By Alex Kasdan, Greta Kaufman, & Jolie Gentzkow
March 11, 2024, 3:30 PM

The line of succession to the New York governor’s office has been used twice in the past two decades—due to the resignations of Governor Eliot Spitzer in 2008 and Governor Andrew Cuomo in 2021. In both instances, the lieutenant-governor became governor.

Succession stopped at the first official in the line of succession in those situations.  But that was not the case in Arizona this past September.  Governor Katie Hobbs and her next two successors left the state, causing an antiquated constitutional provision to transfer power to the third official in the line of succession:  the state treasurer.  When the treasurer announced she was acting governor, it caused widespread confusion.  The treasurer prompted further tumult by refusing to recognize some of the governor’s appointees, barring them from important meetings.

Confusion and disruption are the last thing a state needs when its governor is not available to serve.  To ensure smooth transitions of power, New York’s gubernatorial line of succession must be reformed.  We identify a slate of necessary reforms in a new report from Fordham Law School’s Rule of Law Clinic. 

The first three successors to the governor’s office are established by the New York State Constitution:  the lieutenant-governor, followed by the temporary president of the Senate, and then the Assembly Speaker.  These legislative leaders should be in the line of succession, but the current law makes it possible for them to keep their position in the legislature while also serving as acting governor.  This creates concerns about the separation of powers between the executive and legislative branches.

A statute—the Defense Emergency Act of 1951—identifies eight executive agency heads as the successors following the successors in the constitution.  The Defense Emergency Act is a Cold War relic.  It can only be used as the result of an attack or natural disaster—even though it might be needed for other reasons.

Additionally, New York’s line of succession includes more officials than nearly any other state’s line.  It lists heads of departments that no longer exist.  Some of the other officials might be ill-equipped to serve as governor.  This outdated and convoluted line makes succession unworkable in some situations.  It must be streamlined to only include officials who are fit for office.

Democratic Legitimacy and Experience Matter

A key priority in succession planning is maintaining democratic legitimacy.  Have the successors been elected by the people of New York?  Do they have a mandate from the people?  These questions are of the utmost importance to ensure successors maintain credibility in the eyes of the public.

Additionally, potential successors should have the practical skills necessary to serve as governor.  Do they know how to work with the Legislature?  Do they have experience working on important policy initiatives, such as drafting the state budget and working with a wide breadth of government stakeholders?  Such expertise is of special consideration in evaluating successors’ fitness for New York’s top role.

Prioritizing These Principles Means Legislators

To prioritize democratic legitimacy and public policy expertise, New York should maintain its constitutional structure of having the Senate’s temporary president and the assembly speaker follow the lieutenant-governor in the line of succession.  These lawmakers have been elected to leadership positions in their respective chambers by their fellow lawmakers.  Furthermore, legislators are their constituents’ representatives in Albany.  They act as a proxy for the people and lend democratic legitimacy to the leaders’ roles.

Lawmakers also have extensive public policy experience that prepares them to assume gubernatorial power in a crisis.  Lawmakers, before serving in leadership, sit on eclectic committees and meet and are familiar with executive branch officials.  The legislative leaders are used to working with members of their chambers to get key bills passed. It is unlikely an executive branch official has worked so closely with such a variety of government levers and stakeholders.

But maintaining lawmakers in the line of succession creates separation of powers concerns because it could allow lawmakers to simultaneously exercise executive and legislative powers.  Therefore, the constitution should be amended so that those who serve as governor for more than 60 days are required to resign from their underlying position or step down as governor.  For this 60-day period while they are serving as governor, they should not be able to exercise any legislative powers.  This is consistent with the New York State Bar Association’s recommendations on gubernatorial succession.

Updating the Line of Succession

Some of the executive offices in the current statutory line of succession are defunct, creating a serious gap in New York’s succession framework.  A reformed succession law should remove these positions, and clarify that it is applicable in cases beyond an “attack or natural disaster,” to eliminate ambiguities and ensure it encompasses all succession scenarios.

Given the governor’s administrative and budgetary responsibilities, the comptroller should be the next successor after the legislative leaders.  The comptroller’s familiarity with these areas makes them prepared to smoothly take up the duties of the governor and run the state effectively with less of a learning curve than other potential successors.

The fact that the comptroller is elected statewide lends the role the necessary democratic legitimacy.  While the comptroller was elected for a more particularized job than the governor, their expertise in the fiscal state provides them a basic familiarity with many of the major aspects of the governor’s role.

The attorney general should be next in the line after the comptroller.  The attorney general is also elected statewide, and as the head of the Department of Law, they are familiar with how state government works and a wide range of policy issues that are relevant to serving as governor.

The attorney general’s investigative power weighs against placing them higher on the list.  The prospect of an attorney general who was investigating the governor succeeding to the governor’s office could create a distraction in a challenging time for the state.  Some members of the public might not accept it as legitimate.  This concern is heightened by the fact that the individuals who serve as attorney general frequently have political ambitions aimed at the governor’s office.

The final official in the line of succession should be the secretary of state.  Appointed by the governor and confirmed by the Senate, the secretary of state has dual validation by the executive and legislative branches. Past officeholders have had significant experience with local, state, and private sector stakeholders before becoming secretary.  Moreover, the secretary of state’s inclusion would also probably ensure that the successor would be from the same political party as the governor.

Shortening the Line of Succession

New York has one of the longest lines of succession in the country, and for no good reason. Lieutenant-governors can be replaced, and in a crisis legislative chambers can elect new leaders to be governors-in-waiting.  The line must be reformed to only include successors with inherent democratic legitimacy and relevant policy expertise.  This will ensure a functional line of succession.