Why so many vacant seats? 9 huge questions about special elections

Over 1 million New Yorkers may be under-represented in the state Legislature for the foreseeable future. There are currently 11 vacant seats – nine in the Assembly and two in the state Senate – due to legislators leaving office after being elected to different state and local positions in November. With the indictment of Assemblywoman Pamela Harris on Tuesday, her potential resignation could increase the number of vacant seats to 12.

Gov. Andrew Cuomo has not said when special elections for these seats might occur, leaving voters in those districts without a timeline for when they will be represented again in Albany. Here are answers to the most pressing questions about these special elections, including what state law says about filling vacant seats and the effect vacant seats may have on the political balance of the state Legislature.

How many people in New York live in districts with vacant seats?

Nearly 1.8 million residents live in districts without a current Assembly member or state senator, according to a fact sheet from Blair Horner, executive director of the New York Public Interest Research Group. Each of the nine vacant Assembly districts (5, 10, 17, 39, 74, 80, 102, 107 and 142) represent more than 120,000 people. State Senate districts 32 and 37, which each contain more than 300,000 residents, are currently without state senators.

Is the governor required to call a special election?

No. Cuomo has the sole power to call a special election through a proclamation, according to election law attorney Sarah Steiner. By contrast, in New York City, the mayor is required to proclaim the date of a special election within three days of a vacancy.

“The contrast is stark, that the governor has control over this,” Steiner said, comparing state law to New York City law.

Cuomo can be challenged in court if he does not proclaim an election when there is a vacant congressional seat. In 2015, a federal judge ruled that the governor had to set a special election date after Rep. Michael Grimm resigned. Steiner said Cuomo was obliged to set a special election date for a congressional seat under federal law, but state law allows the governor to set one for a state legislative vacancy at his discretion, so a court challenge might not be successful.

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How long after a special election is proclaimed must an election be held?

Section 42 of the New York Public Officers Law states that a special election “shall be not less than seventy nor more than eighty days from the date of the proclamation.”

What happens if a special election is not called?

The seat remains vacant through the remainder of the legislative term. In November’s general election, citizens would vote to choose a new legislator who would be seated in January, unless the state Legislature decided to seat the winning candidates earlier.

Although a special election has not been called, Westchester County Democratic leaders are acting on the assumption that one will be proclaimed in Senate District 37. Party leaders plan to meet Tuesday night for a mini-convention to designate a candidate for the state Senate seat vacated by George Latimer, who was elected Westchester County executive. Which brings us, and the optimistic Westchester Democrats, to the next question …

What happens if a candidate is chosen by county party leaders as their nominee for a special election, but no special election is called?

Nothing. “They would have designated somebody for their endorsement, but there never would be the election, so nothing would happen,” Steiner said. The party favorite would have to slum it in the official primary in September.

What are the arguments in favor of calling special elections?

According to Horner, there are 1.8 million reasons to call special elections for the vacant seats.

“We live in a representative democracy, and the governor and the Legislature are going to make a decision on $160 billion-plus of public monies,” he said, referring to the state budget. “We think everyone should have a seat at the table through their representatives, and that’s not going to happen if there aren’t specials called soon.”

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What are the arguments against calling special elections?

On Dec. 13, Cuomo told reporters that he would make the decision to hold special elections in January. However, he also indicated that he may wait until after the state budget deadline of March 31.

“Because you need to get a budget done also, right? And some would argue that politicizing the budget isn’t the best idea,” Cuomo said, suggesting that holding special elections would distract from the budget negotiations.

Steiner referred to the delicate balance of power in the state Senate, where Republicans hold a slight majority due to the Independent Democratic Conference, a group of eight breakaway Democrats who caucus with the Republicans, and Sen. Simcha Felder, who – although he is not allied with the IDC – also caucuses with the Republicans. Latimer’s seat is considered to be contested, Horner said, and could fall into Republican hands.

If the special elections turn into a fight over the majority, with Cuomo perhaps forced to take a more bullish stance on Democrats gaining seats in the state Senate, it could upset his negotiations with the state Legislature.

“There’s certainly no benefit for millions of people to have no person representing them in the Legislature,” Steiner said. “But there may be a perceived benefit of calling or not calling an election, depending on who you are, and whether you want to control the Legislature in a certain way.”

There is also the question of cost, said election lawyer Jerry Goldfeder, special counsel for Stroock.

“There’s a school of thought that says special elections can be costly if they’re on their own day as opposed to a day when there are other elections going on,” he said, due to the costs of opening and staffing polling places. Goldfeder also referred to a New York Post editorial that denounced special elections for circumventing the primary process, allowing county leaders to choose their nominees without input from voters.

Are there precedents for not holding special elections?

Yes. In 2014, Cuomo chose not to call special elections for 10 seats that were open at the beginning of the year, and another that was vacated later in the year, leaving them vacant through the general election. That year, Cuomo cited the high cost as a reason not to hold special elections.

When are the (non-special) election days scheduled for 2018?

The federal primary is on June 26. The state and local primary is on Sept. 11. The general election for federal, state and local races is on Nov. 6.