A New Way to Fire a Governor
Recent weeks have seen a relentless avalanche of reports of Governor Andrew Cuomo’s alleged sexual harassment of women, and his administration’s cover-up for political reasons of large numbers of Covid-19 deaths in the state’s nursing homes. In response, many of New York’s leading Democrats in national and state government have called for the governor’s immediate resignation. They argue that the seriousness of the charges, and their number, pervasiveness and credibility make it impossible for him to govern.
Among many others, U.S. Senators Chuck Schumer and Kirsten Gillibrand jointly concluded that resignation was required because the governor had “lost the confidence of his governing partners and the people of New York.” One example of a potentially crucial practical impact of this loss of confidence: with the April 1 state budget deadline in the offing, Senate Finance Committee chair Liz Kreuger told the New York Times that she “would no longer speak to Mr. Cuomo or two of his top aides, Melissa DeRosa and Linda Lacewell, because of their involvement in obscuring the death toll in nursing homes.”
“Votes of no confidence” are distinctive features of parliamentary systems of government, not separation of powers systems like ours. When a prime minister fails to win a parliamentary majority on a key vote – demonstrating lost confidence of his or her co-partisans – he or she has to resign. An election is then held, and a government with a new head is formed.
Not so for presidents and governors in the U.S., who are not chosen by a vote in the legislature, but by popular election for fixed terms. Cuomo made this precise point when he announced that he would not quit. “I’m not going to resign,” he said. “I was not elected by the politicians, I was elected by the people.” He later got some encouragement for this stand from the results of a Siena Poll released in mid-March. It showed that 50% of voters (“the people”) opposed his resignation; a little over a third (35%) were in favor.
In fact, the two processes currently available under the New York State Constitution for removing the governor are dominated by elected officials – legislators, prosecutors, judges – not by the people: impeachment and vacating office after conviction of a felony crime. (At the national level, Cuomo is also currently being investigated under federal law, with the FBI looking into whether he and his aides falsely reported nursing home deaths to the Justice Department; this is not addressed here.)
Impeachment: The state constitution and statutes provide for the possibility of impeachment “of all civil officers of the state, except justices of the peace, justices of justices’ courts, police justices, and their clerks” by a majority of those elected to the Assembly, for “willful and corrupt misconduct in office.” “Willful or corrupt misconduct” is not defined either in law or by experience.
If the governor is impeached, a trial will ensue on specified charges. The case for impeachment is made by a committee of up to nine designated assembly members before a “court for the trial of impeachments …composed of the president of the senate, the senators, or the major part of them, and the judges of the court of appeals, or the major part of them.” Conviction requires a two-thirds majority of the members present. If convicted, the governor is removed from office and might be barred from holding elected office in the future. Criminal indictment might follow.
Only one New York State governor has been impeached and convicted, and it was over 100 years ago. Democrat William Sultzer was removed because of irregularities in the use of campaign funds before he took office. According to author Jack O’Donnell, Sultzer is generally regarded as a victim of a falling out with the downstate Tammany Hall machine, during a brief period of his party’s control of the state legislature. More recently, the threat of Governor Elliot Spitzer’s impending impeachment by the Assembly was a factor in his resignation in the midst of a sex scandal in 2008.
Vacating Office as Result of Felony Conviction: Additionally the state constitution requires that “Provision shall be made by law for the removal for misconduct or malversation in office of all officers, except judicial, whose powers and duties are not local or legislative and who shall be elected at general election.” To implement this provision the legislature has specified that “conviction of a felony, or a crime involving a violation of his …[sic]… oath of office…” would require that an incumbent immediately vacate his or her position. Prosecution may be pursued by a District Attorney, or – but only upon request of the relevant department head – by the independently elected Attorney General. So ironically, to investigate allegations of sexual harassment by Governor Cuomo, Attorney General Letitia James had to obtain a request from Cuomo himself. Given his usual combativeness, the fact that James quickly achieved this — after a brief negotiation — is a measure of the extreme vulnerability of the governor’s circumstance.
