If Bush wins, the 12th Amendment not only permits but explicitly requires that–under the present unprecedented circumstances–Joe Lieberman be chosen as vice president.

That’s right. It would be the Bush-Lieberman administration, not the Bush-Cheney administration. This would be a wise resolution of the controversy in any event: Bush and Lieberman are well suited to work as a team to overcome the partisan bitterness that could consume either a Bush-Cheney or a Gore-Lieberman administration.

The 12th Amendment, ratified in 1804, begins: "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 means that no Texas elector can vote for both George Bush and Richard Cheney because both are "inhabitants" of Texas. And in an election this close, that means that Bush or Cheney can be elected but not both.

It was this 12th Amendment language that prompted Cheney’s hasty change of voting registration to Wyoming. But the Constitution is not so easily circumvented. The purpose of the quoted language was to prevent one big state from using its votes in the Electoral College to capture both the presidency and the vice presidency. If, for example, Thomas Jefferson and James Madison of Virginia had run as a ticket, the 12th Amendment would have barred Virginia’s electors from voting for both. It is inconceivable that Madison could have avoided this result by moving to North Carolina a few months before the election.

It is also clear that as a matter of Texas law, Cheney’s Wyoming gambit cannot instantly end his legal status as a Texas "resident" (or inhabitant). Residency cannot be altered overnight as a matter of convenience. (Just ask the parent of any college student at a public university who seeks "in-state" tuition, or a taxpayer who’s tried to escape the income tax of a state where he or she has recently been a resident.)

Two objections to this logic help explain why you haven’t heard more about Cheney’s 12th Amendment problem. The first is that it is unlikely that the courts would order Texas’s electors not to vote for both Bush and Cheney (although one court has been asked to do so in a lawsuit). The answer to this objection is that constitutional provisions that are "nonjusticiable"–not enforceable by judges–are binding on electors no less than on members of Congress and the executive branch.

The second objection is that this provision is anachronistic, because few of us today care whether both president and vice president come from the same state. But it would ill-become "strict constructionists" to suggest that constitutional provisions deemed anachronistic should be ignored.

To be sure, it may be unrealistic to expect the 12th Amendment to make a difference in this impasse unless Bush and Cheney were to ask the Texas electors to honor it. But if Bush, Cheney and Gore got behind this idea, it would be unstoppable. Republican reluctance to accept Lieberman as vice president would be offset by the opportunity to move the Senate–with Lieberman resigning and being replaced by Connecticut’s Republican governor–from a 50-50 deadlock to a 51-49 Republican majority.

The Constitution also provides a way for a victorious Gore to make Bush his vice president. Step one would be for Lieberman to resign as vice president-elect in order to stay in the Senate and prevent Republican control; that would be worth quite a bit to a President Gore facing a hostile Republican House. Step two would be for Gore to use the 25th Amendment to nominate a new vice president, subject to confirmation by both House and Senate. Who could be confirmed amid the current partisan bitterness? George W. Bush. Unlikely? Gore and Bush may be at swords’ points now, but if they are the patriots we believe them to be, they could work it out.

Such a mixed party government would not be altogether new. More important, a Bush-Lieberman or Gore-Bush solution would embody a commitment to more teamwork and less partisan warfare.

Philip Bobbitt, a professor of constitutional law at the University of Texas, served in the Carter, Bush and Clinton administrations. Stuart Taylor Jr. is a National Journal columnist and Newsweek contributor.

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