One of my missions on this website is to give insight on how New York’s Election law works. With the announcement of retirements of County Court Judge Steven Dougherty earlier this year and City of Syracuse 5th district common councilor Joseph Driscoll we have not just one but two rare instances where a vacancy occurs later in the political calendar. This creates a rare scenario where party committees get not only direct access, but more power to select the replacement than the public itself.
Both Judge Dougherty and Councilor Driscoll announced their retirements early but have an effective date in July. Judge Dougherty announced his pending retirement in Mid-April effective July 31, 2022. Councilor Driscoll announced his intention to fill a job managing the I81 redevelopment process last month. This week he submitted his resignation letter with an effective date of July 25th. According to the NYS Comptroller, “(w)hen one resigns from public office, a vacancy does not exist until the effective date of the resignation and the filling of a vacancy cannot take place until the vacancy actually exists.” Op. State Compt. 82-30. That means the vacancy does not occur when the announcement is made, but the effective date of the retirement.
If the effective dates of the retirements were more than 7 days before the end of the designating petition period than the public would have a great deal more to say in the eventual replacement. In that scenario county parties could nominate candidates for their committee members to walk petitions. However, those candidates could be challenged in a primary by opposing members of the party. In addition, there would be an opportunity for Independent Nominating petitions for non-party candidates to seek the positions.
Since April 7th, 2022 was the last day in the New York Political Calendar for filing of designating petitions, both the retirement announcements and effective dates for both positions were well beyond the statutory deadline to be eligible for the June primary ballot. The August primary is only for Senate and Congress in 2022 and does not play a factor. However, since the retirement effective dates are before August 8th the election for the vacancy occurs at the General Election (NYS Election Law 4-108) this year, November 8, 2022. So, the question now remains, if there is an election this year for an office but candidates cannot get on the ballot via petition, how do candidates get on the ballot?
Here we turn to NYS Election Law 6-116 which says ” “A party nomination of a candidate for election to fill a vacancy in an elective office required to be filled at the next general election, occurring after seven days before the last day for circulating designating petitions or after the holding of the meeting or convention to nominate or designate candidates for such, shall be made, after the day of the primary election, by a majority vote of a quorum of the state committee if the vacancy occurs in an office to be filled by all voters of the state, and otherwise by a majority vote of a quorum of the members of a county committee or committees last elected in the political subdivision in which such vacancy is to be filled, or by a majority of such other committee as the rules of the party may provide. A certificate of nomination shall be filed as provided for herein.”
This means the four established parties, Democrats, Republicans, Conservatives, and Working Families, can file certificate of nominations to put a candidate on the ballot. Per Election Law 6-158 (6): “a certificate of nomination for an office which becomes vacant after the seventh day preceding such primary election shall be filed not later than thirty days after the primary election or ten days after the creation of such vacancy, whichever is later(.)”. Since the effective dates of both resignations fall in late July the county committees could meet once at the same time for both nominations, vote and appoint candidates.
Sounds simple enough right? Well not quite. Party Committees are elected on a 2-year basis. This election happens at the June primary election. However, New York Election Law 2-112b says “Every county committee shall meet no earlier than September seventeenth and no later than October sixth following the June primary. Until such organization meeting, the existing county committee shall exercise all legal authority. Upon the conclusion of such organization meeting, the new county committee shall assume all legal authority vested in the previously organized county committee.” This means that even though the replacement meeting happens after the June primary, members of the county committee that lost primaries (as we say in the Town of Pompey this year) or did not walk petitions will be eligible to vote.
This is especially important since if it is a contested nomination as the only vehicle for ballot access is the party nomination. There are no designating petitions, thus no primary where voters can weigh in on the party choice. Likewise, there are no independent petitions since the last day for filing those were May 31, 2022. The party committee have the final, and only say, who appears on the ballot. Thus, a committee member who may think they are not eligible will be able to vote on these vacancies.
The timing of these nominations will play differently for each position. The NYS Constitution Section 21 A. says “Per Election Law 6-158 (6): “When a vacancy shall occur, otherwise than by expiration of term, in the office of justice of the supreme court, of judge of the county court, of judge of the surrogate’s court or judge of the family court outside the city of New York, it shall be filled for a full term at the next general election held not less than three months after such vacancy occurs” Thus the party nominees at the General election will take office January 1, 2023 get a full ten year term expiring December 31, 2032.
