The recent elections here in Delaware have caused a bit of confusion concerning the office of Lt. Governor. Now if you talk to many within both the Republican, and the Democrat parties, they will tell you that it is actually a constitutional crisis. There are those within both parties that agree that this crisis requires a constitutional amendment to the Delaware constitution, you see they can agree, and both be wrong at the same time. In my opinion.
Now all of you out there longing for bipartisanship, don’t get too exited, while they agree that we need to go to the extraordinary lengths of amending the constitution to solve this issue, they do not agree on what that amendment should be.
You see, when the current Lt. Governor, Matt Denn decided to run for the open seat of the state’s Attorney General, with two years left on his current term as Lt. Governor, and he was successful, it has left that seat vacant.
Both parties seem to think, those who drafted our current state constitution, were so busy deciding what conservator of the piece meant, that they completely failed to anticipate there may come a day when the office of Lt. Governor would be left vacant for any reason other than, the succession of the Lt. Governor to the office of Governor.
Many feel that the state constitution has no line of succession for a vacancy of the Lt. Governor’s office only. I hold a different view, which I will explain later. Let me for now explain the differences of the two major party’s views of what needs to happen to fix what is not broken.
In the case of the Republicans, they would like to amend the state constitution so that the vacancy of the Lt. Governor’s office would be filled by a special election to finish out the current term. Why you ask? Well because we Republicans have a very strong history of winning special elections. They also make the argument that the office which is an elected office, should be filled by holding an election. I will address this later also.
The Democrats on the other hand would like to amend the state constitution so that the current Governor, Jack Markell (D) could simply appoint someone to fill the remainder of the current term. Why you ask? Well because how easy would that be?
Now since it would take two consecutive General Assemblies to pass identical amendments it would hardly be worth the trouble.
So the question is, should the office of Lt. Governor be allowed to sit idle until the elections of 2016? I say there is no reason for it.
One reason it should be filled under the line of succession outlined in the Delaware state constitution is, what happens if Gov. Markell were to become incapacitated, or worse? Since the Lt. Governor is the first in line to fill the vacancy of the governor, there would be a hole in the intended line of succession.
So now let me explain my views on this. The line of succession is explained in Article III, sec. 20 sub sec. a, of the Delaware constitution.
The pertinent paragraphs read as follows,
§ 20. Vacancy in offices of both Governor and Lieutenant-Governor; officers eligible to act; disability of Governor.
Section 20.
(a) In case the person elected Governor shall die or become disqualified before the commencement of his or her term of office, or shall refuse to take the same, or in case of the removal of the Governor from office, or of his or her death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Lieutenant-Governor; and in case of removal, death, resignation, or inability of both the Governor and Lieutenant-Governor, the Secretary of State, or if there be none, or in case of his or her removal, death, resignation, or inability, then the Attorney-General, or if there be none, or in case of his or her removal, death, resignation, or inability, then the President pro tempore of the Senate or if there be none, or in case of his or her removal, death, resignation, or inability, then the Speaker of the House of Representatives shall act as Governor until the disability of the Governor or Lieutenant-Governor is removed, or a Governor shall be duly elected and qualified.
The foregoing provisions of this section shall apply only to such persons as are eligible to the office of Governor under this Constitution at the time the powers and duties of the office of Governor shall devolve upon them respectively.
Whenever the powers and duties of the office of Governor shall devolve upon the Lieutenant-Governor, Secretary of State, or Attorney-General, his or her office shall become vacant; and whenever the powers and duties of the office of Governor shall devolve upon the President pro tempore of the Senate, or the Speaker of the House of Representatives, his or her seat as a member of the General Assembly shall become vacant; and any such vacancy shall be filled as directed by this Constitution; provided, however, that such vacancy shall not be created in case either of the said persons shall be acting as Governor during a temporary disability of the Governor.
So in my view, it is clear that if there is a vacancy in either the office of governor, or lt. governor, the line of succession simply picks up at the next person in line, in this case it would be the Secretary of State, who is currently, Jeffrey W. Bullock, who was appointed in 2009 by Gov. Jack Markell, and who serves at the pleasure of the Governor.
Some believe that because the first line says, “ In case the person elected Governor shall die or become disqualified before the commencement of his or her term of office, or shall refuse to take the same, or in case of the removal of the Governor from office, or of his or her death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Lieutenant-Governor; “, that this section does not address the case where the Lt. Governor leaves the office vacant for whatever reason.
However, if we continue we see this, “and in case of removal, death, resignation, or inability of both the Governor and Lieutenant-Governor, the Secretary of State, or if there be none, or in case of his or her removal, death, resignation, or inability, then the Attorney-General“, it is this part that leads some to think that the governor must first be unable to fulfill the duties of the office to put the line of succession into motion.
To believe this, we would have to believe that the framers of the state constitution were completely oblivious to the possibility of a lt. governor leaving the office vacant. I find that hard to believe. I read this entire section as the blueprint for back filling any office left vacant for any reason.
