Gov. Hochul & then-Lt. Gov. Benjamin (photo: Kevin P. Coughlin/Office of the Governor)
It is not unreasonable to assume that our six incumbent statewide elected officials first got their current jobs by being elected to them. Not unreasonable, but mostly not so.
Actually, four of the six incumbents in these jobs – Governor Kathy Hochul; recently-resigned Lieutenant Governor Brian Benjamin; Comptroller Tom DiNapoli; and U.S. Senator Kirstin Gillibrand —first came to serve in their roles through the operation of provisions in law for filling vacancies due to resignation, death, or removal for cause.*
Moreover, even though the state constitution requires that no person filling a vacancy in elective office shall hold his or her appointment “longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy”…three of these four officials (Senator Gillibrand excepted) have served or were selected to serve out the entirety of the term to which their predecessors were elected (Article XIII §3). And now we again face the prospect of using a vacancy-filling process to fill a statewide office, for Lieutenant Governor, this time in the midst of an election campaign.
What’s going on here?
Article XX of New York State’s 1776 constitution provided that “...in case of the impeachment of the governor, or his removal from office, death, resignation, or absence from the state, the lieutenant-governor shall exercise all the power and authority appertaining to the office of governor until another be chosen…” This provision was retained in the updated 1821 constitution. But language adopted at the 1846 constitutional convention, and still in force, provided that upon succession “…the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the disability shall cease.” (Article IV §6).
Thus when Governor Andrew Cuomo resigned on August 24, 2021, Lieutenant Governor Kathy Hochul became governor and will serve as such for the one year and 128 days remaining of Cuomo’s four-year term (barring removal, death, or resignation).
New York’s four state constitutions and statutes pursuant to them have all been silent on whether and how to fill vacancies that arise in the lieutenant governorship. Beginning with the succession of Lieutenant Governor John Taylor after Governor Daniel Thompkins was elected Vice President of the United States in 1817, the practice was established of leaving the office vacant, with its duties performed by the Temporary President of the State Senate, and devolving sequentially if necessary to others in a line of succession specified by statute.
In 2009 Lieutenant Governor David Paterson succeeded Governor Elliot Spitzer. Faced with a chaotic political situation in the Legislature, a daunting budget crisis, and a potential scandal in his own office, Paterson appointed Richard Ravitch to serve as Lieutenant Governor under the general provisions of the Public Officers Law. The governor’s action was subsequently found constitutional by the state’s high court, the Court of Appeals.
In accordance with this precedent, Lieutenant Governor Brian Benjamin was appointed by Governor Hochul on August 26, 2021. Though Benjamin was intended to serve out the remainder of Hochul’s term — as the state constitution provides that “No election of a lieutenant-governor shall be had…except at the time of electing a governor” — his resignation in the midst of a campaign finance scandal has again opened the office to be filled by gubernatorial appointment.
The 17th amendment to the United States constitution provides that the “executive authority” of each state, if authorized by that state’s legislature, may temporarily appoint a U.S. senator in the event of a vacancy”…until the people fill the vacancies by election as the legislature may direct. In New York, the governor is given this power of temporary appointment.
In June of 1949 Democrat Robert F. Wagner resigned from the U.S. Senate. Two weeks later Republican John Foster Dulles was appointed by Republican Governor Tom Dewey to replace him. Since the outset of popular elections of U.S. Senators, New York law requires that “…vacancy… [elections were]… to be held at the next annual November general election which occurred at least 30 days after the vacancy arose.” In a special election held in 1949 on the next following general election day, former Governor Herbert Lehman defeated Dulles and took the seat by a vote of 2,582,438 to 2,384,819.
Lehman’s winning margin was provided by the Liberal Party’s cross endorsement. Republicans were convinced that the simultaneity of the special election for the Senate seat with that year’s mayoral election in Democrat-dominated New York City elevated turnout there, also contributing significantly to Dulles’ loss. In 1951 the Republican-controlled state government amended the Public Officers Law so that thereafter persons appointed to fill U.S. Senate vacancies would serve “… until a replacement can be elected at the next congressional election,” removing the possibility of election to fill vacancies in odd numbered years.
Currently, the Public Officers Law specifies 60 days before the primary date in each even-numbered year as the cutoff for determining whether the election will take place that year at the general election or whether it must await the next congressional election.
Kirsten Gillibrand was appointed on January 26, 2009 to fill the vacant U.S. Senate seat created by the resignation of Senator Hillary Clinton when she became U.S. Secretary of State in the Obama administration. There was no congressional election in 2009. Senator Gillibrand served as an appointee until winning a special election on the general election day held in November 2010 to complete the remaining two years of Clinton’s six-year term. She has since been elected twice to full six-year terms.
Comptroller and Attorney General
It was not until the 1846 constitutional convention that popular election was adopted for filling these two and nine other statewide posts. Previously these officials were appointed, under New York’s first constitution by a Council of Appointment and its second (after 1821) by the Legislature. During the time that the appointing power was with the legislature, so was the power to fill vacancies.
The democratizing 1846 constitutional convention also adopted the principle that vacancies in these newly elective offices be filled as soon as practicable by election, and with language that, as noted, persists in New York’s current constitution, that “…no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.”
Within this context, the Legislature sought to preserve what it could of the vacancy-filling power by statute. But legislative sessions were very brief in the 19th century, statewide officials’ terms of office were short (mostly two years), and these were key jobs both for the party patronage and the administration of state government. To assure that they were filled in a timely manner if the Legislature was not in session, therefore, a statute was adopted in 1849 that provided for interim gubernatorial appointment of “some suitable person” to fill vacancies in these positions until “the commencement of the political year next succeeding the first annual election” was adopted, while leaving with the Legislature final authority for making these appointments or making others when it reconvened.
