New York State of Mindlessness

Adjunct Professor Jerry H. Goldfeder in the New York Times, June 10, 2009

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June 11, 2009
Op-Ed Contributor
New York State of Mindlessness
By JERRY H. GOLDFEDER

WITH the drama unfolding in Albany, Gov. David A. Paterson has forsworn traveling out of the state. There is, after all, no lieutenant governor to hold the reins of power temporarily if he did. Instead, under the New York State Constitution, the president pro tem of the State Senate would act as the chief executive — but given the power struggle between the Senate Democrats and Republicans, it is not even clear who would step forward, or what power that person would attempt to exercise. However this imbroglio sorts itself out, uncertainty in the line of succession is undesirable.

There is no provision in the state Constitution to fill a vacancy in the position of lieutenant governor between general elections. In normal times, it’s an absence that would go largely unnoticed. After all, only nine New York lieutenant governors have taken over for their bosses in approximately 200 years — the most recent example, of course, being Mr. Paterson, who succeeded Eliot Spitzer. In none of these situations was the Senate’s president pro tem (who, typically, is the Senate majority leader) called upon to assume the governorship.

That is just as well. There are serious unanswered questions regarding the ramifications of succession by the Senate’s president pro tem: Would the new acting governor retain his Senate seat? Could he still vote to break a tie in the chamber? How would he avoid the appearance, to say nothing of the reality, of conflating the executive and legislative branches of government?

Presidential succession provides a model for addressing these issues. The 25th Amendment, ratified in 1967, permits the president, with the consent of Congress, to fill the vice presidency should that office become vacant. Vice presidents have succeeded to the presidency nine times during our history; and if there is a vacancy in the vice presidency, the speaker of the House would become president after resigning her seat in Congress. Except in extraordinary circumstances, however, the 25th Amendment would make that unnecessary.

New York’s 20 million citizens deserve the same kind of clarity as to who would succeed to the governorship if a vacancy arises. That is why the New York City Bar Association has proposed legislation requiring the governor, with the consent of the Legislature, to appoint a lieutenant governor when the position is vacant. The governor, working with an executive partner, could be reasonably assured that his policies would be continued by a successor. And there would be no danger that internecine turmoil within the State Senate would affect succession — even when a governor temporarily leaves the state.

Across the river, New Jersey is electing its first lieutenant governor this year after realizing that its long-term practice of having the Senate president assume the governorship was problematic. In New York, we should take the next logical step and adopt the federal model so that we always have a lieutenant governor waiting in the wings. A government with a strong executive requires it. The avoidance of potential usurpation demands it.

Jerry H. Goldfeder, a lawyer, is the chairman of the Election Law Committee of the New York City Bar Association and an adjunct professor of election law at Fordham Law School.