"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
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.
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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.