As I was reading this answer, I realized that there's nothing in the Constitution to prevent a majority of Electors from voting for the same person for both President and Vice President.

The Twelfth Amendment says:

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, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each...

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed...

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed...

The only restriction here is that one of the two people each elector votes for must not be from their own state. There is nothing to say that people from other states can't vote for the same person as both President and VP, and it would only take one such vote to enable it to be mathematically possible.


Given all this, what would actually happen if that were the way the vote played out?

There have been Presidents without a VP before, but as far as I'm aware, there's no provision for the President to not also be the VP. Assuming the candidate doesn't immediately resign as VP, would we have the President as tie-breaker vote in the Senate? Would the President be able to appoint anyone he chose as VP? Would there be grounds for the Supreme Court to get involved?

up vote 6 down vote accepted

To begin with, the Constitution implicitly assumes in dozens of instances that the president and vice president are separate people:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Indeed, the primary purpose of the vice presidency to the ensure there is an acting president in case the president is incapacitated. Having the same man in both posts would defeat the purpose. But perhaps more importantly, if the president is impeached, the vice president would automatically become president according to the 25th Amendment.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

So if the same man could serve as president AND vice president, it would be effectively impossible to impeach him.

Additionally, the historical meaning of a 'vice' president is someone who acts "in place of" a president. The very term implies there's a separate person serving as president. So I think the same man serving as president and vice president would be unconstitutional.

But as to your question about what would happen if the electors selected the same man as president and vice president, I think it depends.

Scenario 1: The President Elect actually tries to claim both offices

I think this would lead to a serious constitutional crisis. The Supreme Court generally shuns resolving "political questions" where intervening would involve the Court too intimately in political matters. More to the point, they can only settle cases and controversies based on actual harm. Someone would have to prove that the Super President arrangement caused them material, judicable harm before the Supreme Court.

But keep in mind, a member of the Supreme Court has to swear in the vice president. So if all the justices declined to swear in the president as vice president, that'd be the end of it.

The more practical answer is that the Congress is required to certify the Electors' results. There is precedent for Congress refusing to accept and discarding certain votes, such as when Horace Greeley died after the 1872 election. The Senate would then have to choose between the two vice presidential candidates with the most remaining electoral votes.

Scenario 2: The President Elect declines to be a Super President

The president would be sworn in come January, and it would be treated like any other vacancy. The president would then be able to nominate a vice president (again, under the 25th Amendment), who would be have to confirmed by both houses of Congress. The only question would then be if the Congress decided to play along and certify his election as Vice President, or to throw it to the Senate to possibly select their own Vice President.

  • "Someone would have to prove that the Super President arrangement caused them material, judicable harm before the Supreme Court" - given the modern rules about the line of succession, I would imagine that a strong argument could be made to the SC that none of the downsides you listed above apply (you simply bump down all the "alternates" logic by one rung on the succession ladder (Speaker of the House). – user4012 Aug 20 '14 at 0:39
  • Also, "he president would then nominate a vice president" - IIRC that's correct but would benefit from a reference to actual rules of how VP vacancy is handled – user4012 Aug 20 '14 at 0:39
  • 1
    @DVK- Added a reference. Re: the judicable harm, arguably those down the line of succession have actually benefited since they are one less person removed from the presidency. I think someone with the best case would be a person harmed by a piece of legislation where the Super President cast the deciding vote in the Senate. I'm reminded in particular of the recent case where a business successfully challenged Obama's recess appointments when the NLRB ruled against them, arguing that the deciding votes should have never been there. – TenthJustice Aug 20 '14 at 3:11
  • 7
    "A member of the Supreme Court has to swear in the vice president": That isn't correct. The Constitution says nothing about who must administer oaths, and both presidents and vice presidents have often been sworn in by people other than Supreme Court justices. Wikipedia lists several, and here you can see Dick Cheney being sworn by House Speaker Dennis Hastert. – Nate Eldredge Aug 22 '14 at 1:22
  • 1
    He wouldn't be impossible to impeach. While processing an impeachment of the president the Chief Justice presides over the senate. – Joshua Jan 26 '17 at 3:02

The Electoral College could do it but it could be also be done by the House and/or Senate.

The Electoral College votes 270 Washington for President, 268 Adams for President. Washington wins the Presidency.

The Electoral College votes 268 Washington for Vice President, 268 Adman for Vice President, 2 Jefferson for Vice President. The Senate has to choose between Washington and Adams. I don't see why the Senate could not choose Washington.

Alternatively, the Electoral College could fail to elect a President and the House of Representatives elects the Vice-President or the Electoral College could fail to elect anyone and the House and Senate vote for the same person.

  • 1
    None of those 270 can vote Washington for Vice-President, so they vote for someone else. Why not? That's the central point of my question. What prevents them from casting both votes for the same person? – Bobson Apr 8 '16 at 0:43
  • 1
    @Bobson - I read this "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" too fast and thought that prevented that from happening. But on second reading, it only prevents Virginia electors from voting Washington/Washington. – emory Apr 8 '16 at 0:47

One thing being missed here. The House of Representatives and the Senate must certify the electoral votes. I find it highly unlikely they would certify that someone was elected to both offices in the same election.

  • 2
    That's actually addressed in the end of "Scenario 1" in @TenthJustice's answer. – Bobson Sep 14 '16 at 20:36

It's impossible for the electors to elect same person both president and vice-president. According to the Constitution, the electors have to choose a president and vice-president from different states. The same person can only be from one state (they have to choose one residence as a "primary" residence if they have multiple.)

It is possible that some electors will vote for someone for president, and others for vice president. However, it requires a majority of electors (270+) to win. Otherwise, Congress chooses. Hence, the electors can never elect someone both.

  • I covered that in the question. It’s constitutionally valid to vote for the same person for both positions as long as you’re not from their home state. Stupid, but valid. That makes it “easy” to set up the situation where one person gets the majority of both sets of votes. – Bobson May 1 at 5:43
  • Oh, you're right. I confused "a rule that they not be from the same state, for the strategic/political reasons of not giving up a state's electors" with "an actual law." Deleted my comment on the original post. – Jesse May 1 at 20:03

Your Answer

By clicking "Post Your Answer", you acknowledge that you have read our updated terms of service, privacy policy and cookie policy, and that your continued use of the website is subject to these policies.

Not the answer you're looking for? Browse other questions tagged or ask your own question.