Filling Vacancies in State Elective Offices

Professor's Piece: 

I.             Governor and Lieutenant Governor Simultaneously

When simultaneous vacancies in the governorship and the lieutenant governorship exist, the state constitution provides for the election of that persons to fill these posts  “for the remainder of the term at the next general election no less than three months after both offices shall have become vacant.”

II.            Governor .

A.    Regarding vacancies in the governorship, the state constitution makes an important distinction between when succession is permanent – that is, when the successor assumes the vacant office --  and when he or she “acts” in that office.

  • Becoming governor. According to Article IV, section 5 of the New York State Constitution, if the governor dies in office, declines to serve or resigns,  then the lieutenant governor “becomes” governor for the remainer of the term. 

 

  • Acting as governor. However, if the governor is “impeached, absent from the state or otherwise unable to discharge the powers and duties of the office,” the lieutenant governor acts as governor for the duration of the inability or of the term. Also, if swearing in of the governor-elect is delayed, “the lieutenant governor elect shall act as governor until the governor shall take the oath.”

 

  • To assure that the successor to the governorship is of the same party of the governor the state constitution provides in Article V that “they shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices” and in Article IV section 6 that “no election of a lieutenant-governor shall be had in any event except at the time of electing a governor.”

 

However, nomination by primary election, with distinct balloting for each office, has resulted in nomination and later election of governors and lieutenant governors of the same party who were not running mates in the nominating process, complicating governance and affecting potential succession in a manner not fully in accord with the intent of the state constitution.

B.    Constitutional provision for succession to the governorship by others than the lieutenant governor employs the temporary language. 

  • If the offices of both governor and lieutenant governor are vacant simultaneously, or if “both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor,  the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.”  (Article IV Section 6, Paragraphs 2, 3, 4, 5.) 

 

  • The temporary Senate president is also constitutionally charged with acting as governor on the occasion of a vacancy in the office of lieutenant governor, or the absence from the state or inability of the incumbent in that office.

 

  • The Speaker of the Assembly is placed by the constitution next in line of succession to the acting governorship. 

 

  • Finally, the constitution says, “The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.”

 

Note that succession through the legislature may result in a person acting as governor who is of of a different party than the governor.

III.           Lieutenant Governor.

  • The constitution is silent on permanently filling a vacancy in the lieutenant governorship when the president of the Senate or another is acting as lieutenant governor in accord with the provisions of the constitution, and there is no simultaneous vacancy in the governorship. 

 

  • In a highly controversial action taken in a roiled political environment in 2009, Governor David Paterson appointed Richard Ravitch to the Lieutenant Governorship to fill the vacancy in this office created when he, Paterson, vacated it to become governor as a result of Eliot Spitzer ‘s resignation from that office.  Paterson acting on the basis of Statutory authority given ti the governor in Section 43 of the Public Officer’s Law to fill any vacancy in an elective office created "otherwise than by expiration of term," when there is "no provision of law for filling" that vacancy, "until the vacancy shall be filled by an election." This action was upheld by a closely divided state high court in the case of Skelos v. Paterson. (13 NY 3d 141 (2009)).

IV.          Comptroller and Attorney General

  • The constitution requires in Article V section 1 that “The legislature shall provide for filling vacancies in the office of comptroller and of attorney-general.” However the constitution is restrictive as to method in that it also requires that “No election of a comptroller or an attorney-general shall be had except at the time of electing a governor.”

 

  • The legislature has consequently explicitly provided in Section 41 of the public officers law for appointment by “joint ballot” of the Senate and Assembly to fill vacancies in these two offices when “a  vacancy  occurs or exists,  other  than  by  removal,… or a resignation of either such officer to take effect  at  any  future  day  shall  have  been made while the legislature is in session….”

 

Each member of the legislature casts a single vote in this selection process.  This gives the Assembly, with 150 members, a greater voice in this process than the Senate, with 62 members.  (Senate attempts to alter the process so that, in effect, each house cast a single vote for filling a Comptroller or Attorney General vacancy failed in the courts.  See Anderson v Krupsak (40 NY2d 397) and Marino v. Weprin (600 N.Y.S. 2d 289). In New York’s highly partisan legislative environment, the party with a majority of the combined membership of both houses controls the choice. This is most likely to be the party that controls the Assembly; since 1974 this has been the Democrats. Finally, the party discipline that prevails in the legislature makes the Assembly Speaker the key figure in filling vacancies in these elective offices.

 

V.                State Legislature

 

  • The state constitution is silent on filling vacancies that might arise from any cause in state legislative offices.

 

  • In general, Section 42 the Public Officer’s Law provides for filling vacancies in state legislative offices either by general election or special election.  If a special election is used, its timing is determined by the governor.

 

VI.               Recent Controversies

 

The principle is advanced that, to the greatest degree practicable, vacancies in elected offices should be filled by elections held at a time and through a process that will maximize competition and accountability. 

