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Vice-Presidential Ticket Splitting

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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12 Responses

  1. Howard Wasserman says:

    The Amars wrote a piece about this in the early ’90s, call (I believe) “President Quayle?”, written after polls in the 1988 race showed strong public preferences for Bush over Dukakis and Bentsen over Quayle.

  2. A.J. Sutter says:

    “But it’s worth thinking about”: please think some more. What would be the benefit of this?

    In the UK, a coalition is not formed without an agreement to cooperate in the legislature. No such mechanism exists in the scenario you posit — only at most conflicting “mandates,” to the extent losing an election constitutes a mandate. (For that matter, what would #2′s “mandate” be for in your scenario: to be VP or to be President?)

    People vote for candidates not just to express their preferences, but in the expectation that those elected will govern. Why will this improve government, rather than just creating more infighting?

  3. TJ says:

    We had precisely this kind of “divided government” in 1796. If you think that “one party [winning] the presidency and the other the vice-presidency” is a good idea, you can practically ensure that result always occurred by repealing the 12th amendment. I don’t think many people are agitating for that.

  4. Gerard Magliocca says:

    True TJ, but that was at a time when many people did not accept the legitimacy of political parties. Moreover, the pre-12th Amendment system made the presidential runner-up the VP. What I’m talking about would not do that.

    Besides, why shouldn’t you have the right to vote for VP independently? Do you always vote the party ticket down the line in elections? I sure don’t.

  5. TJ says:

    To follow up, I think the idea is terrible. First, it creates an obvious incentive for disgruntled fringe lunatics to assassinate the president. Second, a real-life instance of this “divided government” (and fringe lunatic assassination) gave us Reconstruction under Andrew Johnson. Third, there may be significant appointments clause and other constitutional problems with the vice president exercising significant powers, especially if the vice president is going to be uncooperative.

  6. Logan Roise says:

    I wouldn’t go as far as saying this is a horrible idea but I would say that I don’t see much point in it. Constitutionally, the VP only casts a tie breaking vote in the Senate and succeeding POTUS. So lets say we did vote seperately for VP and Palin was elected (Obama as POTUS)…My guess is Obama would just simply ignore her. Sure she could sit on the NSC but that doesn’t mean she has any sway. Her tie-breaking vote also wouldn’t matter because Obama could/would simply veto the legislation and then you would need to override with 2/3, thus by passing her.

    Though this is probably a better idea than repealing the 17th amendment.

  7. Gerard Magliocca says:

    Um . . . John Wilkes Booth wanted Johnson to die too, so I don’t think making him President was his motivation. You make some good points, but the other side of the coin is 1) how do you hold the VP accountable; and (2) what if folks want a free vote for VP? Besides, what about states that have separate elections for Governor and Lt. Gov? Is that a bad idea too?

  8. Josh Chafetz says:

    Ah, but Guiteau *did* want Arthur to be President in the intra-Republican battle between the Half-Breeds and the Stalwarts. (Cf. Guiteau’s famous, “I am a Stalwart of the Stalwarts… Arthur is President now!” line). Wouldn’t this problem be significantly exacerbated by VPs of different parties, not just different factions within a party?

  9. TJ says:

    Yes, I don’t mean that Booth is a perfect example, but I think the substantive incentive is there, and the historical record is pretty abysmal. I think it is a bad idea at the state level, too, for the same reason; but fringe lunatics are much less likely to target governors than presidents.

    I’m not sure I understand your question. Hold the VP accountable for what? The VP has no power to account for, and I think it is a good thing to keep it that way. And I am dubious that Congress can vest the VP with real power as a “co-president” precisely because the VP cannot be dismissed.

    The final question is what if people would like to vote directly for VP, much as people vote for ceremonial powerless presidents elsewhere. There is some value in the subjective satisfaction of a meaningless vote, but: (1) under no possible proposal do people directly vote for VP anyway–people vote for electors who each get two votes–so at most you can vote for an elector who promises to split the ticket; (2) this tiny subjective satisfaction of voting for a powerless figurehead is does not seem a sufficient benefit to outweigh the potential mischief.

  10. Gerard Magliocca says:

    Well, that is true (though I think it’s the only case like that.) Some might say that picking a bad VP under the current system is a kind of “anti-assassination” insurance in the way that you’re thinking about the problem.

    This puts a lot of weight on ascertaining the incentives of crazy people though.

  11. Josh Chafetz says:

    You’re assuming that assassins are necessarily crazy. Some clearly are, and I think our current system of succession makes it more likely that assassins will be crazy, because it is unlikely that there will be a rational reason for having a very strong preference for the VP over the President. But change the succession regime, and perhaps assassination becomes rational (which, I rush to add, does not necessarily mean good — I’m using “rational” in a purely instrumental sense here.)

    This is related to the point I make in Impeachment and Assassination, 95 Minn. L. Rev. (forthcoming 2010) about Booth. He made a mistaken judgment about Lincoln (he thought Lincoln was a tyrant), but his actions are quite rational and call on a long and highly respected tradition, IF you grant him his (mistaken) premise.

  12. Josh Chafetz says:

    (And, having spent a lot of time down the rabbit hole of the Copperhead press, I should add that Booth was hardly alone in his mistake. Epistemic closure is not a uniquely twenty-first century phenomenon …)