Filling Vacancies
Can Elected Officials be Accountable without Elections?

"As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured."

-Federalist Papers No. 52

In our State Legislature, the voters should select the Democratic candidate in a primary election when there's a vacancy, NOT Cuomo and the party bosses.

New York Public Officers Law §42 states that, when vacancies in the State Senate and Assembly occur, there may be either the regular process of Primary and General Election or the Governor may call a Special Election that allows parties to select candidates by their own rules rather than having a Primary Election.
Back in 2011, there were 6 vacancies in the Assembly. But Cuomo decided to exercise his power to take the choice away from the voters and hand it back to the party bosses.  He let Vito Lopez (yes, that Vito Lopez) choose the Democratic Assembly candidate rather than the voters of Brooklyn's 54th District.
Basically, Cuomo has signaled to the old, dysfunctional culture in Albany that all was still status quo.
-Bill Samuels
Authored by

With the exception of replacing the Governor, the Constitution gives great leeway to the legislature when setting rules for filling vacancies in office.  This has become an increasingly important question, as a growing number of legislators and statewide officials have taken office following a vacancy outside the normal election cycle. 

While many have argued for a process for filling vacancies that is as inclusive of the voters as possible, our State Constitution currently prohibits special elections for the filling of vacancies for the Comptroller or Attorney General, is silent on replacing the Lieutenant Governor, and leaves the process for filling legislative vacancies entirely in the hands of the legislature itself.

By 2010, New York State found itself in an unprecedented situation. Out of our six statewide elected officials (Governor, Lt. Governor, Comptroller, Attorney General and our two United States Senators), four (Gov. Paterson, Lt. Gov. Ravitch, Comptroller DiNapoli and Senator Gillibrand) had come to office without being voted into that position by the voters.  Elected officials tend to be most responsive to those who get them into office, and with 2/3 of our statewide officials coming into office by means other than an election, many voters felt significantly disenfranchised.

Further, a 2011 report by Common Cause found that 31% of the current state Assembly members had come into office in special elections, in which party officials choose candidates rather than voters in a primary.  These special elections tend to be very low turnout affairs, leaving districts often represented by legislators who were voted for by less than 10% of the eligible population.

The 2009 State Senate coup ended up bringing the problems with the current approach clearly into focus.  At that time, David Paterson had become Governor following the resignation of Eliot Spitzer, leaving a vacancy in the Lieutenant Governor’s office.  As the Constitution is silent on the matter of replacing the Lt. Governor, it was assumed that the position would remain vacant until the next general election in 2010.

However, the Lt. Governor also serves as the temporary president of the Senate, and is empowered to make “casting votes” when a Senate vote ends in a tie.  In June of 2009, with the Democrats holding a slim 32-30 majority in the house, two members Democratic Senators, Pedro Espada and Hiram Monserrate, decided to join the Republican conference, reestablishing the GOP majority.  Monserrate quickly recanted his decision and rejoined the Democrats, but Espada did not, leaving the chamber deadlocked at 31-31.  And with no Lieutenant Governor, there was no one empowered to break the tie.

This went on for weeks, with the legislature grid locked and unable to do any work, until the Governor embraced a new reading of the Public Officers Law, which stated that where there is no other controlling law, he (or she) may appoint someone to fill any vacancy in office in the state.  The Governor appointed Richard Ravitch, and after the expected legal challenges, the Court agreed with the Governor and  the appointment was upheld.  Ravitch, on his part, as never subject to any form of confirmation, review or public hearings; he was simply appointed by Gubernatorial fiat.

If we are to have legislators and statewide officeholders truly responsive and accountable to the voters, we need to set constitutional standards for filling vacancies that are predicated on the belief that we should always look to maximize voter input in filling offices.  Our constitution generally gives the legislature the full right to fill legislative position however it sees fit, and actively prohibits voter input in filling statewide vacancies.  This must change.

Daily News
Joshua Spivak
Wednesday, March 10, 2010
"This is an opportunity for the state to rethink the  position and actually turn the job into a useful one. There is one simple way to do that: Follow 18 other states and split the ticket, allowing voters to directly elect lieutenant governors in...
An amendment to the New York State Constitution to elect the Lieutenant Governor directly would allow for the people of New York to both choose the LG, as well as replace the LG in the event of a vacancy.
Link to Original Source - Link to Cached Version
Christian Science Monitor
Alexandra Marks
Thursday, July 9, 2009
Calling the New York Senate “childish” and “chaotic,” Governor Paterson on Thursday asserted his right to appoint a lieutenant governor. He has also gone to court to challenge the Republican-backed effort to stop his new...
A constitutional amendment would clarify how the Lieutenant Governor is to be replaced in the event of a vacancy.
Link to Original Source - Link to Cached Version
The Economist
Thursday, January 29, 2009
Many would argue that gubernatorial appointments give too much power to one person and too little to voters. Since 1913 more than 180 senators have been appointed by governors, according to Fair Vote, a voting-rights advocacy group. Only four states...
The current system of filling vacancies in New York affords too much power to the executive.  A constitutional amendment could establish a process for filling vacancies that is more balanced.
Link to Original Source - Link to Cached Version
Amendments proposed in the New York Legislature either currently or in the past that are worthy of note.
A selection of relevant solutions from other states.

Eight other states (AL, AR, MA, OK, OR, VT, WA and WI) call for special elections to fill vacancies, while three other states (AR, LA, and MI) have a hybrid system of appointments and special elections in their constitutions to fill vacancies.



A Project of the Howard Samuels New York Policy Center, Inc.
Web Development by Kallos Consulting 

Creative Commons License