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Reforms for Filling Vacancies in the U.S. Senate and House of Representatives
Nora Donnelly, Alexa Green, and Lea Vallone
Legislative vacancies are an often-overlooked area in democratic accountability and election administration discourse. While the Seventeenth Amendment and Article I, Section 2 of the Constitution set a general structure for filling federal vacancies, much of the process is left to the states’ discretion. Current practice consists of fragmented policy and a range of practices for filling vacancies in the U.S. House of Representatives and Senate. Data shows a few key areas of concern in existing practice. First, the length of House vacancies has been increasing, leaving constituencies unrepresented for longer periods of time. Second, individuals appointed by governors to fill Senate vacancies on an interim basis enjoy a significant incumbency advantage. These issues are not adequately addressed by the wide variety of existing processes that have been left unexamined for far too long.
This Report recommends reforms to states’ policies for filling federal legislative vacancies. It begins by examining the history and reasons for the current landscape of federal legislative vacancy policy and pulls from this background key principles to guide the Report’s reforms—democratic legitimacy, the exercise of executive power, quality of representation, and apprehension towards political gamesmanship. It then expands on the existing practice in the states, and the data available on these policies. The Report then proposes three sets of reforms to address the issues identified in existing practice, and recommends states adopt these by statute, or when necessary, state constitutional amendments.
States should implement the following reforms: (1) Eliminate special election primaries and instead hold open general elections, ideally using ranked choice voting, to shorten the length of time a seat sits open; (2) Mandate special elections within ninety days of a vacancy, while still allowing special elections to be held concurrent with regularly scheduled general elections when vacancies occur within 150 days of a regularly scheduled election. Additionally, states should authorize the special election process to begin when a resignation is announced, rather than waiting until the seat is empty; (3) Adopt a norm of selecting Senate appointees who will act as caretakers, rather than individuals who seek appointment to gain an advantage in the subsequent election.
These reforms would promote democratic values, especially democratic legitimacy, fair exercise of executive power, quality representation, and apprehension towards political gamesmanship, while still accounting for practical concerns related to administrability of special elections.
Date: October 2024
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State Laws for Administering Presidential Elections: Recommendations and Considerations for Reform
Fordham Law School Rule of Law Clinic, Seamus Crowley, Molly Johnston, Alexander Paget, and William Russell
States have a critical role in administering presidential elections, and there are currently a range of emergent challenges that they must confront. In this report, the Fordham Law School Rule of Law Clinic outlines reform recommendations and considerations to assist states in crafting their presidential election administration policies in key areas, including (1) implementation of provisions of the federal Electoral Count Reform Act; (2) preparation for natural or human-caused election disruptions; (3) prevention of faithless and fake electors; (4) accommodation of third-party and independent candidates; and (5) preparation for implementation of the National Popular Vote Interstate Compact.
Date: July 2024
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Who’s Next? Proposals to Reform New York’s Gubernatorial Line of Succession
Fordham Law School Rule of Law Clinic, Jolie Gentzkow, Alex Kasdan, and Greta Kaufman
A workable line of succession to the governor's office is necessary to maintain stable leadership in a variety of possible scenarios. New York's line of succession is flawed in several ways. Some of the weaknesses stem from the designation of lawmakers as the next successors after the lieutenant governor, which raises separation of powers concerns. Additionally, there are significant ambiguities in the constitutional and statutory succession provisions. And the statutory line of succession statute is impossible to use in many situations because it only covers cases where the governor's office is "vacant" due to "an attack or natural or peacetime disaster." In this report, the Fordham Law School Rule of Law Clinic recommends a slate of reforms to strengthen New York's gubernatorial line of succession.
