In June of 2009 the government of the State of New York came to a shuddering halt. (1) Two candidates for Temporary President of the Senate, the office that represents party control, commanded equal votes for the position. (2) The tie-breaking vote would ordinarily have been cast by the lieutenant-governor, but due to the resignation of Eliot Spitzer and elevation of David Paterson, that position was vacant. (3) The uncertainty as to who held the position paralyzed Senate operations and left open a very real question as to who would succeed to the governorship should something happen to then-Governor Paterson. (4) The delay caused by the impasse cost state and local governments $2.9 billion. (5) The deadlock prompted Paterson to appoint Richard Ravitch to lieutenant-governor, marking the first time in New York history that any governor had attempted to fill that post despite numerous historical vacancies. (6) Litigation as to the propriety of the appointment immediately ensued, eventually resulting in the New York Court of Appeals upholding the legitimacy of the appointment. (7) Had the situation not resolved itself politically on the day of the appointment, (8) the deadlock could have continued for more than an additional two months during the pendency of the appeal. (9)
Although the crisis was in no small measure a result of the fact that "New York's [legislature] was, by far, the most dysfunctional legislature in the nation," (10) the impasse could have been solved in a day had there been an effective constitutional mechanism for succession to the office of lieutenant-governor in the case of a vacancy. The absence of such a mechanism led to unprecedented gubernatorial action and the New York Court of Appeals's authorization, by a slim majority and in a decision that has been heavily criticized, (11) of Ravitch's appointment via a statutory catchall provision typically used only for minor officials. (12) That decision also left in place many of the structural problems that allowed the crisis to come to a head in the first place, such as when a replacement lieutenant-governor must be appointed.
This article is an attempt to find a solution to the problem of lieutenant gubernatorial succession in New York. Part II will discuss the problems created by allowing appointment pursuant to Public Officers Law section 43 and the structural issues that remain unresolved even with the present judicially approved method of appointment. Part III will consider several alternative methods of gubernatorial succession and to filling a vacancy in the office of lieutenant-governor. It will discuss whether any of those approaches would suffice to meet the policy goals of the lieutenant-governor's office in New York's constitutional structure. Part IV will offer a potential solution, which avoids the risk of legislative gridlock and preserves some electoral input into which candidates may be chosen to succeed to the office of lieutenant-governor.
II. THE UNACCEPTABLE SKELOS SOLUTION
The Court of Appeals's decision in Skelos v. Paterson removes any electoral check from those selected to fill the position of lieutenant-governor and leaves several structural problems unresolved. Chief Judge Lippman's opinion recognized that the Skelos solution is not necessarily the best solution to the issue of succession, and held only that the present constitutional and statutory scheme permits the governor to appoint a lieutenant-governor in case of a vacancy. (13) Three major flaws with the present structure are discussed below.
A. Appointment Without Limitations Violates the Elective Principle
The present structure permits the possibility that an entirely unelected person could succeed to the office of governor without ever facing any elective check or second-hand elective scrutiny. Appointment through the mechanism of Public Officers Law section 43 does not permit any check, either by ratification or special election, on the authority of the governor to choose whomever he or she likes for the position. …