That Dog Don't Hunt: The Twelfth Amendment after Jones v. Bush

Abstract

Prior to the 1804 presidential election, electors did not cast separate ballots for President and Vice President. The candidate receiving the most votes was elected President and the runner up, Vice President. To differentiate between the party's choices for each office, one elector was designated to cast an odd vote so that the two candidates would not receive identical totals. The latent difficulty with this provision came to the fore in 1800 when the Democratic-Republican nominees dead- locked. The Twelfth Amendment was subsequently adopted to correct this defect, and, thereafter, electors have been required to cast separate ballots for President and Vice President. Amendment XII states: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; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President....Although the District Court's decision with regards to the definition of "inhabitant" in Jones v. Bush is not binding precedent, it does call for an examination of the Twelfth Amendment's meaning of "inhabitant" and the role of the Federal judiciary in the certification process of electoral votes. The court ruled that the term "inhabitant," as used in the Twelfth Amendment, is coextensive with the legal doctrine of domicile used in determining state residency for the purpose of establishing diversity jurisdiction in Federal courts.' This interpretation effectively swallows whole the requirement that both candidates standing for election for President and Vice President be from different states. It also contravenes both the text of the Twelfth Amendment, and the intentions of the Framers to prevent two favorite sons of the same state from running together. Based upon the decision in Jones v. Bush, future presidential candidates could reasonably read it to allow the selection of running mates that may be clearly inhabitants of the same state under the Twelfth Amendment, but cosmetically change their residence in order to run for high office.This Article seeks to: (II) examine the decision in Jones v. Bush and its implications regarding the future of the Twelfth Amendment's inhabitancy requirement, (III) examine the meaning of the term "inhabitant" as intended by the Framers and as it applies to the Cheney case, and (IV) argue that the interpretation of the meaning of the term "inhabitant" in the Twelfth Amendment is intended to be made by the United States Congress in its capacity as the certifier of electoral votes, not the Judiciary, thereby coming under the rubric of the Political Question Doctrine.