Provisions Related to Filling a Vacancy in the Office of Lieutenant Governor

CRC Notes

2008-04 A publication of the Citizens Research Council of Michigan November 2008

PROVISIONS RELATED TO FILLING A VACANCY IN THE OFFICE OF LIEUTENANT GOVERNOR

The 1963 Michigan Constitution makes clear the line ant governor as the president of the Michigan Sen- of succession to the office of the governor when a va- ate, the presiding official of the chamber. Twenty- cancy occurs. Under Article V, Section 26, the first five other states also grant this role to their lieuten- person to fill a gubernatorial vacancy is the constitu- ant governor. The lieutenant governor’s role and tionally-established lieutenant governor. However, responsibilities as the presiding officer of the Michi- the Constitution is silent with respect to filling a void gan Senate are prescribed by the rules of the body. in the office of lieutenant governor. The lack of spe- Further, Section 25 grants the lieutenant governor the cific constitutional provisions for filling a vacancy in power to cast the deciding vote in the event of a tie the office of lieutenant governor was a change from vote in the 38 member Michigan Senate, the only time the prior 1908 Constitution. that this official may vote.

Roles of the Lieutenant Governor. The office of the Gubernatorial Succession. In Michigan, the office of lieutenant governor is created in Article V, Section 21 lieutenant governor is first in line of succession to the of the 1963 Constitution. Article V, Section 25 pro- governorship, a feature shared with 43 other states. vides that this office has both executive and legisla- (Note: Four states designate the senate presiding of- tive roles. The executive role of Michigan’s lieutenant fice as successor and three states have the secretary governor is largely ceremonial. The Constitution does of state as successor.) Vacancies in the office of gov- not invest this position with any unique executive ernor can occur as a result of impeachment, removal, branch powers as Article V, Section 1 vests all execu- resignation, or death. Following the lieutenant gover- tive power with the governor. The lieutenant gover- nor, the next in line is the elected secretary of state, nor may perform duties assigned by the governor un- the elected attorney general, and others as prescribed der Article V, Section 25; however, this section by law (Article V, Section 26).1 Section 67 of the Michi- prohibits the governor from delegating any of his/her gan Election Law (Public Act 116 of 1954) designates powers to the lieutenant governor.

In the governor’s absence from the state (e.g., atten- dance at out-of-state meetings and foreign trade mis- 1 In the debate surrounding the construction of Section 26, sions) or in a case of the governor’s inability to serve delegates to the 1961 Constitutional Convention argued the (e.g., placed under anesthesia for medical procedures), importance of including the word “elected” before “secre- the powers of the governor first devolve to the lieu- tary of state” and “attorney general” to ensure that the line tenant governor. This is not equivalent to a scenario of succession to the governorship only consists of elected where the person elected to the position of lieuten- officials, as opposed to appointed ones. Section 21 gives the ant governor ascends to the office of the governor governor the authority to appoint individuals to fill vacan- because of a vacancy in that office. In the former case, cies in the offices of secretary of state and attorney general. the lieutenant governor serves temporarily as the governor whereas in the latter the lieutenant governor CRC Board of Directors becomes the governor until the next gubernatorial EUGENE A. GARGARO, Jr., Chair MARYBETH S. HOWE JEFFREY D. BERGERON, Vice Chair DANIEL T. LIS election. NICK A. KHOURI, Treasurer ALEKSANDRA A. MIZIOLEK BETH CHAPPELL PAUL OBERMEYER RICK DIBARTOLOMEO LYNDA ROSSI The lieutenant governor does not have any express TERENCE M. DONNELLY JERRY E. RUSH executive powers; however, the Michigan Constitu- RANDALL W. EBERTS MICHAEL A. SEMANCO DAVID O. EGNER TERENCE A. THOMAS, Sr. tion expressly provides this position with legislative W. FRANK FOUNTAIN AMANDA VAN DUSEN powers. Article V, Section 25 designates the lieuten- INGRID A. GREGG EARL M. RYAN, President

