Should Americans Continue to Elect Presidents and Vice Presidents on a Single Ticket - Preventing a McCain/Biden or Obama/Palin Win?

One question many people are asking, after this week's election, is whether Republican Vice-Presidential nominee Governor Sarah Palin helped or hurt Senator John McCain in his quest to become President. She famously gave him a major post-convention boost. Yet there is also substantial evidence to suggest that a majority of Americans thought her unqualified to assume the Presidency (the key function of a Vice President in the event of a Presidential tragedy). And surely, whether or not Governor Palin was in fact as unfit for the White House as her interviews with Katie Couric suggested, it seems quite likely that in a head-to-head national election against Senator Joe Biden, Palin would have lost quite soundly.

And yet, until this Tuesday, Governor Palin stood a decent chance of being part of a winning Republican presidential ticket, in line to lead the free world should something happen to disable John McCain. And that reality raises an important question: Why are voters denied the chance to vote for a President of one party and a Vice President of the other? Why, in this election, did we rule out a McCain/Biden (or Obama/Palin) win? After all, earlier this spring, Joe Biden made an offhand comment that he could envision serving as McCain's Vice President.

Vote-Splitting Between the Parties Is Otherwise Common - So Why Not In This Context?

Consider, by comparison, that voters often split their votes between the Democratic and Republican parties in other ways. Sometimes (as Senator McCain argued) it makes sense to vote for a President of one party and a House member or Senator of the other. Sometimes, voters split their tickets between federal officials of one party and state officials of the other. Indeed, in many states, voters are free to vote for a Governor of one party and a Lieutenant Governor (who becomes Governor if and when the Governor is unable to serve) of another.

Why, then, couldn't voters support a McCain/Biden outcome? Somewhat surprisingly, nothing in the federal Constitution or federal election law requires that voters in each state choose between internally-unified Republican and Democratic tickets. And in early American history, we had Presidents and Vice-Presidents of opposing parties. In 1797, Thomas Jefferson served as John Adams' veep, even though the two men - bitter rivals - represented and headed opposing parties. Some early Americans thought that having a "split" executive promoted checks and balances and was something to be embraced, not lamented. As Akhil Amar and I explained in a Virginia Law Review article, when the Twelfth Amendment was adopted in 1804, it made it easier for political parties (a formidable reality by the mid-1790s, even though their existence at the constitutional founding was neither guaranteed nor prohibited) to elect an aligned President and Vice President, but nothing in the Amendment requires states to tie voters' hands the way that is currently done everywhere. Instead, over the last two centuries, with the increased strength of the national political party apparatuses, each state has simply chosen to structure its presidential election ballot so as to require voters to pick between opposing slates - rather than allowing voters to choose separately for President and Vice Presidential candidates. Some decisions by states as to how to structure the mechanics of federal elections can be explained easily by the desire each state has to maximize its own clout. For example, (almost) every state's decision to award its electoral college votes on a "winner take all," rather than proportional, basis is explicable by reference to each state's desire to reward the Presidential candidate who takes that state's concerns and issues most seriously. But the decision to bind voters to executive party tickets cannot so easily be explained by rational state selfishness. Any or all states could, if they wanted to, begin untying the voters' choices in this regard, without causing any obvious harm to the states that so decide.

Should Voters' Hands Be Tied Simply Because Many Would Prefer a Unified Ticket?

Some might argue that a state should bind its voters' hands here because many voters in the state would prefer a unified Presidential ticket of either party, rather than a split ticket. But the same might be true of ticket-splitting between the Presidency and Congress; a small number of voters can effectively send a split message from a state even if a majority of voters would prefer a unified message in either direction. And, of course, a state can, if it wants, structure its ballot so that voters' second-choice preferences (for example, "I'd prefer a straight Democratic Presidential ticket but I would rather have a unified Republican ticket than a President of one party and a Vice President of the other.") are given effect. Of course, even if voters were given the option of executive ticket-splitting, they might not invoke that option lightly; there might be strong policy reasons for voters to generally prefer having a President and Vice President of the same political party. For instance, a general preference in favor of policy consistency in the event of a Presidential vacancy and a desire not to encourage the incentive for political assassination might counsel in favor of a unified Executive branch. But those policy reasons could be overcome in an unusual year with unusual Vice Presidential candidates. Just twenty years ago, 1988 - when Senators Dan Quayle and Lloyd Bentsen were the Vice Presidential competitors - might have been such a time. And this year, too, as I've suggested above, might have been that kind of unusual year.

In Other Areas, We Let Voters Choose; Why Not in This One?

Moreover, our general American preference for letting voters - rather than government - weigh competing policies and personalities would seem to make the current vote-tying system worthy, at least, of reconsideration.

Importantly, in the end, if voters had the power to split their executive votes, they might never need to exercise it. If states didn't bind voters to party tickets, then Senator McCain could, as a practical matter, never have chosen the untested Governor Palin as his running mate; he would have anticipated that the Palin choice, rather than enhancing his ticket, would trigger a possible McCain/Biden win instead, teeing up Biden, a Democrat, for a possible future presidential run. Unbinding voters, then, might not change which party wins the White House, but it might instead improve the quality of Vice Presidential picks, by requiring veeps to fight for some independent electoral credibility and deterring presidential candidates from choosing a running mate who may appeal to a key subset of voters, but who will not be popular overall.

In sum, just as we consider changing the so-called electoral college after each Presidential election, so too we should give some thought to the way we pick our number twos.

Vikram David Amar is the Associate Dean for Academic Affairs and a Professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.