Recall: In 19 states, but not in New York, the governor and other state and local elected officials may be fired by the people – or recalled – during the course of a term. Specific processes differ from state to state. But generally, a recall question is placed on the ballot by petition, with the number of signatures required to force a vote usually based on a percentage of the turnout in the last election for the office. The election of a replacement may be simultaneous, or at a following election – or the vacancy may be filled in accord with the state’s constitutional or statutory vacancy filling provisions.
In the nation’s current hyper-partisan political environment, recall is being used more frequently and systematically in an effort to change partisan majorities in closely divided state legislative houses. On the executive side, over two million Californians have signed a petition to recall Governor Gavin Newsom; an election seeking to remove and replace him will likely be held later this year. Writing in Governing Magazine this past September, Alan Greenblatt reported that “recalls against governors in states including Arizona, Louisiana, Michigan, Nevada and Wisconsin appear to be going nowhere.” High signature requirements in many states are a barrier. Generally governors facing recalls have enjoyed the support of their co-partisans and the California Newsom recall effort is spearheaded by Republicans. Over the course of U.S. history, only four gubernatorial recall efforts have made it to the ballot. Governors Lynn Frazier of North Dakota (1921) and Gray Davis of California (2003) were removed; Evan Meacham of Arizona (1988) was removed by impeachment before a scheduled recall election was held. Scott Walker Wisconsin (2012) survived the challenge and remained in office.
Three proposed constitutional amendments seeking to add a recall process in New York have been introduced by members of the GOP minorities in one or both legislative houses, some of whom were among the most tenacious state elected officials to establish and sustain the early focus on underreporting of nursing home deaths by the Cuomo administration. Only one of these bills has a sponsor in both houses (A04898/S00222). It requires the process to begin with a filing by a single registered voter of an intent to initiate a recall with the state Board of Elections that includes the reason for the proposed recall. The sufficiency of the reason given is not reviewable. Access to the ballot would require gathering a number of signatures equal to 20 percent of the vote for the office in the previous election within 90 days of the initial filing, with the number from each county constituting at least one percent of that county’s total vote for the office in that year. The recall election must be held 70 to 90 days from the certification by the Board of Elections that the petitioning has met legal requirements. If the incumbent is removed, the office is filled in accord with vacancy processes specified in law.
Vote of Confidence Joined with Recall: There are 545 positions for state elected officials in New York: governor, lieutenant governor, comptroller, attorney general, 150 Assembly members, 63 Senators and 328 Supreme Court Judges. What I propose here – to be clear, is not to address the current situation but to draw lessons from it to improve processes in the future, as of course this proposal will take some time to enact. If New York State decides to put in place a revised recall process for its elected officials similar to the ones proposed in the legislature this year, it might add an alternative way of initiating it that involves a “vote of confidence.”
This alternative envisioned version of the recall process would begin with the filing a bill of particulars with the state Board of Elections signed by 50 state elected officials. If a majority of all state elected officials (273) agreed to the need for a recall vote within 30 days of the circulation of this document by the Board of Elections, the matter would be put before the electorate served by this official at a special election held within 60 days of the date of its certification. The official would be removed if a majority of voters supported the recall. If the official is recalled, he or she would be prohibited from running again for state or local public office.
An important aspect of my proposed process is that it may be initiated only by those to whom it applies, creating a degree of self-interest that it not be abused. The inclusion of elected judges is also very important, as their long terms and purposeful removal by law, regulation and practice from ordinary daily politics provides a certain insulation from the immediate pressures and risks impacting more visible state elected officials serving shorter terms of office.
This proposal creates a process for a vote of confidence within the separation of powers system, while leaving with the voters the determination of the ultimate professional fate of the elected official under scrutiny. It is a process that should be added to the New York State Constitution.