(WASHINGTON) — Florida Sen. Marco Rubio is said to be among the top candidates former President Donald Trump is considering as his pick for vice president, but there’s a major obstacle standing in his way: his Florida address.
Rubio is viewed as an individual who could help Trump attract Hispanic voters and has substantial experience in foreign policy as vice chairman of the Select Committee on Intelligence and the senior member of the Committee on Foreign Relations.
However, the 12th Amendment to the Constitution states that presidential and vice presidential candidates running on the same ticket “shall not be an inhabitant of the same state with themselves.” Currently, both Trump and Rubio claim residency in Florida.
It boils down to electors — the party loyalists nominated by a state’s political party to pledge support to the nominee. The Electoral College is made up of 538 of these electors, and 270 electoral votes are needed for a candidate to clinch the White House. The number of electors apportioned to states is based on population — and Florida has a crucial 30 electoral votes.
The 12th Amendment was added to the Constitution in 1804 to modify the Electoral College process — specifically how the president and vice president are selected at once.
If Trump selected Rubio as his running mate, electors from Florida could not vote for both Trump and Rubio under the 12th Amendment. But it would be perfectly fine for electors from the other 49 states to vote for both. Most states give all their electoral votes to whichever candidate wins that state’s popular vote.
“So, it is not prohibited to have both candidates from the same state; it just sacrifices their chances of winning a full slate of electoral votes from their home state,” Thomas Berry, a legal fellow at the Robert A. Levy Center for Constitutional Studies and the editor-in-chief of the Cato Supreme Court Review, told ABC News.
Laurence Tribe, professor emeritus of constitutional law at Harvard University, told ABC News that in “concrete terms” this means that “none of Florida’s 30 electoral votes may be cast this December for both Trump and Rubio unless Rubio or Trump ‘ceases to be an inhabitant’ of Florida before Dec. 17, 2024,” which is when the electoral college votes.
It’s doubtful that Trump would change his residency from Florida, having made it his primary residence in 2019, changing it from New York. So, it would fall on Rubio to change his residency.
“Thus, it follows that Trump can’t select Rubio as his running mate without sacrificing those crucial 30 votes toward his needed 270, which he of course wouldn’t do unless Rubio abandons his Florida residence before the election,” Tribe said.
There is a precedent of a vice presidential pick changing their residency to secure their state’s electoral vote. In the 2000 presidential election, former Secretary of Defense Dick Cheney changed his residency from Texas to Wyoming to be on the ticket with former President George W. Bush.
Tribe also says that there is a possibility that Rubio could still maintain his Senate seat even if he does change his Florida residency.
“Article I, Section 3 merely requires that a senator ‘when elected’ be ‘an Inhabitant of that State for which he shall be chosen,’ and Rubio was indeed an inhabitant of Florida when elected to his current term, his third, in November 2022,” Tribe said.
“Despite the constitutional anomaly of someone serving as a senator of a state that he no longer inhabits, if Rubio could convince people that he no longer is a Florida resident, then Trump could legally pick him.”
Due to his ties to Nevada, that state has been rumored as a possible residency for Rubio to select. The Florida senator spent time in Nevada as a child when his family lived there for several years between 1979 and 1985.
The Trump campaign is also making a play for the state, a crucial battleground that went for the former president in 2016 and President Joe Biden in 2020.
In June, while campaigning in Las Vegas, Trump called for eliminating taxes on workers’ tips, a crucial source of income for those working in Nevada’s tourism industry.
However, Rubio has remained mum on changing his residency to secure a spot on Trump’s presidential ticket. Following the first presidential debate, ABC News asked Rubio if he would change his residency.
“Nice try,” Rubio replied.
ABC’s Isabella Murray contributed to this report
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