In this section, “Whenever the powers and duties of the office of Governor shall devolve upon the Lieutenant-Governor, Secretary of State, or Attorney-General, his or her office shall become vacant; and whenever the powers and duties of the office of Governor shall devolve upon the President pro tempore of the Senate, or the Speaker of the House of Representatives, his or her seat as a member of the General Assembly shall become vacant; and any such vacancy shall be filled as directed by this Constitution; provided, however, that such vacancy shall not be created in case either of the said persons shall be acting as Governor during a temporary disability of the Governor.“, it is clear that the framers are laying out the process for filling any office left vacant.
So if as in this case, the office of the Lt. Governor is left vacant, then the Secretary of State would assume the office of Lt. Governor, and then the Governor would appoint another Secretary of State as directed by the state constitution. See in the above section where it says, “and any such vacancy shall be filled as directed by this Constitution“.
Now that last part may confuse you, because if the vacancies are to be filled as directed by the state constitution, then why wouldn’t we elect the lt. Governor? Well because as is often the case, a section of a constitution is almost never a standalone article. If we go back to, Article III, sec 19,
§ 19. Lieutenant-Governor; election, term and qualifications; President of the Senate; compensation.
Section 19. A Lieutenant-Governor shall be chosen at the same time, in the same manner, for the same term, and subject to the same provisions as the Governor; he or she shall possess the same qualifications of eligibility for office as the Governor; he or she shall be President of the Senate, but shall have no vote unless the Senate be equally divided.
The Lieutenant-Governor, for his or her services as President of the Senate, shall receive the same compensation as the Speaker of the House of Representatives; the Lieutenant-Governor, for his or her services as a member of the Board of Pardons and for all other duties of the said office which may be provided by law, shall receive such compensation as shall be fixed by the General Assembly.
We now see where it is clearly stated that the office of the Lt. Governor is to be treated exactly the same as the office of the governor in regards to how they are elected, and the most telling part is this, “ and subject to the same provisions as the Governor“, the same “provisions” as the governor. This means whatever the state constitution provides for the office of the governor, it also provides for the office of the lt. governor. This in my view includes how vacancies are to be filled.
To me it is clear that the framers intended that these two offices were to be treated identically, and so there was no need following sec. 19 of Article III, to again enumerate this fact on how to fill the vacancy of the office of lt. governor.
It seems as though both of the major parties would like to ignore this, and to go to the extreme measure of amending the state constitution in a manner that they feel would benefit their individual agendas. I feel that to uphold the spirit of the document, that the vacancy opened up when Matt Denn is sworn into the office of the Attorney General, should immediately be filled by Jeffrey W. Bullock. And then Gov. Markell should appoint a new Secretary of State, and this in my view would solve that which is not really a problem.
Now as an interesting side note, even though I believe that the frames of our state constitution attempted to foresee any case that might arise, one that they may not have envisioned is the professional politician jumping from one elected office to another in hopes of positioning themselves for the next jump.
I am sure they were honorable men who sought office in order to serve their fellow citizens, not simply to pad their resumes.
That being said, they most likely did not anticipate a scenario in which a Lt. Governor would resign his office to run for the Attorney General, an office that is actually below the Lt. Governor’s office in the line of succession. In this scenario it is actually possible that after leavening the office of Lt. Governor, that through any number of turns of fate, Matt Denn could actually end up back as the Lt. Governor. There is also the question of timing. Since the office of Lt. Governor is vacant right now, Jeffrey Bullock could be asked to fill that office, if he refused, then Beau Biden who is the current Attorney General would be the next in line, and since that office has already been filled by the recent election, there would be no need to fill it. Gov. Markell would need only appoint a new Secretary of state, and possibly find another cushy job for Mr. Bullock.
Finally, there has been talk of asking the Delaware Supreme Court for an opinion on this issue. I will be highly interested in that opinion, and remember, you may have heard it here first.
Very nice. I like the way this is presented. Might make for a good debate for some of the high school mock trial competitions.
Well Frank we finally agree.
Well see Gerald, that is the whole point of the thing. Not to agree 100 percent of the time. But disagree when we must, and agree when we can.
Kudos!
It is a very interesting discussion. My view is that the succession is clear, the office remains vacant. I see no need to fill it. If the office is vacant, the Constitution is quite clear that the Secretary of State is next in line for Governor and the President Pro Tem of the Senate takes the Senate duties. I would rather see it the way that you outlined. I think that would make a good amendment.
Like you, I don’t see any crisis. If we never changed it, it would not be any different than when the Governor leaves and the Lt. Governor’s spot is vacant.
Republican Dave, not sure if you misunderstood me, or I you. I feel there is no need to do anything, no amendment at all, and the line of succession simply picks up at the Secretary of State based on Article III secs. 19 and 20.