New York State Bar Association Urges NY to Amend Constitution To Set Rules for Gubernatorial Succession

By Jennifer Andrus

New York State Bar Association Urges NY to Amend Constitution To Set Rules for Gubernatorial Succession

1.20.2023

By Jennifer Andrus

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The New York State Bar Association is proposing that New York State amend the Constitution to establish a procedure to ensure that a governor is fit to serve and establish a mechanism for succession.

The House of Delegates, the association’s governing body, approved a report urging the government to amend the Constitution to ensure an orderly transition of power if a governor is incompetent or unable to serve. The process would include enshrining a procedure in the state Constitution similar to the 25th Amendment to the U.S. Constitution.

“The peaceful transfer of power is at the foundation of democracy. Recent events remind us we cannot take this for granted, “said New York State Bar Association President Sherry Levin Wallach.  “These proposed changes to our state Constitution are designed to provide clarity and direction for filling a vacancy in the chief executive position. Without it, we are vulnerable to political power plays and chaos.”

When a Governor Is Unable to Serve

The association’s Committee on the State Constitution studied the issue and presented a report  to the House of Delegates. The recommendations include amending the Constitution to establish a Committee on Gubernatorial Disability that would determine if a governor was unfit to serve. The committee would include the lieutenant governor, attorney general, comptroller, and six Cabinet members.

The committee would be able to determine that a governor is unfit to serve by a simple majority and forward the matter to the state Legislature. The declaration of removal must then pass the Assembly and state Senate by a two-thirds vote.

“New York should no longer ignore the potential crisis that would develop should a governor lack the physical or mental competence to continue to serve as governor,” said Christopher Bopst, the chair of the association’s committee that studied the issue. “A procedure must be adopted to provide for an orderly determination of inability and transfer of power.”

The State Legislature Would Confirm Lieutenant Governor Nominees

If there is a lieutenant governor vacancy, the governor would select a nominee who would need to be confirmed by a majority of each house of the Legislature. A timeline would be established to ensure the process is followed. Currently, the governor can appoint a lieutenant governor without legislative oversight.

When Kathy Hochul became governor, she appointed two lieutenant governors in eight months, neither of whom were vetted by the Legislature.

“Having two lieutenant governors chosen exclusively by the governor within such a brief period of time has reignited concerns over the process,” said Alan Rothstein, the chair of the committee’s Lieutenant Governor Subcommittee. “Is this the best way to select a person who is a heartbeat from the governorship?”

An amendment to the state Constitution is a long process involving passage of the same amendment by both houses of the state Legislature in two consecutive legislative sessions. Following passage, the amendment must be approved by the voters in a statewide referendum.

The House of Delegates also recommended that:

  • If the Senate president pro tempore or the Assembly speaker became governor, the legislator must resign from the Legislature.
  • If the succession to governor by a legislator is temporary due to impeachment or short-term inability to serve, the legislator need not relinquish the office, but cannot exercise powers or duties of the legislative office.
  • The power of the governor should no longer be transferred to the lieutenant governor if the governor is out of state.

“Our committee has created a roadmap for the state Legislature to consider and it creates an order of succession complete with checks and balances,” Bopst said. “We urge the Legislature to pass these amendments during the current legislative session.”

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