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Forget Florida - Texas' 32 Electors May Be Unable to Vote for Bush and Cheney
by Lawrence A. Caplan

This past July, after having conducted an exhaustive search for the perfect Vice-Presidential candidate for George W. Bush, Dick Cheney of Texas (and every so often Wyoming) was surprised to find that Mr. Bush had decided that the best man for the job was actually the man tasked to find the best man.

Advised that he was on the very short list for the VP slot, Cheney stealthily traveled up to Jackson Hole, Wyoming, where he registered to vote in the state for the first time in many years. The primary purpose of the trip was to avoid, or so his crack team of Republican lawyers assumed, the potential trap of the 12th Amendment to the U.S. Constitution, which prohibits state electors from voting for both a president and vice-president who are "inhabitants" of the same state as those electors.

Once the ministerial task of obtaining his Wyoming voter registration card had been completed, Cheney headed back to Dallas to be introduced as George W. Bush's choice to join him on the GOP ticket. And except for a few scattered articles by academicians and constitutional lawyers, the matter of the potential "12th Amendment trap" lay dormant, until now.

This past Monday, a lawsuit was filed in the U.S. District Court for the Southern District of Florida, which alleges that, despite Mr. Cheney's Wyoming voter registration card, he is still a legal resident of Texas, where he has lived and worked for the past six years. The immediate reaction of the Cheney camp was that the lawsuit was frivolous and that everyone knows that Cheney has owned property in Jackson Hole since 1993. While these may be some of the facts, the actual law on the subject may, unfortunately for Mr. Cheney, get in the way.

As of November 7th, the date of our recent presidential election, about the only thing that Cheney could do in the state of Wyoming was vote. Under Wyoming state law, Cheney cannot run for statewide office. Nor can Cheney, an avid sportsman, obtain a fishing and hunting license until next summer. . Perhaps most damaging to the case that Cheney is now a Wyoming resident is a nasty little Wyoming state residency statute that no person can claim status as a "resident of Wyoming" if that person has availed themselves of the statutory benefits of residency in any other state during the prior year. For Cheney, that statute is an awfully tough one to finesse, because he and his wife continued to hold a state homestead exemption this year on their $1.3 Million home in Highland Park, a very upscale suburb of Dallas.

But just for the sake of academic argument, let's say that even though Cheney continues to own and reside in his Highland Park mansion, even though he still maintains a Dallas mailing address, and even though he has not taken up any form of meaningful employment in the state of Wyoming, and has actually only been seen there to vote and perhaps catch a few fish (using someone else's license of course), let's still give him the benefit of the doubt and call him a "resident." That leaves Cheney with only more hurdle to jump, because the 12th Amendment doesn't merely prevent Electors from voting for two candidates who "reside" in the same state, it requires that one of the two must be an "inhabitant" of another state.

This is where it gets really dicey for Dick Cheney. All applicable state and federal case law indicate that "inhabitancy" is a significantly higher standard than "residency". The former implies a more fixed and permanent abode than the latter, and imparts privileges and duties to which a mere resident would not be subject. So if Dick Cheney ends up winning the election, is he planning to serve as Vice-President from his vacation home in Jackson Hole? And should he lose, is he planning to put down Wyoming roots and become the local Jackson Hole rep for Halliburton? And here's the wildest irony in the whole affair. Just guess which two of the nine Justices of the U.S. Supreme Court have come down the strongest on the side of the legitimacy of state residency statutes - none other than Justices Rehnquist and Thomas!

So why is all this ado over whether Dick Cheney is really a Texan or a Wyomingite so important? Simply ask Tim Russert to pull out his "magic slate" once more and subtract Texas' thirty-two electoral votes from the GOP side, then do the math. Lo and behold, all that nonsense in Florida over their measly 25 electoral votes becomes blessedly moot.

And even more importantly, if we uphold the 12th Amendment, we will reaffirm that our beloved Constitution, that magical pamphlet of enduring law, which has been plagiarized by infant democracies around the world, is not a 211 year old piece of faded parchment whose words are nothing more than mere legal technicalities to be cleverly finessed, if and when the need arises.

Lawrence A. Caplan © 2000