A Donald Trump-Marco Rubio ticket? Here are the obstacles

Could former President Donald Trump choose Florida Sen. Marco Rubio as his 2024 running mate? Rubio’s getting a lot of attention, along with other possible vice presidential picks.

Selecting Rubio would require some constitutional two-stepping.

Article II, Section I of the U.S. Constitution says that, when the Electoral College meets to determine the president, "the electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves."

This clause has generally been interpreted to mean that if the presidential and vice presidential candidate come from the same state, the electors from that state cannot vote for both. They could vote for the president, but not for the vice president.

Currently, both Trump and Rubio are Floridians. In 2019, Trump famously renounced his longtime New York residency in favor of residing at his Mar-a-Lago club in Palm Beach, Florida. And Rubio is serving his third term representing the Sunshine State.

Because Florida has 30 electoral votes, and because the election is expected to be close, a Trump-Rubio ticket would be riskier than a ticket with a non-Floridian.

What are those risks? Here are some questions and answers. (Rubio sidestepped the issue during a May 5 appearance on "Fox News Sunday"; his office did not answer an inquiry for this article.)

What happens if Trump chooses Rubio and both keep their Florida residency?

If Rubio doesn’t change his residency, Florida electors could not vote for both men. Assuming the electors all vote for Trump and not Rubio, and assuming Trump doesn’t win the presidency with at least 285 electoral votes, this would temporarily leave the vice presidency in limbo.

If no Trump-backing elector in Florida would choose the Democratic vice presidential nominee (presumably incumbent Vice President Kamala Harris), then no vice presidential candidate would receive an electoral college majority. 

That kicks the decision to the Senate, which can choose from the top two finishers; whoever got Florida’s electoral votes for vice president would finish no higher than third and would be ineligible.

Today, the Democrats hold a narrow edge in the Senate. However, the Senate that would choose the vice president prior to the Jan. 20, 2025, inauguration would include the new members elected in 2024. Because the Democrats face headwinds in keeping their majority, a Republican-majority Senate could end up deciding.

However, the choice wouldn’t be a slam dunk, Arizona State University political scientist Steve Smith said.

Deciding the issue, known as a point of order, can be debated — "and it can be filibustered," Smith said. So, even if the GOP has enough votes to reach a simple majority, it would still need additional Democratic votes to surpass the 60-vote supermajority hurdle to cut off debate, he said. 

The Senate could use a simple majority — rather than the usual 60-vote supermajority — to waive the need for a supermajority. This process, known as the "nuclear option," has been used before to allow for simple majority votes for nominations, including for the U.S. Supreme Court in 2017. But in a chamber as tradition-bound as the Senate, the nuclear option has been controversial and is never taken lightly.

Could Rubio resign from the Senate and move to another state?

This would be the cleanest way to resolve this vice presidential quandary. In 2000, Dick Cheney quit his Texas residency to run from Wyoming, which he had represented in the U.S. House, because his ticket mate, George W. Bush, was from Texas.

To do this, Rubio would also have to cede the Senate seat he would otherwise be entitled to hold until January 2029. And the Democrats would have a slightly larger margin in the Senate until the end of this year — all on the chance that Trump wins the presidency.

Reporting by veteran Florida political journalist Marc Caputo found state election law experts conflicted about what would happen to Rubio’s seat if he resigns. 

The normal deadline for federal candidates to declare to run for a vacated Rubio Senate seat has already passed. Although the state’s primary is Aug. 20, ballots must be sent to overseas absentee voters, including service members, beginning July 6. And to meet this deadline, election officials would need sufficient lead time to design and print the ballots. "Anything after June 21 becomes burdensome for us," Christina White, supervisor of elections in Miami-Dade County, told Caputo.

So, the window for initiating a 2024 election to succeed Rubio is fast closing. 

And if it’s too late for the 2024 election, Republican Gov. Ron DeSantis — who challenged Trump in the presidential primary — might be able to choose a temporary replacement, likely to serve through January 2027.

Can Rubio relinquish his Florida residency?

If Rubio decided to move out of state, he’d first have to extricate himself from his Florida residency. This seems doable, experts say, though it’s odd; politicians usually want to establish, not cede, residency.

Under Florida law, residency rules vary depending on the purpose, such as qualifying for in-state tuition or a homestead tax exemption. Aubrey Jewett, a University of Central Florida political scientist, said residency questions arise frequently for lower-level offices. 

Jennifer S. Blohm, an election lawyer in Florida with the firm Meyer, Blohm and Powell, P.A., said that to determine residency status, courts usually consider driver’s license registration, voting registration and whether the person has a habitable home in the jurisdiction. 

Blohm said Rubio could probably maintain a house in Florida that he considers a vacation home while taking up residence in a new state.

Whether Rubio can establish a residency in another state may be trickier, University of Virginia law professor John Harrison said.

Harrison said residency requirements vary by state but often involve the legal concept of "domicile." This is established by people’s physical presence in a jurisdiction, combined with their intent to reside in that jurisdiction indefinitely and not elsewhere.

In Rubio’s case, "even if he were to buy a house somewhere else, he might not have the requisite intent" under that particular state’s law to become a resident, Harrison said. "Cheney could plausibly say that he had established domicile in Wyoming because he moved there from Texas and had the requisite intent to live in Wyoming indefinitely" based on his previous congressional service.

But Rubio "doesn’t have a connection with any state other than Florida that would suggest that he could have an intent to remain in that other state indefinitely." States often also mandate minimum periods people should be in the state to qualify. 

Let’s say Rubio manages to establish residency outside of Florida. Could he still represent Florida in the Senate?

This should be straightforward, experts say. 

The Constitution requires a senator to be an inhabitant of the state "when elected," and that was certainly true in 2022, when Rubio won his current term.

Also, when the Supreme Court in 1995 struck down state laws establishing term limits for U.S. House members, its ruling said a state "can’t add to the qualifications for federal office" that already exist in federal law, Harrison said. 

So, Florida can’t pass a law to force its senators to live in Florida.

Could Rubio remain in Florida to see if Trump wins, then change residency before the Electoral College votes?

A close reading of the Constitution makes this theoretically possible. The clause that penalizes a presidential and vice presidential candidate who come from the same state refers to ballot casting by electors, not the general public. So, Rubio might be able to reduce his downside risk by residing in Florida until the election is called, then shift his residency if Trump wins, as long as it’s before electors cast their ballots Dec. 17.

Besides being logistically challenging for Rubio and his family, this residency switching could inspire litigation.

"There is still an argument made about the purpose, or spirit, of the constitutional provision in play, which in this case is plainly to keep two people from the same state serving as president and vice-president during the same term," University of North Carolina law professor Michael Gerhardt said.

Gerhardt added that Congress has sometimes found its way around plain constitutional language by, for instance, making an exception for elected members who fall short of the constitutional age requirement.

"It is not unthinkable that Congress or the Court could devise an exception for this along the same lines," he said.

Why is all the burden on Rubio? Couldn’t Trump do something?

Trump could fairly easily move his residency to one of his other properties. New York seems unlikely, since his earlier move to Florida offended New Yorkers and because he’s faced both civil and criminal prosecution there. But he owns the Trump National Golf Club in Bedminster, New Jersey.

Perhaps Trump could even just stay in one of his hotels. When he was running for president in 1988, George H.W. Bush called a suite at the Houstonian hotel his residence. 

"One part of me thinks given all of these complications, Trump might not choose Rubio," Jewett said. "But on the other hand, time after time for eight years now, Trump has done novel things that often cause big legal messes. So that has not often stopped him before."