A November Election For Lieutenant Governor?

I'm not a lawyer, but let me play one for now. After all, with the antics in Albany, how could it hurt? In thinking about the monotonous, boring and buffoonish situation in our State Senate these past few weeks, I've wondered why no citizen has stepped up to file a legal challenge to force an end to this charade. An Article 78 proceeding, as I understand it, allows affected citizens legal relief to compel the government to act.

A friend of mine, who is an attorney of some distinction, has sent me what appears to be the answer to my thoughts and perhaps the prayers of a weary citizenry. It is an order of the state's highest court, the Court of Appeals, in 1943 affirming a decision of the Appellate Division that ordered the state to hold an election to fill the vacancy of the office of Lieutenant Governor! Yes, we could have an election this November to decide who will fill the vacancy created by Paterson's accession to the governorship.

In the case of Ward v. Curran (291 N.Y. 642, 50 N.E.2nd 1023), the Court of Appeals unanimously affirmed the order of the Appellate Court, mandating that the Secretary of State make preparations for the vacancy to be filled at the next general election. The Appellate Court, by a 4-to-1 decision, had determined that because the lieutenant-governor has "statewide duties other than to preside over the senate and, when necessary, to act as governor, which should be performed by an official elected in the state at large and not by one elected by the voters of a single senate district, as is the case of the temporary president of the senate."

The Appellate Court goes on to state "Section 42, Public Officers law, was enacted by the legislature under a constitutional mandate to 'provide for filling vacancies in office.' It is not limited by Section 41." This was in response to the then-Attorney General's argument that Section 41 makes no provision for filling a vacancy in the office of Lt. Governor while it does do so for the offices of Comptroller and Attorney General. The court deemed that the provision of the constitution regarding the role of temporary president of the senate was limited to presiding over the deliberations of the Senate.

While this may not break the impasse between the two currently equally-ridiculous factions in the state senate, it would relieve us of the troublesome prospect of a completely rudderless state government should anything happen to incapacitate Governor Paterson while there is no clear line of succession. Or worse yet, the elevation of one Pedro Espada to the governor's office, as a result of some backroom deal between the warring parties in the senate.

So, to my friend Dick Ravitch, I would say get ready to rumble. You may have to run for the job, if only to serve out the term. Let this lesson be observed, no good deed goes unpunished! A lifetime of honorable service to your city and state in times of crisis, and this is what you reap!

Comments

[BrooklynReturnee]

Unfortunately, Bill, after the Ward case, the Governor, who didn't like the result, went to the Legislature and the law was changed. The NY Constitution was amended to provide that the Governor and Lt. Governor have to be elected together and the Public Officers Law changed specifically providing that there would not be any special elections for governor and lt. governor. Hence, the current Sec. 43, which provides for the governor to fill vacancies, should apply under current law.

[Bill Cunningham - Huffpost Blogger]

Brooklyn Returnee, I was back in my old boro last night for dinner. Thanks for the comment. There are still lawyers, wouldn't ya know, who argue that while there was a change, it is far from clear that an election for a vacancy in the LGs office is prohibited. If indeed there is no explicit prohibition, and since there is no clear direction about what to do, I still favor an election. Besides, we can think of this as a stimulus program for hungry lawyers!

[dannytex]

I agree stop the nonsense. Let do it in November.Why waste taxpayers money on court cases that bound to arise out of this nightmare.
Good Article

[Bill Cunningham - Huffpost Blogger]

Thanks, dannytex...I've been informed that the state constitution has subsequently been amended so that there is not a provision for a special election for Lt. Gov. But it is this same legal decision that Assemblyman Gianaris and others are using to say that the Governor has the power to appoint. Whatever the legal points are, the idea that one senate district should not determine who the acting governor may be is, to my mind, a valuable concept in a democracy. I assume that smart lawyers are looking to make sure that we are not violating the federal Voting rights Act by either depriving citizens of the elected officials' services for which they voted (i.e. a functioning state senate in this case), nor are we violating the concept of one man, one vote. As I recall, the New York City Charter had to be rewritten because the old Board of Estimate was ruled a violation of one man, one vote -- Brooklyn with 2 miillion people had the same vote as Staten Island with 400,000 people. So, why is it not unfair, unconstitutional to have the few thousand voters of one senate district wind up picking a governor as opposed to the millions who voted statewide? A special election seems emminently correct as a way to resolve these matters fairly.
Finall, in my own defense, and as I stated at the beginning, I am not a lawyer...but I do believe I have earned a degree in common sense.