Thank you for sharing!

Your article was successfully shared with the contacts you provided.
From Day One, Democrats have attacked Texas Gov. George W. Bush and former Defense Secretary Dick Cheney as the “two Texas oil men” ticket. Following on that theme, a number of legal commentators have raised 12th Amendment concerns with the Republican team. That amendment does not bar the election of a president and vice president from the same state. But it does prohibit members of the electoral college from voting for a president and a vice president who are both inhabitants of their state. Commentators claim this limitation might prove crucial in this close race, should Cheney require Texas’ 32 electoral votes to garner a majority. This view is mistaken: Cheney is not an “inhabitant” of Texas. DOMICILED INHABITANCY It is well-established that one’s “domicile” is determined by physical presence in a particular state and intent to make one’s home there indefinitely. A person must have one and only one domicile at any moment in time, and the only way to lose domiciliary status in one state is to gain such status in another. By contrast, “residence” is a broader and more inclusive concept, reflecting the reality that a person can live in more than one state at one time. But the 12th Amendment does not explicitly refer to either of these legal concepts. Instead, the Constitution employs the more ambiguous term “inhabitant.” That word escapes easy definition. Even though it has existed for more than two centuries, the constitutional reference to “inhabitant” has not been authoritatively analyzed or construed. And in various statutory contexts, courts have construed the term in a number of ways, spanning “a range of different relationships between a person and a place,” as Justice Stephen Breyer stated when he was a court of appeals judge. The strongest arguments, however, favor importing the concept of domicile into the 12th Amendment. After all, the founders imposed the “same state” restriction on the electoral college out of concern with one’s competing loyalties between the states and the federal government, sentiments that arise from one’s permanent home, not merely one’s current residence. The constitutional history bears this out. At first, the framers of the Constitution debated having a popularly or congressionally elected chief executive. They eventually rejected both ideas out of concern for “the disadvantage under which it would place the smaller states.” As they settled upon the electoral college, the founders specifically imposed the same-state restriction on electors “as a cure for this difficulty” of electoral college members voting only for candidates from their own states. Additional guidance might also be gleaned from the fact that the Constitution requires that senators and representatives be inhabitants of the state they seek to represent. As Justice Joseph Story explained, the framers supposed that “an inhabitant would feel a deeper concern, and possess a more enlightened view of the various interests of his constituents, than a mere stranger.” Furthermore, in the Constitution both state citizenship for purposes of federal court jurisdiction and residency within the United States for purposes of presidential eligibility are determined by domicile, and there is no apparent reason to define inhabitancy any differently. ONE TEXAS LESS So how does Cheney stack up against these constitutional principles? Beautifully. That Wyoming, not Texas, is the home state of Cheney’s past, present, and future cannot seriously be questioned. Raised in Wyoming, schooled there through college, and married there, Cheney represented a Wyoming congressional district for six terms. And although he also served in a number of executive branch posts in Washington, the Cheneys have kept a home in Wyoming for almost 25 years, and have made it their primary residence once again. As recently re-registered Wyoming voters, they voted in the Aug. 22 Wyoming congressional primary. According to Wyoming’s chief elections official, Secretary of State Joe Meyer, the Cheneys spend considerable time in the state. Taken in its entirety, this is ample evidence to establish that the Cheneys are Wyoming domiciliaries. Moreover, their situation satisfies the very concerns that originally motivated the same-state rule. With just three electoral votes, Wyoming is the pre-eminent small state the 12th Amendment was designed to protect. And if first lady Hillary Rodham Clinton is an inhabitant of New York, as Article I says she must be in order to represent New York in the Senate, Cheney is an inhabitant of Wyoming by any measure. To be fair, the two tests are not precisely the same. Mrs. Clinton needs only to be an inhabitant of New York. By contrast, Cheney must show that he is not an inhabitant of Texas. But assuming inhabitancy is, indeed, properly determined by domicile, the two tests merge into one, because a person can be domiciled in only one state at one time. Moreover, the Bush-Cheney team need not worry even if residency is the rule, for Cheney is not a resident of Texas. The sole connection of Cheney’s lifetime with the state of Texas arose from his decision in 1995 to take a job in Dallas with the Halliburton Co. Since his resignation from Halliburton, the Cheneys have put their Dallas home on the market, departed the state, and returned to Wyoming, where they now reside in Jackson Hole (although frequently hitting the road to campaign, naturally). Thus, the Cheneys have not only re-established their domicile in Wyoming, but have also terminated their residence in Texas. (Their Virginia residency is, of course, of no consequence to this analysis.) All of which is to say, it takes a pretty exotic interpretation of the 12th Amendment and of the facts to find that Cheney is an inhabitant of Texas. Finally, even supposing a different set of facts under which Cheney is currently an inhabitant of Texas, the 12th Amendment poses no difficulty. As a matter of constitutional law, the 12th Amendment problem is an easy one to avoid or cure. The same-state prohibition matters only if the vote margin in the electoral college is close. And it matters only if the Senate, which decides the vice presidency in the absence of an electoral college majority, reverts to Democratic control. But as political observers widely note, a Bush-Cheney victory is unlikely to be accompanied by a Democratic takeover of the Senate. Furthermore, it is far from obvious that elder statesmen of the Democratic Party like West Virginia’s Robert Byrd would vote to install Sen. Joe Lieberman as Bush’s vice president — and that’s assuming Lieberman himself would even go along with such an odd endeavor. Lastly, what truly makes this controversy an entirely academic one is the fact that an individual possesses complete control over his 12th Amendment status. The Constitution examines inhabitancy at only one moment in time: when the electoral college votes. It does not require inhabitancy over a duration of time, as it does with respect to U.S. citizenship for members of Congress and U.S. residency for presidents. The Constitution thus bars Texas electors from voting for both Bush and Cheney only if Cheney is a Texas inhabitant at that time. Just as Mrs. Clinton can become a New York inhabitant at will, by moving into the state any time before the election, so, too, can Cheney terminate his Texas inhabitancy at will, by moving out of the state before the electoral college meets — as indeed they both already have. In sum, the 12th Amendment challenge is at most an amusing distraction for constitutional scholars. It poses no threat whatsoever to the election of the Bush-Cheney ticket. James Ho, a new associate in the D.C. office of Gibson, Dunn & Crutcher, can be reached at [email protected]

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.