BILL NUMBER:S2731

TITLE OF BILL:  An act to amend the public officers law, in relation to
extending the deadline for calling special elections to fill vacancies
in the offices of state senator and member of assembly

PURPOSE OR GENERAL IDEA OF BILL:  That no community be without political
representation.

SUMMARY OF SPECIFIC PROVISIONS:  Public Officers Law would be amended to
extend the regular cutoff for calling special elections to fill vacan-
cies in the offices of state senators and members of assembly to June 1.
It also would provide for elections to fill vacancies in those offices
and in the office of representative in congress at general elections.

JUSTIFICATION:  At present, if a vacancy in the office of state senator
or in the office of member of assembly occurs on or after April 1 of the
last year of the term of office, it cannot be filled by special election
unless a special session is called for later on. This provision dates
from 1896, when the legislature adjourned or recessed before April 1 of
each year-the end of the fiscal Year. Longer legislature sessions are
more common today and the effect of this provision of law is to deny
representation to senate and assembly districts where vacancies occur on
or after said April 1. Hence, the cutoff for a vacancy to occur which
would enable a special election to be called should be shifted to June
1.  Moreover, if a vacancy were to occur after June 1 of the last year
              

of the term and no special session is held, the residents of the
affected district should at least be able to elect someone at the
impending general election to fill the vacancy fox the remainder of the
term and not be further deprived of representation. The reason for this
is because the legislature at times sits after the general election to
consider matters not dealt with prior to having adjourned earlier in the
year. Also, the residents of the affected district are deprived of the
provision of constituent services normally provided by a state legisla-
tor. In such event what would occur is that the general election ballot
would include both an election for the term of office to commence Janu-
ary 1 of the next year and an election to fill the vacant term.
(Election Law section 7-108(2) already provides that the ballots denote
the separate terms of office where the same office is to be voted for).
Subdivision 4 of section 42 of the Public Officers Law was the subject
of litigation in 2009 as a result of there having been a vacancy created
in April due to the removal from office of the incumbent member of
assembly. In Matter of Barron v. Board of Elections in the City of New
York, 11 N.Y.3d 745, the Court of Appeals held that subdivision 4 of
section 42 carved out an exception to subdivision 1's provision requir-
ing an election to fill a vacancy to be held at the general.election.
The court then held that since the word" office" was used in the last
sentence of subdivision 4, it was not intended that an election be held
to fill a vacancy at the general election. By changing" office" to
"vacancy," this decision would be legislatively overruled.  Further, the
court's decision can be construed as prohibiting an election to fill a

legislative vacancy even in the first year of the term of office, if no
special election is called. Such a construction derives from the court's
clear statement that subdivision 1 does not apply to the office of
member of assembly. If that is so, then it does not apply to state
senator and representative in congress either. Since subdivision 4 does
not permit a vacancy to be filled at general election, according to the
court, then no election to fill the vacancy can be held at the general
election, even in the first year of the term. This is contrary to pres-
ent practice which is to fill vacancies in representative in congress,
state senator, and member of assembly occurring in the first year of the
term at the general election held in that year. This proposed amendment
would clarify that an election to fill a vacancy shall be held at the
next general election, and it would take place whether the vacancy
occurred in the first year or the second year of the term.

PRIOR LEGISLATIVE HISTORY:  A.7372/S.3686 (2010) Held in Investigations
& Government Operations S.3688 03/02/11 Referred to Investigations and
Government Operations S.3688 01/04/12 Referred to Investigations and
Government Operations

FISCAL IMPLICATIONS:  Minimal, as boards of election would be required
to add but one more row on ballots whenever an election to fill a vacan-
cy must be conducted at the general election.

EFFECTIVE DATE:  This act shall take effect immediately.