NYSBA proposes constitutional amendment to reform NY gubernatorial succession

High-profile legal minds gather to discuss closing gaps in democracy for New York’s second-highest office

October 31, 2023 Rob Abruzzese

Richard Lewis, president of the New York State Bar Association.

Richard Lewis, president of the NYS Bar Association, had continuously advocated for changing a 100-plus year old law to allow lawyers to work out of state.
Photo courtesy of the NYSBA

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Legal scholars, politicians and former officials are calling into question the democratic integrity of New York State’s current approach to gubernatorial succession.

On Nov. 1, the New York State Bar Association (NYSBA) will hold a forum featuring eminent minds like former Gov. David Paterson and Fordham Law School Dean Emeritus John Feerick. The purpose is to discuss amending the state constitution to establish a transparent and democratically vetted process for gubernatorial succession and lieutenant governor appointments.

The call for change gains traction in the wake of the indictment and resignation of Lt. Gov. Brian Benjamin earlier this year. His successor, Antonio Delgado, was also unilaterally appointed by Gov. Kathy Hochul without legislative oversight.

Richard Lewis, president of the NYSBA, criticized the lack of democratic checks.

“The governor should not be the only person involved in choosing who sits a heartbeat away from the highest office in our state,” Lewis said. “Two lieutenant governors were appointed in the space of eight months, and neither were confirmed by the elected body of the people of New York. We don’t want history to repeat itself.”

The NYSBA issued a report on the subject in January that outlined a proposed amendment to the state constitution to address these gaps. The amendment would draw inspiration from the 25th Amendment to the U.S. Constitution, which provides a framework for presidential succession.

Under the NYSBA proposal, a specially formed committee would have the power to declare a governor unfit to serve, subject to confirmation by a two-thirds vote from both legislative houses. In the case of a vacant lieutenant governor position, the governor could appoint a successor, but the appointment would require confirmation by a majority vote in both houses of the Legislature.

The succession process has historically been murky. Paterson, who succeeded Eliot Spitzer in 2008, encountered legal challenges while appointing Richard Ravitch as lieutenant governor. The constitutionality of the move was upheld in court, but it exposed the inadequacies of New York’s existing laws.

The Fordham Law School Rule of Law Clinic had earlier pointed out these shortcomings in its August 2022 report, advocating for systemic change. This report and the NYSBA’s proposal aim to remedy what many see as a non-democratic process where power is concentrated in the hands of the executive.

Co-sponsored by more than a dozen legal and good government groups, the event marks a significant step toward ensuring that the process of selecting the state’s top officials is transparent and accountable to its citizens. The spotlight is now on whether these discussions will translate into actionable constitutional amendments that can be put to legislative and perhaps even public vote.