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Honestly I think their biggest sin was writing in the passive voice. The amendment text is rather unclear as to who is empowered to keep such a person from becoming elected by the electoral college. To be fair, it's a bit of a problem with the qualifications listed in the original text too: SCOTUS had to weigh in on whether each of the states got to decide that independently (apparently not, at least for those details). It's unclear what is supposed to happen if some state decides to put him on the top of the ballot (I suspect SCOTUS would weigh in, but I don't know what they'd decide), the voters choose him, and the electoral college convenes to elect him.
This would all be much clearer if it included something like the 18th's "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." And if such legislation had been drafted and passed, I suppose. Then we'd get an answer to "which birth certificate forms can [state A] expect to certify that a candidate was born a citizen in [state B]?" (or even the John McCain case) and similar seemingly-trivial-but-devil-in-the-details questions like "Are you sure this is the same Donald J. Trump born in 1946 that was president previously?".
The writers of the Twelfth Amendment are also to blame; they include at the end "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States", but that's all they say about ineligibility. Nothing about what happens if the electors choose an ineligible candidate. The original presidential election clause also shares this flaw.
Answered much later by the 20th Amendment: "If the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified."
Thanks, I hadn't thought to check that one. So it seems that if an ineligible President is selected, he does not take office and (if his VP also is ineligible) presidential succession law is triggered.
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I mean, literally by definition, the electors cannot choose an ineligible candidate: ineligible means “not able to be chosen”
If you’re asking “What happens if the electors do the thing they are specifically prohibited from doing?”, I don’t really know what to tell you. For starters, the electors would be in violation of the supreme law of the land and thus should be held criminally liable and prosecuted accordingly; but would they be? Big picture, the whole point of the Constitution is to explicitly lay down the limits of the federal government’s powers, including, in this case, the powers of the electors—but at the end of the day, the Constitution is only as good as the people’s collective agreement to abide by it.
Asking the Constitution itself to contain answers to questions of the form “What happens when people ignore the Constitution in [specific way]?” is a bit like asking a board game rule book to include rules on what happens when the players ignore the rules: if you’re ignoring the rules, then you’re simply not playing the game, and if you’re not playing the game, why would you even care what the rule book has to say?
Yes, that's the etymology. But clearly such a thing could happen; nothing keeps an elector from writing Barack Obama, Donald Trump, or Lorde down. The term actually merely means "not permitted to be chosen".
Well, no, because there'd have to be a penalty defined, and there is not.
I am fairly sure the rules of baseball and the rules of golf both include rules on what happens when the players ignore the other rules. The Constitution could has well.
The rules of baseball have notably failed to punish the NBA for failing to enforce the foreign substance rule. Theyre not supposed to, of course, because the association is the authority which dispenses punishment on others. But the "constitutional rules" dont want anyone like that.
There is a certain theory of the separation of powers, where the constituition is supposed to act as a sort of trap-equilibrium, that would force all the people in it to go along via some complicated conditional punishment instructions to everyone, without anyone uncontrolled "above". This is a pipedream, and hasnt really been attempted, but neither did they just say "well the buck ends here, whatever those guys do is correct". They just told them what to do. Do you have a reason why this specific constitutional provision should carry punishment, thats not just "they should in general"?
I'm not looking for punishment, I'm just looking for a description of what happens. If the electors choose an ineligible person, who becomes President? Does the election go to the House right away? Are the votes for the ineligible candidates thrown out and the election decided by the votes for the eligible candidates?
EvanTh notes there is one in the 20th amendment, which seems to imply that the ineligible candidate could become President-Elect, but not be sworn in. Still plenty of wiggle room but at least a hint.
The reason this provision should spell this out is that the situation of an ineligible President being chosen could occur, and if it did, we'd have what's been called a "constitutional crisis". Obviously someone would become President, but there'd be a lot of drama with Congress and the Supreme Court that could be avoided by specifying what happens.
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