Extends deadline to June 1st for calling special elections to fill vacancies in the offices of state senator and member of assembly

Summary of specific provisions

Public Officers Law would be amended to extend the regular cutoff for calling special elections to fill vacancies in the offices of state senators and members of assembly to June 1. It also would provide for elections to fill vacancies in those offices and in the office of representative in congress at general elections.

Justification

At present, if a vacancy in the office of state senator or in the office of member of assembly occurs on or after April 1 of the last year of the term of office, it cannot be filled by special election unless a special session is called for later on. This provision dates from 1896, when the legislature adjourned or recessed before April 1 of each year-the end of the fiscal year. Longer legislature sessions are more common today and the effect of this provision of law is to deny representation to senate and assembly districts where vacancies occur on or after said April 1. Hence, the cutoff for a vacancy to occur which would enable a special election to be called should be shifted to June 1. Moreover, if a vacancy were to occur after June 1 of the last year of the term and no special session is held, the residents of the affected district should at least be able to elect someone at the impending general election to fill the vacancy for the remainder of the term and not be further deprived of representation. The reason for this is because the legislature at times sits after the general election to consider matters not dealt with prior to having adjourned earlier in the year. Also, the residents of the' affected district are deprived of the provision of constituent services normally provided by a state legislator. In such event what would occur is that the general election ballot would include both an election for the term of office to commence January 1 of the next year and an election to fill the vacant term. (Election Law section 7-108(2) already provides that the ballots denote the separate terms of office where the same office is to be voted for). Subdivision 4 of section 42 of the Public Officers Law was the subject of litigation in 2009 as a result of there having been a vacancy created in April due to the removal from office of the incumbent member of assembly. In Matter of Barron v. Board of Elections in the City of New York, 11 N.Y.3d 745, the Court of Appeals held that subdivision 4 of section 42 carved out an exception to subdivision 1 's provision requiring an election to fill a vacancy to be held at the general.election. The court then held that since the word" office" was used in the last sentence of subdivision 4, it was not intended that an election be held to fill a vacancy at the

general election. By changing" office" to "vacancy," this decision would be legislatively overruled. Further, the court's decision can be construed as prohibiting an election to fill a legislative vacancy even in the first year of the term of office, if no special election is called. Such a construction derives from the court's clear statement that subdivision 1 does not apply to the office of member of assembly. If that is so, then it does not apply to state senator and representative in congress either. Since subdivision 4 does not permit a vacancy to be filled at general election, according to the court, then no election to fill the vacancy can be held at the general election, even in the first year of the term. This is contrary to present practice which is to fill vacancies in representative in congress, state senator, and member of assembly occurring in the first year of the term at the general election held in that year. This proposed amendment would clarify that an election to fill a vacancy shall be held at the next general election, and it would take place whether the vacancy occurred in the first year or the second year of the term.

Prior legislative history

A.7372/S.3686 (2010) Held in Investigations & Government Operations

Fiscal implications

Minimal, as boards of election would be required to add but one more row on ballots whenever an election to fill a vacancy must be conducted at the general election.

Effective date

This act shall take effect immediately.