Following Spitzer

It may be an overstatement to refer to any state constitutional question as “interesting” in the wake of a nationally publicized sex scandal, but we believe there are genuinely interesting issues of succession following Eliot Spitzer’s resignation. The New York state constitution (Article IV, Section 5) provides for Lieutenant Governor David A. Paterson to become Governor for the remainder of Spitzer’s term, which ends in 2010. However, there is no provision made in the New York state constitution to replace the Lieutenant Governor if only that office is vacant. Instead, under Article IV, Section 6, in the case of a vacancy in the office of Lieutenant Governor alone, the temporary president of the Senate—that is, Republican Majority Leader Joseph L. Bruno—"shall perform all the duties of lieutenant-governor," while still retaining his Senate seat.

Here’s where things get interesting: the main duty of the lieutenant governor is casting a tie-breaking vote in the State Senate, known as a “casting vote,” similar to the one the Vice President of the United States casts in the U.S. Senate. (Art. IV, Sec. 6 again). However, unlike the Vice President, Bruno would also remain a member of the Senate, enabling him to essentially vote twice when votes are tied: first, his full vote as a senator, and then, a casting vote wearing the hat of the lieutenant governor.

Given the competitiveness of recent Senate elections, it’s increasingly possible that Bruno will be compelled to pull double duty. Though Republicans emerged from the 2006 general elections with a 34–28 advantage in the Senate, Democrats have narrowed the gap to 32–30 after capturing two GOP seats (Districts 9 and 48) through special elections. If the Democrats pull even with Republicans in seat share between now and 2010, they would still be, in effect, the minority party. Before the resignation, an even split would have given them control with Lt. Gov. Paterson as the tiebreaker, a fact not likely lost on a party that has not had control in the Senate since 1965. Even though the Dems won the Lieutenant Governorship in 2006, the Republicans will likely control the casting vote for the time being.

However, there’s recently been some talk that the “casting vote” called for in the constitution can only be cast on procedural matters. Calling the vote a “casting vote” only means that it is a deciding, or tie-breaking vote, but different legislative bodies have given different power to the casting vote. In the U.S. Senate, any vote can be decided by the Vice President. But in the British House of Commons, the Speaker is only supposed to vote to hold further discussion. Interestingly enough, the Vice Presidency of the United States was modeled after New York’s lieutenant governor post. But there’s no indication in the constitutional text on whether the “casting vote” is for all votes, or just procedural ones, leading to some back and forth as to what the “casting vote” entails. In the words of one interested party, “The Constitution is clear, very clear. . . The Constitution gives certain rights to duly elected members. The lieutenant governor is not a duly elected member and is limited to certain procedural votes.” Or so said John McArdle, spokesman for Majority Leader Bruno, just a week ago. The Dems, for their part, believe “it can be used for organizational matters, for procedural matters, motions made on the floor as well as passage of legislation.” For now, the conflict is just hypothetical, but if it does come to pass, look for a fair amount of constitutional do-si-do.

The New York Sun noted another odd quirk in the New York constitution that might come into play with split control of the Lieutenant Governor’s and Governor’s seats: the Senate leader takes over anytime the governor is temporarily unable to perform his duties. In a provision that can best be understood as a relic of an era before air travel or the Acela, that includes any time the governor is out of the state. Paterson probably won’t be taking any long vacations anytime soon.

So what options do the Democrats have if Spitzer resigns to hold onto control of the Lieutenant Governor’s casting vote? The short answer is: very few. The state Constitution provides that “No election of a lieutenant-governor shall be had in any event except at the time of electing a governor,” meaning an election for lieutenant governor would only take place if Paterson resigned as governor, creating a vacancy in both seats.

That new election can only take place at a general election, and the vacancy must be created not less than three months before that general election. New York has general elections every year, but the three-month window means that Paterson would have to resign by early August of the calendar year in order to trigger a new election. In addition to the incredible risk involved in running a new gubernatorial election in the wake of a scandal, there’s also this wrinkle: during the three months before the election during which the governor’s chair is empty, guess who acts as governor? That’s right: Bruno.