 

  • Critics argued that Governor Paterson’s appointment of Richard Ravitch as Lieutenant Governor was outside the intent of the state constitution and statutes, not in accord with long established practice and an undesirable exercise of unilateral authority by the governor.   Defenders of the governor’s action suggested that it was plainly within the reach and meaning of statutory language and thus honored legislative intent. (See Ward v. Curran 291 NY 2d (1943))

 

For an account sympathetic the Court of Appeals decision and a summary of arguments and sources see Richard Briffault. “Skelos v. Paterson: the Surprisingly Strong Case for the Governor’s Surprising Power to Appoint a Lieutenant Governor” 73 Alb. Law Review 675 (2010)

 

  • State Comptroller Alan Hevesi’s resignation almost immediately after he was reelected in 2006 resulted in the appointment by the legislature of Long Island Assembly member Tom DiNapoli for almost an entire four year term.  Critics questioned the predisposition of this process, controlled by the state Assembly, to result in the selection of an Assembly member to fill the vacancy, and also the filling of a vacancy in a high elective office for such long duration. In another example, in 1994 the legislature appointed a sitting member, G. Oliver Koppell to fill a vacancy in the office of Attorney General.

 

For a detailed description of the DiNapoli appointment see Dan Feldman and Gerald Benjamin. Tales From the Sausage Factory (Albany: SUNY Press, 2010) Chapter ___.

 

  • Critics argue that the frequent use of low turnout special elections to fill vacancies in the state legislature has limited competition and empowered party leaders in this process.

 

See Citizens Union. Circumventing Democracy: the Flawed process for Filling Vacancies For elected Office in New York State, 2011 Update http://www.citizensunion.org/www/cu/site/hosting/Reports/CU_CircumventingDemocracyReport_June2011.pdf

 

VII.             Other States – Lieutenant governor vacancies

 

Provision in other states for filling vacancies in the office of lieutenant governor illustrate a range of available options.

 

Ø  20 states empower the governor to fill a lieutenant governor vacancy through an appointment. For example, Montana’s constitution provides; “If the office of lieutenant governor becomes vacant by his succession to the office of governor, or by his death, resignation, or disability as determined by law, the governor shall appoint a qualified person to serve in that office for the remainder of the term” (Article IV section VI).

When appointment is used, 10 states require the appointee be confirmed by a majority of the members of both houses of the legislature. In Indiana: “Whenever there is a vacancy in the office of Lieutenant Governor, the Governor shall nominate a Lieutenant Governor who shall take office upon confirmation by a majority vote in each house of the General Assembly and hold office for the unexpired term of the previous Lieutenant Governor” (Article five, section 10 sub B) New Mexico, in contrast, requires only its state senate to confirm the governor’s nomination for lieutenant governor.

 In Louisiana, the governor appoints a Lieutenant governor until a special election can be arranged, with its Constitution stipulating; “Should a vacancy occur in the office of lieutenant governor, the governor shall nominate a lieutenant governor, who shall take office upon confirmation by a majority vote of the elected members of each house of the legislature. If the unexpired term exceeds one year, such person shall serve as lieutenant governor only until the office is filled.” (Article IV, section 16, sub B)

 

In Texas, where the lieutenant governor exercises substantial power in the legislature, the constitution provides for the creation of a special committee to fill a vacancy in this position from among sitting Senators: “If the office of Lieutenant Governor becomes vacant, the President pro tempore of the Senate shall convene the Committee of the Whole Senate within 30 days after the vacancy occurs. The Committee of the Whole shall elect one of its members to perform the duties of the Lieutenant Governor in addition to the member's duties as Senator until the next general election” (Article III section 9). Rhode Island has a similar provision.
 

Ø  In a 9 states, the president of the senate automatically fills a lieutenant-governor vacancy through succession. In 5 of the states (including New York) the Senate president “acts” as lt. governor, while in four the Senate president becomes lt. governor until the next election. The Pennsylvania constitution states “In case of the death, conviction on impeachment, failure to qualify or resignation of the Lieutenant Governor, or in case he should become Governor under section 13 of this article, the President pro tempore of the Senate shall become Lieutenant Governor for the remainder of the term.”

 

Ø  Three states specify that the office must remain vacant (Illinois, Missouri, Massachusetts). In Illinois, a 2010 statute permitted the governor to assume and/or delegate the powers of lieutenant governor in the event of a vacancy. It said: “The Governor may delegate the exercise of any such power or duty to an appropriate State officer or agency under the jurisdiction and control of the Governor” (15 ILCS 102). The statute was later repealed, citing the state constitution which maintains the office remain vacant until the end of the term.
 

