Recently, news about a startup campaign to elect the vice president separately from electing the president has popped up. As the vice.run movement describes itself, its goal is to “reinstate the vice presidency as a democratically elected position. Vice.run’s goal is to create a vice presidential ballot line in the 2020 election in all 50 states.”
It sounds like a fascinating idea. But under any scrutiny, it just won’t work. That’s because the Electoral College doesn’t function this way.
To begin, it’s entirely correct to say that states don’t have to list a particular president-vice president combination unless they seek ballot access for that combination, and it’s possible to think about alternative arrangements to how we typically look at elections. A couple of historic examples come to mind. In 1836, the Virginia Democratic Party despised Martin Van Buren’s running mate Richard Mentor Johnson. While most states’ electors ultimately voted for Van Buren and Johnson, Virginia’s electors voted for Van Buren and William Smith. That prevented Johnson from receiving a majority of electoral votes, so the election was sent to the Senate, which elected Johnson over runner-up Whig Francis Granger.
In the same election, Whigs chose not to field a single candidate, but fielded multiple candidates that they hoped each would receive sufficient support over the Democratic candidate, prevent the Democratic candidate from securing a majority of electors, and send the race to the House of Representatives to choose among the top three vote-getters, potentially yielding a Whig candidate.
All this is to say we’ve seen some interesting and creative attempts to use the Electoral College framework to achieve particular ends. But what about a separate vice presidential candidate?
The logic (although there isn’t much law) spelled out on the vice.run site goes as follows: a vice presidential candidate could be a separate line on the ballot. The people could then choose to vote for a particular presidential candidate and an entirely different vice presidential candidate. Particularly attractive independent vice presidential candidates may force presidential candidates to choose them as their running mates.
All interesting ideas. But utterly unworkable due to the Electoral College.
Each state receives presidential electors equal to the number of senators and representatives they receive—say, Vermont receives three. On Election Day, the first Tuesday after the first Monday in November, when voters cast a vote for Clinton-Kaine or Trump-Pence, they are actually casting a vote for three electors pledged to support Clinton-Kaine or Trump-Pence. (“Pledged” I use very loosely—some states have formal pledges, some are legally binding, others are mere informalities or general expectations.)
Then, on the first Monday after the second Wednesday in December, Vermont’s three presidential electors meet in the state, along with electors from the other states in their respective states. The electors cast two votes: one for president, and on a distinct ballot, one for vice president. (The headline of my post is a bit misleading—in fact, presidential electors are required to vote for a separate president and vice president. This post is about the people voting via ballot separately.)
Suppose now there is an election with a separate line item for president and vice president. How would we choose the electors? We simply couldn’t. We can’t pick three electors for president and another three electors for vice president; that would require a state to choose six electors, which it couldn’t do. So we’d need the same electors for president and vice president—which means we couldn’t have separate lines unless the electors were the same, or aligned with one another, which would seem to defeat the purpose of having separate lines.
Instead, the only feasible opportunity to have presidential and vice presidential candidates elected separately would look as follows: the state legislature chooses three electors; it designates that those electors must be bound to vote in accordance with the popular vote of a presidential candidate and a vice presidential candidate; then, those electors would have to vote for whichever presidential and vice presidential candidate were selected.
It’s not clear that this is permissible. Federal law requires that the electors be appointed on the first Tuesday after the first Monday in November. It’s not a straw poll to bind existing electors. So it’s unclear to me that a state could appoint its electors before the election. Additionally, if Election Day is about the appointment of electors, then there has to be a fixed number equal to the state’s total, which means you need a president-vice president slate of electors, not independent lines.
There are other confusing ways to think through this problem, like assuming there’s just one slate of electors representing all the names on the ballot, but I’m not sure these are feasible, either. And I’m also assuming the state can compel the electors to vote for the candidate they’re pledged to support—something I think is right, but certainly not uncontested. (Of course, faithless electors are a common problem in any Electoral College reform scenario, so I don’t dwell on that.) It also increases the likelihood that voters in a state choose a president and a vice president from their own state, if there are pluralities or tradeoffs in voting, which is impermissible under the Constitution—electors must vote for at least one candidate who is not an inhabitant of their state, and a president-vice president slate usually avoids this.
Unless I’m missing something—correct me if I am!—this scheme simply can’t work absent the legislature wholesale taking over the choosing of electors and having a straw poll of the people sometime before Election Day. The Electoral College anticipates one set of electors chosen on Election Day. That set of electors can exist however one sees fit, of course. But if voters have to make a choice of a president and a vice president on separate lines, there’s no feasible way to pick one common slate of electors like the Constitution demands.