by Washington Post
May 29, 2019
Rumors swirled this spring that Joe Biden considered naming a running mate at the start of his campaign. To his supporters, the move was vintage Biden: a bold step toward transparency in an opaque process. To Biden critics, the move felt like a stunt.
Both sides miss a critical truth: Biden has no constitutional claim to pick the vice president. No candidate does. That right belongs to the American people. The 12th Amendment gives the states and, ultimately, “We the People” the right to choose the vice president just as we do the president, outlining a process to elect the two positions through “distinct ballots” and “distinct lists.” The electoral college still votes separately for president and vice president, but, over time, voters have lost that power to the political parties and the presidential nominees.
How was the vice presidency stolen by the parties? It’s all about the ballot.
The ballot as we know it today is the secret ballot, which appeared in the 1890s and was called the Australian ballot in a nod to its provenance. Before then, we had the “party ballot”: brochures distributed by parties to voters entering polling places. Party-minded voters would use the ballot as a guide, handwriting their votes on paper and dropping the paper into a box. While some voters did vote along those straight-party lines, anyone (as long as they were white and male) was free to run for president or vice president, and individuals could vote for any elector or combination of electors. The parties had influence but didn’t have control of who could run or for whom you could vote in the ways they do today.
Even after the secret ballot was introduced for presidential elections, Americans voted for electors, not presidential and vice-presidential candidates. Not until the 20th century would ballots reflect candidates as shorthand for a slate of party electors. It was this step that put presidential an
d vice-presidential candidates together on the ballot. Today, this leaves the vice presidency as the only office for which we have a right to elect but an inability to actually vote.
That’s why, in 2016, voters had only one box to check for any party ticket, be that Trump-Pence, Clinton-Kaine or third-party tickets. While this undemocratic tradition may have mattered little in an era in which the vice presidency played a ceremonial role, the role of the vice president has taken on greater importance and impact today.
Look no further than Vice President Pence’s record. He has cast 13 tie-breaking votes, more than any vice president since 1841. Important and divisive issues have fallen to Pence, including opening a debate to overturn the Affordable Care Act, overturning a rule to protect state funding for Planned Parenthood and overturning consumer financial protections. He is the first vice president to confirm a Cabinet nomination — when Betsy DeVos’s nomination for secretary of education hung at 50-50. The role of the vice presidency matters in times of divided government. Voters deserve a say in choosing their vice president when he or she determines the policies that define our lives.
Turning the vice presidency back over to the people will make our government work more effectively. The Constitution gives the vice president the opportunity to do two things: deliver a solution in the Senate when it is evenly divided on legislative matters, and use his or her influence to build bridges between the executive and legislative branches. These powers lose their constitutional meaning when the vice president is just another faux presidential appointee, beholden to the White House for any semblance of relevancy or power. It will always be in the self-interest of the parties and the presidential nominees to control this office. But it isn’t their right. It is ours.
If we infuse the vice presidency with the will of the people, then everything changes. All of a sudden, the vice president has a democratic mandate to fulfill the office’s constitutional requirements.
Imagine an independently elected vice president acting as a domestic diplomat, shuttling between the White House and Capitol Hill to head off a shutdown. Imagine a vice president using the tie-breaking vote as a platform to negotiate legislation that advances the nation’s collective interest
s, instead of serving as a presidential proxy. These roles may be hard to imagine if Pence is your model, but not if you carefully read the Constitution. The vice president, constitutionally, does not serve at the president’s behest; this is why no matter what Pence does or doesn’t do, President Trump cannot fire him from the office.
Fixing the hijacked electoral process wouldn’t mean going back to the troublesome process that the 12th Amendment to the Constitution fixed. Initially, the candidate with the second-most electoral votes for president would become vice president. But after the acrimonious tie between Thomas Jefferson and Aaron Burr, the 12th Amendment separated the office of president and vice president and outlined distinct and separate votes and electoral ballots for each office. This gave the states, and thus the people, the right to choose the vice president. This would not be a return to how John Adams secured the office before the 12th Amendment (as the runner-up), but rather to how John C. Calhoun sought and won the office of vice president directly, after the 12th
Fortunately, every state board of elections already has a defined process for ballot access. Most states require a certain number of signatures from registered voters. If you secure enough signatures, you can engage the state to create that ballot line in time for November 2020, allowing us to
vote for president and, separately, for vice president.
Reclaiming our democratic rights and electoral process in this way does risk the possibility of a split ticket. However, the chances of a plurality of voters splitting their votes in any state, then getting that same outcome across a plurality of states, all splitting their votes to secure 270 or more electoral college votes, is improbable.
But what this would do is restore the office as a check and balance on executive and legislative power in divided times, as it is intended, by making the vice president directly responsible to the American people instead of solely to the president.
Reviving the 12th Amendment creates the opportunity for a “domestic diplomat.” Vice-presidential candidates would campaign directly for the job, and voters would vet their policies and platform. The vice president would have a mandate to work with the president and Congress to be a bridge and foster more effective, bipartisan governing. Isn’t that a far preferable process to the backroom, partisan and, at times, haphazard running-mate selection we see today?
Partisan tradition isn’t the same as constitutional law. Choosing the vice president is our constitutional right, regardless of whether you agree with changing our modern tradition of the office. To resist this effort is to impinge on each state’s right to give its citizens a democratic say. Yes, this change could bring about some new problems: the possibility of presidents and vice president not getting along (though that happens now, too), how to merge platforms and ideas, and even more candidates each election cycle. But you can use your right to vote to support candidates who account well for those or other concerns.
Some may still argue not to mess with tradition, to leave well enough alone. But few appreciate how dramatically this office has already evolved — from parties selecting the running mate, to nominees selecting the running mate, to Walter Mondale reimagining the role in its entirety and giving us a completely new model of the office as the presidential adviser and fixer. It has evolved before, and it can evolve yet again.
Electoral reform is in the air, most notably the call to abolish the electoral college. This reform is a practical impossibility, requiring a constitutional amendment, with two-thirds-majority support in the House and the Senate and three-quarters of the states to ratify. But electing the vice president is already our constitutional right. It’s a solution hiding in plain sight, and all it requires is fixing the ballot by working with each state to meet ballot-access thresholds. The organization I co-founded, Vice.Run, is a 50-state initiative to secure independent ballot lines for all the vice-presidential candidates in the 2020 election. Our goal is to restore balance in our divided government and put the power back in the hands of the American people.
Former New York governor Al Smith once said, “All the ills of democracy can be cured by more democracy.” The time has come for voters to reclaim our constitutional right to democratically elect the vice president, a role uniquely suited to help address this moment of divided government and partisan crisis.