The New York Times recently focused on the potential vice presidential candidacy for Senator Marco Rubio, the latest in a long string of earned media Apprentice-style articles in outlets discussing the very public, very slow airing of trial balloons of various vice presidential candidacies from Mar-a-Lago. But with recent pieces there and elsewhere focusing on the legal aspects of his candidacy, I wanted to highlight the potential issue.

The Twelfth Amendment opens, “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.” This language is a carry-over from the original constitution. And it’s worth noting that it would only apply to Florida’s electors should Rubio and Donald Trump both be inhabitants of Florida. It has no effect on any other state. (And while Trump could quickly return his inhabitance to New York, there are probably reasons he longer wants to be deemed a citizen of that state.)

In Jones v. Bush in 2000, voters tried to challenge that Cheney was not a Wyoming inhabitant and that Texas electors could not vote for him. The electors appeared to concede that the candidate only needed to be an inhabitant of the state on December 18, 2000–that is, when the electors met to vote. (This year, that’s December 17, 2024.) That’s also, I think, the right way to read the Twelfth Amendment.

To be an inhabitant of the state requires some demonstration of intent to leave the past state. It’s not as clear a word as “resident,” and the Framers when discussing the word “inhabitant” elsewhere seem to suggest it’s less onerous than residency but requires something more than a “sojourner.” It would likely required bodily presence and an intention to make the new state his home. A quick reversal of home might suggest he has not established inhabitancy. Likewise, it usually takes several steps (including changing voter registration, selling or purchasing homes, changing driver’s license, and the like) for a true change in inhabitancy.

In Jones, the court both rejected that the voters could challenge Cheney’s inhabitancy at all (they lacked standing, because the injury they had was shared by millions and was not personal to them). But even if they could sue (arguing in the alternative to expedite a potential appeal and reduce the need for a remand), the court held that Cheney had taken sufficient steps beginning July 21, 2000 to establish his inhabitancy. (Cheney’s autobiography In My Time mentions that as soon as the real possibility emerged that he could be vice president, he began the steps to move. The Washington Post noted on July 22, 2000 that Cheney had changed his voter registration from Texas to Wyoming, a clear early signal that Cheney would be the nominee.)

It is very hard for anyone to be able to sue and challenge the electors’ votes before the fact, because the candidate could always establish inhabitancy before the electors vote. And after they vote, it is really a matter for Congress to determine. If Congress wanted to refuse to count votes under the Electoral Count Reform Act, I think it might do so on the ground that the votes were not “regularly given.” (No one objected or attempted to object in 2000 to Texas’s votes.) But it is not clear to me how Congress would do so–could they have discretion to refuse to count votes for Trump or Rubio, and pick and choose which objection? (In my judgment, the better option is to object to votes for the vice president if one believes both are inhabitants of the state state, simply as a matter of pragmatic concerns of minimizing disruption.)

Under this timing, it would be possible for a candidate to move after Election Day upon being an apparent winner. (One could move before and still serve in the Senate, but it’s a bit of a bad look.) That said, it gives only five or six weeks to truly change inhabitance, and any vestiges of remaining in Florida (e.g., failure to sell a home, which might suggest an intent to return) could be a basis for objection. But if one is about to become the vice president, perhaps one is prepared to sell all things and move to the District of Columbia.

One more note, and this isn’t about the Twelfth Amendment. Rubio was born in the United States to two non-citizen parents. This was the source of extensive litigation in 2016 (but less extensive than Ted Cruz’s candidacy) over whether he was a “natural born citizen.” The widespread consensus is that he is. But Trump’s attorneys and surrogates in other places have argued (in my view, wrongly) that Kamala Harris may not be eligible and that Nikki Haley is definitely not eligible. Like Rubio, they were born in the United States to non-citizen parents. Of course, it is not clear whether Trump’s internal apparatus will make an about face on these matters or just ignore them if it opts for someone they’ve long viewed as ineligible.