Spring 2012 Essay Contest Winning Essay Submitted by Patrick A. Woods, Editor in Chief, Albany Law Review
The Lieutenant Governor, nominated separately from the governor but elected with him or her on a single ballot, is one of four constitutionally established statewide elected positions in New York State Government. The person holding this office becomes governor if the governor dies, declines to serve, resigns or is removed. He or she acts as governor if the governor is absent from the state, is impeached or is unable to discharge his or her duties. The Constitution does not specify the process for replacing the Lieutenant Governor if the office becomes vacant by virtue of its incumbent becoming governor. Though the position is described in the constitution's executive article and is commonly regarded as in the executive branch, the sole constitutionally defined duty of the Lieutenant Governor is legislative - to preside over the State Senate and exercise a casting vote there. Five states have chosen to do without a Lieutenant governor, accomplishing the limited functions commonly assigned the office by other means.
There have recently been three constitutional change issue areas under discussion regarding the Office of the Lieutenant Governor:
- The method of electing the Lieutenant Governor
- The duties of the Lieutenant Governor
- The method of filling vacancies in the Office of Lieutenant Governor
Governor Eliot Spitzer resigned amidst scandal on March 12, 2008. His Lieutenant Governor, David Patterson, became governor. In November of that year Democrats gained control of the New York State Senate for the first time since 1965. After a series of failed attempts to organize, four Democrat Senators joined with the Senate Republicans, ostensibly creating a majority coalition. However, Democrats refused to acknowledge loss of control. Shortly thereafter, two Democrats returned to the fold, leaving the body in a 31-31 deadlock. As a result, the State Senate ceased to function for nearly a month. With the Office of the Lieutenant Governor vacant, there was no casting vote. Fearful of the consequences of governmental dysfunction in the midst of a deepening fiscal crisis, Governor Patterson found statutory authority to act and appointed Richard Ravitch Lieutenant Governor. No legislative advice and or consent was required or sought. When challenged, this action was upheld by the state high court, the Court of Appeals. Simply put, the State Constitution failed to foresee or provide for this unlikely unfolding of events.
The New York State Constitution provides for the simultaneous election of the Lieutenant Governor and Governor for a four year term by casting a single ballot for both in the general election. However, the Governor and Lieutenant Governor run are chosen through separate balloting in the primary process. As a result, candidates who present themselves as a "ticket" to the party during the nominating process may not, in fact, both be nominated, or run together in the general election.
While the current system of electing the Lieutenant Governor does not allow for the possibility of electing a Governor and Lieutenant Governor from different parties, as is possible in California, it does not ensure that the candidates for Governor are assured of having their preferred running mates. In 1982 for example, Mario Cuomo won the Democrat gubernatorial nomination in a primary, but his chosen running mate, H. Carl McCall, lost the nomination for Lieutenant Governor to Westchester County Executive Alfred DelBello. Coumo and DelBello ran together in the General Election, and won. Cuomo did not give DelBello any serious role in his administration. DelBello resigned in 1985.
In contrast, in 2010 gubernatorial election, Andrew Cuomo chose City of Rochester Mayor Robert Duffy as his preferred running mate. At the Democratic Party Convention, they were chosen as the Democratic candidates, and did not face a primary challenge. Duffy has been incorporated in the administration as a leader in the state's economic development effort.
Currently 18 other states provide for the Governor and the Lieutenant Governor to be elected on separate ballots. Proponents argue that such an arrangement in New York would allow a discrete choice by voters of the candidate best qualified to serve as Governor should the office become vacant.
Historically, with few constitutionally based duties, the Lieutenant Governor's effectiveness is largely dependent upon him or her having a positive relationship with the governor. Malcolm Wilson, Nelson Rockefeller's Lieutenant Governor, and Stan Lundine, who served with Mario Cuomo, both enjoyed such a relationship. In addition to DelBello, Mary Anne Krupsak, who served with Hugh Carey, and Betsy McCaughey Ross, who was George Pataki's first Lieutenant Governor, both were not trusted by the governor and rendered ineffective. After his appointment Richard Ravitch took a role unprecedented for a Lieutenant governor in developing potential state fiscal policy, but then the governor rejected his plan, rendering him ineffective.
Opponents to separate ballots for the two offices cite the increased likelihood of the marginalization of the lieutenant governor if joint election is abandoned, and urge instead that it be reinforced with joint nomination. They fear, too, the possibility of the election of a governor and Lieutenant governor of different parties, with the problems that might ensue both in the operation of the government and from succession.
As noted, under the current constitution, the enumerated powers of the Lieutenant Governor in New York are limited to succession and serving as the President of the State Senate, and having a casting vote in the Senate.
Formerly a state with no Lieutenant Governor, New Jersey recently created the office after discontent arose from succession by legislative leadership to fill gubernatorial vacancies there. Its constitution provides "The Governor shall appoint the Lieutenant Governor to serve as the head of a principal department or other executive or administrative agency of State government, or delegate to the Lieutenant Governor duties of the office of Governor, or both. The Governor shall not appoint the Lieutenant Governor to serve as Attorney General. The Lieutenant Governor shall in addition perform such other duties as may be provided by law".
(Article V, Section I, paragraph 10 amended effective January 17, 2006)
Succession and Inability:
Provision for succession to fill a vacancy in the governorship, and definition of conditions under which the lieutenant governor may act as governor are provided for in Article IV Sections 5 and 6 of the New York State Constitution. The Constitution, however, does not specify how a vacancy in the office of Lieutenant Governor be filled.
As noted, in a response to a challenge to the appointment by David Paterson of Richard Ravitch to fill the vacancy in the lieutenant governorship created when Elliot Spitzer resigned and Paterson, then Lieutenant Governor, became governor, the Court of Appeals decided that – absent such a constitutional provision or an affirmative prohibition – this gubernatorial action was constitutional, and in accord with state legislation on filling vacancies in elective office. Objection to this power of the governor to appoint his potential successor, especially without the advice and consent of the State Senate, brought a call for constitutional change. One approach would allow appointment, but with advice and consent of the Senate or the Senate and Assembly, the later similar to the provision used to fill a vacancy in the U.S. Vice Presidency. (U.S. Constitution Article XXV Section 2.). Another would require election of a new lieutenant governor as soon as practicable after a vacancy arises.
An attendant issue concerns the manner in which a determination is made concerning of the inability of a governor to discharge the powers and duties of his or her office, and also when that ability is restored. One model is the provision on inability and succession added to the United States Constitution in the 25th Amendment in 1967.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore
Section 1. The executive power shall be vested in the governor, who shall hold office for four years; the lieutenant-governor shall be chosen at the same time, and for the same term. ... They shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices.
§6. The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote therein...
Eliminate Lieutenant Governor from the Constitution.: AZ, ME, NH, OR, WY