By Fahad Naeem
“It’s not the hand that signs the laws that holds the destiny of America. It’s the hand that casts the ballot.” The power given to voters to choose who gets elected to office is a vast and important right to protect. The people vote for candidates that best represent the interests and perform the duties required of their offices. However, states can steal that power from citizens by allowing state legislators or the governor to appoint officers for vacant positions, as New York had done in its state constitution. New York’s constitution effectively deprived voters of the ability to elect a candidate of their choice. The Attorney General and Comptroller positions can be occupied from several months to several years without any check or say by the voters. That provision was inconsistent with the goal articulated by New York’s constitution in Article 1 Section 1 which states: “No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof . . .”
Not allowing citizens to vote for the vacant positions of Attorney General and Comptroller disenfranchises all voters and deprives them of the right to vote for government actors that can have a profound impact on the inner and outer workings of the executive branch. Senator Griffo aptly stated that: “Our attorney general, comptroller and U.S. Senators are some of the most important positions in the state. But voters are shut out of the process to pick their successor when those leaders leave their posts early.” The voice of the people is not heard when state legislatures decide and make decisions without any input from their constituents. Also, the New York bar states in a 2008 report concerning elections that there are several more concerns that occur when legislators appoint executive office positions, including a separation of powers issue and a possibility of unresolvable partisan differences.
Fortunately, New York has begun to take adequate steps to give power back to the people. In June 2014, the New York State Senate passed legislation, which approved special elections for Attorney General and Comptroller vacancies by amending the state’s constitution. The legislation allows the governor to call special elections should an early vacancy be created by retirement, sickness, or sudden death. This is a big step for New York. The state seems to break new ground with this legislation. A scan through various state constitutions and statutes reveals that most states require a governor to elect a replacement for an Attorney General vacancy created by retirement or illness. The New York constitutional amendment continues and strengthens the trend of states that are giving more power to the people by letting them vote on candidates who control important functions in the state’s executive branch. Moreover, the legislation creates more consistency between the stated goals in the New York constitution and the spirit of the 14th and 15th Amendments. This development merits approval and should be modeled by states who are actively trying to promote more progressive state election laws.
While this legislation does correct a great harm to voting rights, New York has not corrected all the issues with legislatively appointed executive positions. The legislation passed by the New York senate does not create a special election for the vacancy of Lieutenant Governor. Article 4 Section 6 of the New York Constitution states that the vacancy must be filled in by a “Temporary President of the Senate.” The New York Bar argues that the state’s constitution is unclear and vague on whether the temporary president must give up their senate seat while acting as president. The New York State Senate should take great care in correcting this vagueness because it carries the potential for real harm and creates a potentially large separation of powers issue.
Looking forward, New York continues to be on the forefront of creating legislation and solving voting problems in the state. The governor and the senate continue to amend, modify, and create new legislation to make voting easier. These measures should help to create better and more consistent scheme of laws the protect voter’s rights and breathe the spirit of the Constitution. More importantly, the voters gain a larger voice and have a greater ability to control their destiny through the polls.