In a few days, a lawsuit will be filed in federal court in New York state to force the state to hold a special election to fill the vacant U.S. House seat, 29th district. Congressman Eric Massa resigned in March. New York Governor David Paterson first said he would call a special election to fill the vacancy, but now he seems to believe that he won’t, citing the cost to taxpayers.
The Evening Tribune newspaper of Hornell, New York, has this interesting article, suggesting that the leading precedent on whether Governors must call special elections to fill U.S. House vacancies is favorable to the plaintiffs. That precedent is American Civil Liberties Union v Taft, 385 F 3d 641 (2004). In that case, the 6th circuit ruled that the U.S. Constitution requires special elections to fill such vacancies in the House, unless the vacancy occurred very close to the end of the term. In the Ohio precedent, the vacancy had not occurred until July 24, 2002. So the case against New York state is even stronger than the Ohio case had been.
A Sixth Circuit opinion is not binding in New York, but the precedent will be influential. The Sixth Circuit includes Ohio, Kentucky, Tennessee and Michigan.
Congress can set the time of elections to fill vacancies, and has in fact set the time in certain circumstances (more than 100 simultaneous vacancies), but has not done so in cases of single vacancies.
The legislature in New York could set the time of elections to fill vacancies, but has delegated that authority to the governor.
The problem is that in New York special elections, party committees just pick a candidate, eliminating the ability of voters to participate in a primary. Also, independent candidates must collect the same number of signatures, but in only 12 days instead of the usual 42.
In a swing district with heavy activist participation from all philosophical camps, primaries are hugely important. The 29th Congressional district is just such a district. Eric Massa narrowly lost to Randy Kuhl in 2006 and narrowly won the same seat in 2008.
Holding special elections in New York always favors the party bosses over the grassroots. While I appreciate the sentiment regarding representation, from the ground level view holding a special election in this place and time is a bad idea.
New York law’s narrow window for petitioning for independent candidates is almost certainly unconstitutional. The 4th circuit, the 10th circuit, and the 11th circuit have all ruled that when the petitioning period is very short, states must either reduce the number of signatures needed for an independent, or else simply give the independent more time. The case in the 4th circuit, Mathers v Morris, was appealed to the U.S. Supreme Court by the state of Maryland, but the U.S. Supreme Court refused to hear the state’s appeal.
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Sorry – NO time specified in Art. I, Sec. 2 on how soon special elections for for U.S.A. Reps. must be held.
Const Amdt –
Each legislative body candidate/incumbent has a rank order list to fill any vacancy.
=== NO more high cost / low turnout special elections for legislators.