The 5th Common Council seat though will not be elected for a full term. The person successful at the November general election will only fill out the remaining term. Thus, the person who is elected in November will take office on January 1, 2023, with a term expiring December 31, 2023. The next term will be filled in the normal process. Party nominations will happen in February, petitions walked in March and filed in April, primary election in June, and general election in November.
In both the County Court and the 5th Common Council there will be a period of time where the seat will be left vacant. The process for filling these vacancies is different for each. NYS Constitution section 21 A gives the answer on this “until the vacancy shall be so filled, the governor by and with the advice and consent of the senate, if the senate shall be in session, or, if the senate not be in session, the governor may fill such vacancy by an appointment which shall continue until and including the last day of December next after the election at which the vacancy shall be filled.”. Since it is likely the NYS Senate will not be in session in late July as it has closed for the year, the Governor could appoint someone to fill the term. Past practice though the Governor has let the term go unfilled until the new term is filled by an election.
In the case of the City of Syracuse Common Council Syracuse Municipal law Section 3-103 sec 2a states “In case of a vacancy in the office of district councilor, except by expiration of his term, the remaining members of the council by majority vote shall appoint a qualified elector of the district to fill the same until the first day of January following the next election at which the vacancy can be filled, as provided by law.”. The Common Council can fill the vacancy of the fifth common council seat by majority vote and that person will serve until December 31, 2023. Timing though once again becomes an issue.
Under a reform passed in 2019 the Syracuse Common Council must undergo an extensive search for resumes and interview process. This reform will take time and the earliest the Common Council will be able to vote on a replacement will be their next scheduled meeting after the vacancy, August 22, 2022. This will be well after the 10-day deadline that County Parties must act to put a candidate on the ballot. As I stated earlier the only ballot access method is via the county party nomination. Thus, if the council chooses a candidate other than one endorsed by the four designating parties, that councilor will be able to serve until December 21, 2022, however, will be assured to leave office after that as they will not have access to the general election.
Since the Common Council is comprised of all Democrats, and the 5th Common Council district is one of the most Democratic council district s in the city it was likely a Democrat would be appointed. This will set up a likely scenario where the County Committee nominee will have a significant advantage in the council choice. Ironically, the reform put in place in 2019 was a direct result of criticism the council received when they held open an At-large seat and selected the county party nominee. The reform is well intentioned, and something I supported (and still do), but the timing of the vacancy puts the common council in a comparable situation to 2019 where they appointed Ronnie White, the OCDC nominee. However, this time voters have no say in the party choice as there is no primary.
Finally, another wrinkle is that this vacancy occurs while Syracuse is undergoing redistricting for their five common council districts. The Syracuse Independent Redistricting Commission has been working for nearly a year on new maps for the five common council districts. They have just released their final map they plan to submit to the common council. That map alters the fifth common council district essentially breaking it up into two different districts keeping Eastwood in the new district five along with Sedgewick and Lincoln hill neighborhoods. The traditional east side and university is united together. This map improves the districts for the residents of those neighborhoods.
Both the County Committee and Common Council will have to factor in candidate residences not only on the existing map, but politically on the new map. A candidate could be selected that in 2023 will no longer reside in the new district five. This could either set up a primary or create an open seat in 2023. Neither of which may be avoidable, but it is a factor the Common Council and County Committees will no doubt have in mind when selecting. By the way, the date the Common Council will be voting on the new map, August 22, 2022, the same date they will be voting to replace the fifth common council district vacancy.
It will most definitely be an adventure watching these vacancies get filled over the next 2 months, let alone the elections in November. The tapestry of New York Election law weaves a tangled web when these late vacancies occur. I do not really see any reforms that could change these scenarios for the future. It is too onerous to hold primary elections for party nominations so close to a general election or have another independent nominating period. Luckily, these vacancies are exceedingly rare. Unluckily for voter comprehension we have two this year in Onondaga County.
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Dustin M. Czarny 