and leave Bush without a majority. Then the House of Representatives chooses the president from among the top three candidates in the Electoral College, with each state having one vote.

The Constitution doesn't say how the state delegations decide that vote, nor which House -- the current one, or the one to be elected in November -- will carry it out. Probably the Republicans would still have a majority in more than half the state delegations, even if control of the House went narrowly to Democrats. But if not, there would be plenty of opportunity for political mischief-making.

My brief summary doesn't come close to exploring the possible complications, as I have learned from following the debate about Cheney and the 12th Amendment on an Internet discussion group (or "listserv") for professors of constitutional law. I honor the listserv custom that posts are not for public attribution, but, with thanks to all of them, here are a few of their more imaginative scenarios.

"The fun would come if (electors) voted for veep first, picked Cheney, then voted illegally for Bush, casting the presidential election into the House, and as of January making Cheney president. Then he picks a vice president, of course, and gets him confirmed, while the House fights over the presidency. Then the House finally picks a president (maybe Gore). Does Cheney revert to vice president or does his vice president stay in the job?"

"As I think about it, the way it arises is that Al Gore opens the Texas envelope, and whoever are serving as tellers report 32 votes for George Bush and 32 votes for Richard Cheney. At that point, someone objects that these are unconstitutional votes. And after that, they are on their own."

"So how about this: Bush and Gore both end up with, say, around 235 votes apiece, while Ralph Nader, in a shocker, picks up California. (And the Democrats get the House back on a majority, but the Republicans control more states because of the ones with tiny delegations (like Idaho or Wyoming). On Jan. 20 they're still struggling over how to make the decision, while a Republican Senate has picked Dick Cheney as VP. Presumably he would become the 'acting president.' Since many thoughtful persons would prefer the competent, albeit bland, Cheney to the current Texas governor as president, perhaps the House would agree simply never to pick among the top three, leaving Cheney to govern. But, of course, having had three heart attacks already, one might fear his demise. Then who would succeed him? Speaker of the House Gephardt?"

And you thought the legal profession was uncreative?

Obviously, life would be much simpler if Cheney were an inhabitant of Wyoming, but is merely changing his voter registration enough to accomplish that?

One person called it a "cynical ploy," but others were willing to give a little ground.

"I would look for serious indications that he had broken some of his major connections with Texas (e.g., resigning the Dallas job rather than taking a leave of absence from it, and selling the home in Dallas) and strengthened some of his connections with Wyoming." "Americans move. . . . So Cheney changes his residence to run, and then changes it again. ... I think Cheney's intentions are irrelevant."

Cheney was a six-term congressman from Wyoming, so his ties to the state are genuine and long-standing. If he moved back there essentially as soon as the Republican convention was over, why would Texas electors meeting in December want to insist he was really still a Texan? And if they said he wasn't, who could say they were wrong?

Even if there's no practical problem, I'm delighted to know how many lovely theories inquiring minds can spin out of such a tiny bit of the constitutional fabric.

(773 words)