Ø  Though state constitutions usually provide for filling vacancies in statewide office, in 5 states the procedure is specified in statute (Kansas, South Carolina, North Dakota, Hawaii, California). The Kansas constitution says:  “The legislature shall provide by law for the succession to the office of governor should the offices of governor and lieutenant governor be vacant, and for the assumption of the powers and duties of governor during the disability of the governor, should the office of lieutenant governor be vacant or the lieutenant governor be disabled” (Article I section 11).  According to the statute adopted there a vacancy in the office of lieutenant governor is “…filled by appointment until the next general election at which time a person is to be elected to fill the unexpired term, or words of like effect, and such vacancy occurs after the primary election…” KS 25-3905

 

Ø  In 3 additional states, court decisions define the process for filling vacancies in the post of lieutenant governor. (North Carolina, Indiana, Minnesota). North Carolina, for instance, calls for a vacancy in the office of Lieutenant Governor be filled by the President of the Senate, upon his or her resignation from the Senate, for the remainder of the term of office. Thomas v. State Bd. of Elections (1962).

 

Ø  Four states have no provisions for filling a vacancy in the office of Lt. Governor (Vermont, Alaska, Oklahoma, Ohio).

 

Ø  6 states do not have Lt Governors.

 

VIII. Election to fill vacancies as a constitutional principle

 

The choice of those with governing authority in fair and open elections, and their further accountability through the electoral process, is a sine qua non of representative democracy. A corollary, as the Court of Appeals said in Ward v Curran in 1943 is that "a vacancy in an elective office should be filled by election as soon as practicable after the vacancy occurs". (266 App Div at 526)

Violation of this “electoral principle” was at the core of Judge Eugene Pigott’s dissent in Skelos v. Paterson.  Though he disagreed with Judge Pigott on the law in this case, Professor Richard Briffault, a leading expert on New York Law at the Columbia Law school, wrote sympathetically of the need to remedy the “democracy deficit” in the state’s provisions for filling vacancies in elective office: “Although an appointment may be a necessary or desirable "stopgap" until an election can be held,” Briffault said, “there is no need for these stopgap periods to last so long. And, if the law is going to permit an appointee to hold office for two or four years, there is a good case for requiring the participation of more branches of government - the governor and both houses of the legislature - in some of these decisions.” (p. 694)

The state constitution provides a right for “every local government” in New York to “…have a legislative body elected by the people thereof.” (Article IX. Section 1.a) An explicit right to representation by elected state leaders should be similarly assured, and extended to processes for filling vacancies. Appointment to assure the continuity of representation should be limited to transitional periods, and kept as brief as practicable. There may be superseding considerations to the general principle of filling vacancies through election in specific cases, for example to assure that the governor and lieutenant governor are of the same party during the duration of  a governor’s term of office, but these should be exceptional and well justified.

Additionally however, experience with filling legislative vacancies by election suggests the need for attention to the openness and competitiveness of the nominating process, and the timing of these elections to assure maximum participation. The constitutional guarantee of a representative state government should therefore include directive language to the legislature to incorporate these key elements. The failure of the legislature to adhere to this electoral principle in processes for filling vacancies, which in fact has been a significant factor in recent years in the selection of New York leaders, is a compelling argument for a statement of this principle in the state constitution, to direct and guide revision of current practice. 

 

IX. Recent Proposals in New York for Constitutional or Statutory Change in Provisions for Filling Vacancies in Elected Office.

 

A04846 (2007 – 2008) Amends Article 5 section 1 of the constitution to permit the governor to appoint to fill a vacancy in the office of Comptroller and Attorney General until the next general election. (Same as A08419 of 2009-2010)

 

A07167 (2007-2008)  – Amend article 4, Section 6 of the state constitution to provides for appointment by the governor of a lieutenant governor to fill a permanent vacancy in that office, subject to Senate advice and consent. (Same as A0028, S07549 of 2009-2010)

 

A07202 – (2007-2008) – Same as S05900. Amends Article 5, Section 1 of the  state constitution to provide for election at the next general election to fill a vacancy in the A.g. or comptroller.

 

A03543 (2007-2008) – Provides for a primary to nominate for elective offices to be filled at the next general election.

 

A10269 – (2007 – 2008) Amends Article 4 section 6 of the Constitution to allow the legislature to fill a vacancy in Lieutenant governorship

 

A05269 – (2009-2010) Amends Article 4 Section 6 to provide for a special election to fill vacancy in lieutenant governorship.

 

A10952 (2009- 2010) Same as S07682. Amends Article 4 Section5,6 of the constitution to authorize the governor to fill vacancy in the office of lieutenant-governor on confirmation of both houses of the legislature, allow the governor to leave the state without transmitting power to the lieutenant governor and all provide for lieutenant governor t o act as governor while governor is incapacitated.

S01801 (2009-2010) Amends the Public Officer’s Law to provide for special election to fill vacancies in the offices of  U.S. Senator, Comptroller and Attorney General.

S05294 (2009-2010) Same as A645. Amends the election law to provides for independent nominating petitions in process to fill vacancies in Senate and Assembly

 

 

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

Creative Commons License