Vice.run did a rigorous study of the legal process for democratically electing the vice president and of public attitudes toward the idea. We describe these findings below. You can also download our legal white paper and opinion research report.

A gap in American democracy

American democracy rests on the premise that the people select their leaders through election. Americans choose our congress members, our senators and our president. But the vice president—the person who is next in line to the most important position in the world—never faces voters directly.

More than that, the current process of vice presidential nomination further limits the role that the American people play in choosing the person who is first-in-line for the presidency. This process might have been less problematic when the vice presidency was considered to not even be worth a bucket of warm spit, as Vice President John Nance Garner is credited as saying.

Today, however, the vice president’s power and influence has grown to the point that the nation must give serious consideration to ensuring the representative ideal pulses within the office of the person who stands just one heartbeat away from the presidency.

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The current approach to choosing the vice president

Both the Democratic and Republican parties select their vice presidential nominees at their national conventions in the summer preceding the presidential election. Both parties bestow their conventions’ delegates with the ultimate authority for selecting their respective vice presidential nominees.

In truth, however, those delegate votes are simply pro forma affirmations of the person selected by the presidential nominee. In other words, the Democratic and Republican presidential nominees are selecting who will be the next vice president of the United States.

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Legal framework for electing the vice president

As with the president, the Electoral College elects the vice president. As conceived by the Constitution’s drafters, the vice president would be the runner-up in the Electoral College. For example, Thomas Jefferson became John Adams’s vice president when he finished second in the 1796 Electoral College vote. Thus, for four years, John Adams’s vice president was a member of the opposition, who sought to undermine and discredit the federalist presidency.

In 1800, Jefferson pursued the presidency as part of the emerging Democratic Party, but this time ran “with” Aaron Burr, who it was understood would be Jefferson’s vice president. At the time, however, the Constitution provided each Elector with two votes and each Democratic Party Elector voted once for Jefferson and once for Burr. The Electoral College tie and resulting chaos sparked the Twelfth Amendment, which grants each Elector one vote for president and one vote for vice president. That system remains in place today.

Therefore, to understand the general legal framework surrounding vice presidential elections, it is necessary to look to the law surrounding the Electoral College, which is ultimately responsible for selecting the vice president. However, a review of that system reveals the main source of law surrounding the Electoral College comes from states, which decide the process for selecting Electors and provide the rules for whom the Electors may vote.

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Electoral College: Constitution & federal law

The Constitution provides only broad rules governing the Electoral College. Under Article II:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Twelfth Amendment states, in part:

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, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate…

Like the Constitution, federal law is also only broad. In fact, only a few provisions in federal law are relevant, including the timing and number of electors and how and when they vote.

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Electoral College: state law

States possess broad authority to prescribe the rules related to the Electoral College. Every state has laws that allow political parties to select a slate of electors. It appears that most, if not all, states also provide for unaffiliated electors.

For example, Colorado allows an unaffiliated candidate for president or vice president to file a list of electors. A review of all fifty states’ (plus the District of Columbia’s) laws on this subject indicates that every state provides some path for unaffiliated candidates to designate electors to vote for vice president.

In addition, an unaffiliated, independent candidate for vice president could receive votes from the Electors chosen by the political party process. For example, a Republican Elector in 2016 could have case a presidential electoral vote for Donald Trump while casting a vice presidential electoral college vote for someone other than Mike Pence. Only a handful of states impose requirements that an elector vote for the state’s popular vote winners. Instead, the states rely on the fact that each party selects its own slate of electors and so the parties choose loyalists and party insiders for the role. That does make it difficult, but not impossible, to get an Elector to vote against the party’s nominee.

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Getting on the ballot

State rules vary about how an unaffiliated candidate gains a spot on the ballot. Most states require an unaffiliated candidate to collect signatures from a specified percentage of voters, although some require only that the individual pay a fee.

