Is Paterson’s NY-29 Special Election Legal?

posted at 11:28 am on May 14, 2010 by Jazz Shaw

Yesterday I brought you up to date on New York Governor David Paterson’s plan to shield Democratic political newcomer Matt Zeller from facing a costly and potentially bruising political primary by scheduling a special election this year on the same day as the general election, November 2. It didn’t take long for that curious announcement to raise some controversy and the press contacted the state Board of Elections to ask them if it was even legal. The result was less than conclusive.

There’s a “legal dispute” among commissioners at the state Board of Elections as to whether Gov. David Paterson can proclaim a special election on election day in the 29th Congressional District, as he promised to do Tuesday.

“The board is not of one voice. I don’t think the commissioners would agree on any interpretation,” said Board spokesman John Conklin. “It’s the other camp’s argument that the governor probably doesn’t have the authority to call the election.”

The board is governed by four commissioners — two Republicans and two Democrats — that are split, with Republicans claiming a special would be illegal.

There’s a surprise for you. At issue is a pair of arcane passages in the state’s election laws providing for the filling of vacant offices. Before we get to the details, here’s the first portion of the statute in question.

4. A special election shall not be held to fill a vacancy in the office of a representative in congress unless such vacancy occurs on or before the first day of July of the last year of the term of office, or unless it occurs thereafter and a special session of congress is called to meet before the next general election, or be called after September nineteenth of such year; nor to fill a vacancy in the office of state senator or in the office of member of assembly, unless the vacancy occurs before the first day of April of the last year of the term of office, or unless the vacancy occurs in either such office of senator or member of assembly after such first day of April and a special session of the legislature be called to meet between such first day of April and the next general election or be called after September nineteenth in such year. If a special election to fill an office shall not be held as required by law, the office shall be filled at the next general election.

The run on sentence and the odd placement of the last comma in the first bold phrase prior to “or be called after September nineteenth of such year” makes reading the statute problematic. I called our campaign attorney who specializes in election law about this and, as politely as possible, he told me that the law hadn’t been crafted terribly well.

One problem with it is that the law’s authors failed to anticipate the possibility that a governor would ever wait such a long time to make a decision. They apparently felt that, upon the office becoming vacant, the chief executive would make a decision to either move forward promptly or wait until the next general election.

The second issue comes with that troubling final clause I referenced above. The Democrats seem to feel that it doesn’t apply as long as the opening occurs prior to the first day of July. The Republicans clearly feel that the final phrase negates the initial clause and prohibits the official “call” or announcement of the election any time after September 19. Here’s where a different clause of the law – subsection 3 – comes in to play.

… the governor may in his discretion make proclamation of a special election to fill such office, specifying the district or county in which the election is to be held, and the day thereof, which shall be not less than thirty nor more than forty days from the date of the proclamation.

If, as read in one interpretation, the election can be “called” no later than September 19, the election may not take place more than 40 days hence. That puts us at Oct. 29, still four days shy of the general election.

No matter how this shakes out, one thing should be clear. This law needs to be revised to provide a defined window for how long the Governor has to call the election after the date that such an office goes vacant. Don’t be surprised is there is yet another court challenge coming in this case. Stay tuned.

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