Date: December 2023
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Reforming the New York Lieutenant Governor Replacement Process: A Policy Recommendation
Fordham Law School Rule of Law Clinic, Spencer Shih, Chase Cooper, and Harry Solomon
New York's governor has unilateral power to fill vacancies in the lieutenant governor's office. This unchecked power is undemocratic and risks elevating unqualified officials. In this report, the Fordham Law School Rule of Law Clinic recommends reforming the lieutenant governor replacement process. Building on a recommendation advanced by the New York State Bar Association, the clinic recommends providing the Legislature an opportunity to confirm the governor's nominees. If the Legislature rejects two nominations, the governor could choose a new lieutenant governor from among a group of elected and Senate-confirmed officials.
Date: December 2023
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Gubernatorial Inability and Absence in the New York Constitution: Proposals and Arguments for Reform
Fordham Law School Rule of Law Clinic, Antonia Spano, and Liam Turner
The New York Constitution's provisions related to gubernatorial inability and absence from the state are in need of reform. In this report, the Fordham Law School Rule of Law Clinic advances recommendations for addressing the vulnerabilities created by both provisions. The absence provision, which transfers power whenever the governor leaves the state, can cause confusion, cast doubt on the legality of gubernatorial actions, prompt rival politicians to simultaneously claim to be governor, and undermine confidence in the rule of law. The constitution's inability provision provides for transfers of power when the governor is "unable," but does not define what it means to be unable or provide a way to declare a governor unable. The Rule of Law Clinic recommends procedures for voluntary and involuntary inability declarations.
Date: December 2023
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Voting Rights and the Electoral Process: Resolving Representation Issues Due to Felony Disenfranchisement and Prison Gerrymandering
Andrew Calabrese, Tim Gordon, and Tianyi Lu
Date: May 2023
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Third Parties and the Electoral College: How Ranked Choice Voting Can Stop the Third-Party Disruptor Effect
Hillary Bendert, Jacqueline Hayes, and Kevin Ruane
Date: May 2023
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Presidential Election Disruptions: Balancing the Rule of Law and Emergency Response
Jason D'Andrea, Sonia Montejano, and Matthew Vaughan
Date: May 2023
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Planning for Emerging Threats: Rethinking the Presidential Line of Succession
Fordham Law School Rule of Law Clinic, Gregory Ascher, Myrna Nakhla, and Colin Shea
From the COVID-19 pandemic to the Ukraine war, recent events have highlighted possible threats to the continuity of presidential leadership. The presidential line of succession in the Presidential Succession Act of 1947 has several flaws. Some of the successors it designates might be ill-suited to discharge the powers of the presidency. Others concerns include its constitutionality, inappropriate incentives it might create, and the democratic legitimacy of outcomes it might produce. This report proposes several reforms to the line of succession for pre- and post-inaugural succession contingencies.
Date: August 2022
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Ensuring Continuity of Congress
Fordham Law School Rule of Law Clinic, Rachida Mecheri, Bryce Robins, and Benjamin Roth
Throughout its history, the U.S. Congress has had several brushes with catastrophe that threatened to prevent it from functioning or to change its balance of power. This report advances reforms to ensure that Congress can continue functioning if many of its members die or become incapacitated or if lawmakers' ability to meet at the Capitol is challenged. It recommends procedures for (1) rapidly replacing members of Congress in the event of mass death or incapacity; (2) declaring members of Congress incapacitated during an emergency; and (3) implementing emergency protocols.
Date: August 2022
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Changing Hands: Recommendations to Improve New York’s System of Gubernatorial Succession
Fordham Law School Rule of Law Clinic, Ian Bollag-Miller, Stevenson Jean, Maryam Sheikh, and Frank Tamberino
Despite the frequency with which the state’s highest executive offices have changed hands, New York is unprepared to deal with a panoply of issues relating to its constitution’s gubernatorial succession provisions. In this report, the Fordham Law School Rule of Law Clinic proposes reforms to address four principal issues with the existing gubernatorial succession provisions: gubernatorial inability, gubernatorial absence, lieutenant governor replacement, and the gubernatorial line of succession.
Date: June 2022
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