While an independent candidacy for vice president will cause confusion in many secretaries of state offices because untested nature of the concept, a review of state laws surrounding unaffiliated candidacies provides clear markers for how to secure a spot on the ballot as a vice presidential nominee. Nearly every state makes specific provisions for unaffiliated candidates for vice president and there exists significant room to maneuver within the existing statutory framework.

For example, Colorado allows an unaffiliated candidate to gain a spot on the ballot by paying a $1,000 fee. And the state law makes specific independent reference to vice presidential candidates. It provides:

No later than 3 p.m. on the ninetieth day before the general election, a person who desires to be an unaffiliated candidate for the office of president or vice president of the United States shall submit to the secretary of state either a notarized candidate’s statement of intent together with a nonrefundable filing fee of one thousand dollars or a petition for nomination pursuant to the provisions of section 1-4-802 and shall include either on the petition or with the filing fee the names of registered electors who are thus nominated as presidential electors.12

Thus, this language provides for someone running for vice president without being tied to a particular presidential candidate.

That is not to say that practical challenges for an unaffiliated, independent candidate do not exist. Such a campaign will require states to re-conceptualize their ballots so that people can vote separately for president and vice president.

Redesigning the ballot is not hard, however, especially if the process begins early enough, which it must because the signature-collecting deadlines are set, in part, to allow sufficient time to design and print the ballots. Moreover, that an independent vice presidential run would require election officials to adjust their current systems to comply with the state’s election laws demonstrates that such an independent vice presidential campaign is well grounded legally.

Put another way, while changes must be made by elections officials, the fact remains that the law allows for an unaffiliated, independent vice presidential campaign.

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Legal conclusion

The Constitution, federal law, and state law all allow for an independent, unaffiliated run for the vice presidency. Moreover, Electors may vote for any candidate for vice president that the Electors deem fit. The practical reality, however, is that because states select Electors through partisan processes, the most likely way that an unaffiliated candidate for vice president can secure sufficient support within the Electoral College would be by gaining a spot on the state ballot and receiving enough votes to have that individual’s slate of Electors chosen for the vice presidential vote.

Regardless, though, the critical legal conclusion remains the same: nothing in the Constitution or federal or state law prevents such an effort. Any effort to stop an independent, unaffiliated candidate from seeking a spot on a state’s November ballot would likely fail.

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Most Americans support a new approach to choosing VP

By a 53% to 47% margin, Americans believe we should consider a new approach which allows the public to elect a vice president separate from the president. It’s a startling result when you consider more than 200 years of cultural familiarity with the status quo in which the presidential nominee of each party chooses his or her running mate. The result reflects Americans’ deep hunger for change, a finding consistent with high levels of pessimism: 63% of Americans think the country is on the wrong track.

Americans broadly agree the vice presidency is underutilized

Even when presented with positive arguments for keeping the status quo on how we choose the vice president, the public prefers a new approach. 43% of Americans prefer the current model in which the VP plays an important behind-the-scenes role as counselor to the president; offers a voice on public policy; and gets on-the-job training should something happen to the president, the public still prefers a new approach.

But 57% of Americans agree the vice presidency is underutilized and that we would be better served by a VP who focuses on policy and getting things done by working across parties.  

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Overwhelming preference for a VP with his or her own agenda

Americans are used to a dominant president model of executive branch leadership in which the vice president operates – often behind the scenes – to advance the president’s agenda. Which is what makes our finding on the VP’s role remarkable: by a 78% to 22% margin, Americans prefer a partnership model between the president and vice president, with the vice president focuses on making government more effective and getting things done.

Vice president uniquely suited to act as unifier-in-chief

Americans agree that a politically divided America is a weaker America – and that the vice president is uniquely suited to bring the country together. By a wide margin of 73% to 27% Americans prefer a VP who acts as unifier-in-chief to one who plays a traditional role in support of the president.

Opinion research conclusion

National opinion research argues for a rethink on the vice presidency. We’re in a long-running cycle of pessimism about the direction of the country, and it’s time for significant change. Simply put, most Americans want to directly elect the vice president. Vice.run has a strong foundation from which to make its case that a vice president who has democratic support can help move the country forward.

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