Over the ensuing decades constitutional reforms reduced the number of New York’s statewide elected officials. As a matter of actual practice, power to fill vacancies in the positions of Comptroller and Attorney General came increasingly to reside with the Governor. Parallel to earlier statutory action taken regarding filing vacancies in the U.S. Senate, in 1953 Republican Governor Thomas Dewey proposed to the Legislature constitutional amendments requiring election of the Governor and the Lieutenant Governor on one ballot, barring elections for Comptroller and Attorney General except in (even numbered) gubernatorial election years, and empowering the Governor to fill vacancies in these two statewide officials by appointment.**
These were to be presented to the voters at referendum in a single question. But regarding vacancy-filling, instead of gubernatorial appointment the Legislature presented and the voters passed an amendment that delegated to the Legislature itself the task of establishing a vacancy-filling process for these offices. Then it adopted a law returning to the use of the practice of legislative appointment. The combined effect of this change and the bar on elections for Comptroller and Attorney General except in gubernatorial years was that appointees could serve in these elective offices for the entire remainder of the term to which the departing incumbent was elected.
The New York state constitution currently directs the Legislature to provide by law for filling vacancies in the positions of Comptroller and Attorney General. The process that it specified requires the Legislature to meet in joint session and elect persons to these offices if a vacancy occurs.
State Comptroller Tom DiNapoli was elected on February 7, 2007 by such a joint session to serve the remaining three years and 319 days of the four-year term of Comptroller Alan Hevesi. Hevesi, who was just reelected the previous November to a second term, resigned in December of 2006 as part of a plea bargain in a case involving his unlawful employment of state workers for personal purposes. DiNapoli has since been elected Comptroller three times.
Legislation has been periodically introduced and reform suggested to democratize New York State’s processes for filling vacancies in statewide elective office. In his constitutional history of New York, published in 1995, Peter Galie noted that constitutional amendments had received the first of two required passages in separate sessions of the Senate and Assembly “…which would eliminate the power of the state legislature to provide for the filing of vacancies and would delete the prohibition that no election for…[Comptroller or Attorney General]…shall be held except at the time of electing the governor.”
In 2010 the New York City Bar Association Committee on Elections called for a return to historic practice, with elections to fill U.S. Senate vacancies still held on the general election day, but possible in both even and odd numbered years. The Governor would retain the power to appoint an interim Senator, but the elected Senator would enter office earlier, “…upon the issuance of a certificate of election.”
Legislation first entered in 2007, and proposed again in the current session (bill A0596/S03876) by Democratic Assemblymember Kevin Cahill and Republican Senator Joseph Griffo, requires the Governor to call a special election to fill Comptroller and Attorney General vacancies. In a parallel bill (A00708/S03781), Cahill and Griffo do not require the Governor to call a special election, but allow him or her the discretion to do so for these two offices and United States Senator.
A version most recently introduced by Assemblymember Steve Hawler and Senator George Borrello (bill A06297/S03875), both Republicans, leaves initial responsibility for filling vacancies in the offices of Comptroller and Attorney General with the Legislature, but requires election to follow on the first general election day at least three months after the vacancy occurs.
Finally, regarding the lieutenant governorship, Republican Assemblyman Michael Tannousis and Democratic Senator Neil Breslin — on the model of the U.S Constitution’s 25th amendment process for filling a vacancy in the vice presidency — would condition appointment to fill a vacancy on the provision of advice and consent by both legislative houses (bill A08243/S2503).
Making Elected Offices Elected
New York’s provisions for filling vacancies in statewide office are diverse, complex, and riven with elements entrenched in law to achieve political advantage. Their combined effect is to devitalize the state constitution’s commitment to popular rule. Especially now, a time when democracy is under siege, it is crucial that all the paths to power in state government remain as democratic as possible, commensurate with efficient, effective governance.
A comprehensive, democratic approach to filling vacancies in top elective positions would have these elements:
1. Strengthen and reassert the constitutional principle that statewide elected offices must be filled by popular election as expeditiously as practicable.
2. For vacancies that occur early enough, before the start of the annual nominating process set out in the election calendar for the year, conduct an election to fill the office on the general election day. For vacancies that occur after the nominating process has started, hold the election on the general election day in the next following year. (Note: Avoid special elections for which there is added costs, turnout is lower, influence is exercised by the person charged with calling them, as they may result (New York City experience shows) in multiple elections for a single office in a brief span of time.)
3. Specify in the state constitution processes for immediately, automatically filling the vacated office on a temporary basis, with unelected persons serving in an acting capacity until an election is held. Whereas Lieutenant Governor acts as Governor; Executive Deputy Comptroller acts as Comptroller; Solicitor General acts as Attorney General. For U.S. Senator and Lieutenant Governor vacancies, interim acting appointments would be made by the Governor with advice and consent of both legislative houses required. For Comptroller and Attorney General, deputies specified in a succession statute should assume interim responsibility in the period preceding the required election. No non-elected person would hold unqualified status in these positions.
*They are among the three New York U.S. Senators, ten governors, eleven comptrollers and six attorneys general who first entered their offices in accord with vacancy filling positions. Comptrollers and Attorneys General were not chosen by popular election until 1846. U.S Senators were not chosen by popular election before 1913. James Mead is not included. No appointment was made prior to the special election to fill the Senate seat vacated by Royal Copeland at his death in July of 1938.
**This followed the earlier statutory change (1951) providing for holding required elections to fill vacancies in U.S. Senate seats only in even numbered years (see above). Republicans believed that statewide elections in odd numbered years favored Democrats, especially if there was a mayoral election in New York City scheduled that would boost turnout there.
Gerald Benjamin is Emeritus Founding Director of The Benjamin Center at SUNY New Paltz.