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CRCMICH.ORG CRC Notes the president pro tempore of the Mr. Faxon: Mr. Chairman, Mr. issues that merit exploration. Senate and the speaker of the King, if I may ask you a ques- Some issues are practical, dealing House of Representatives, in that tion; if the lieutenant governor with established governmental order, to follow the attorney gen- is the governor, then who is the procedures, while others are eral in the line of gubernatorial lieutenant governor? purely political. succession. Mr. King: Mr. Chairman, Mr. With respect to the practical con- The last time that a sitting Michi- Faxon, the lieutenant governor cerns, a vacancy in the office of gan governor vacated the office becomes the governor in the lieutenant governor would create was in 1969, when Governor event of the absence, disabil- a vacancy on the State Administra- George Romney resigned to be- ity, impeachment, or death of tive Board, a body which also con- come the Secretary of the U.S. the governor, and there is no sists of the governor, secretary of Department of Housing and Urban replacement for him.2 state, attorney general, treasurer, Development. William Milliken superintendent of public instruc- had been reelected lieutenant Lacking constitutional authority to tion, and transportation director. governor in 1966 with Governor fill vacancies in the office of lieu- This Board, created in state law in Romney and succeeded him as tenant governor, the office must 1921, has general supervisory con- governor on January 22, 1969. As remain unfilled until the next gu- trol over the administrative activi- a result, a vacancy in the office of bernatorial election. The void of ties of all state departments and lieutenant governor was created constitutional authority, however, agencies through contract and effective immediately upon does not apply to the role played lease approvals and claim settle- Milliken’s ascension to the gover- by the lieutenant governor as ments. Without the lieutenant norship and remained vacant un- president of the Michigan Senate. governor on the Board, the body til the next gubernatorial election In 1995, Michigan Attorney Gen- would consist of six members and in 1970. eral Frank Kelley opined that the tie votes could occur. A method Michigan Senate has the authority for breaking a tie would have to be Vacancies in the Office. Whereas to select its presiding officer in the developed. the Michigan Constitution pro- event of a vacancy in the office of vides a method for filling vacancies lieutenant governor.3 The role of Similarly, a void in the office of the in the other statewide elected ex- the person filling such a position president of the Senate would re- ecutive offices (e.g., governor, sec- would be limited to the duties of move the tie-breaking mechanism retary of state, and attorney gen- the presiding officer of the Michi- for votes. Senate rules do not con- eral), it is silent with respect to a gan Senate and would not com- template or provide for an alter- vacancy in the office of lieutenant prise other roles of the lieutenant native method for breaking an governor. Article V, Section 21 pro- governor, including breaking a tie equally divided vote, as the Michi- vides that vacancies in the offices vote. Senate rules contain an or- gan Constitution invests this au- of secretary of state and attorney dering of presiding officers in the thority solely with the lieutenant general are to be filled by guber- absence of the president of the governor. This is different from the natorial appointment, suggesting senate. voting procedure in the House of that the framers of the 1963 Con- Representatives, which consists of stitution intended vacancies in the Issues When a Vacancy Occurs. 110 members. In that body, an af- office of lieutenant governor to go A vacancy in the office of lieuten- firmative vote of a simple major- unfilled. This is confirmed by re- ant governor raises a number of ity (56 members) is required to viewing the official record of the pass a bill. Unlike the process in 1961 Constitutional Convention, the Michigan Senate, a tie vote in which contains an exchange be- 2 Official Record, 1961 the House does not go to a decid- th tween two delegates directly re- Constitutional Convention, Vol. II, p. ing 111 vote. An equally divided lated to this issue. 19 69. vote in the House constitutes a failed vote. 3 OAG 6849, 1995.

2 CRC Notes

One political consideration that provision (Article VI, Section 10) to process in the Michigan House of arises when a lieutenant governor require the governor to appoint, Representatives does not provide ascends to the governorship re- with the consent of the Michigan a tie-breaking vote, which has not lates to the line of succession and Senate, a person to fill a vacancy rendered the legislative process in the political party affiliation of the in the office of the lieutenant gov- that chamber inoperable. individuals in that line. Without a ernor whenever one occurs. This lieutenant governor in place, the provision was not included in the Establishing a procedure for gu- secretary of state would assume 1963 Constitution. Today, the bernatorial appointment of a lieu- the gubernatorial powers and du- question arises as to whether tenant governor could result in a ties in the event that the governor Michigan should have a constitu- person serving as governor that leaves the state or is unable to per- tional process for filling a vacancy was not directly elected by Michi- form the duties of the office. The in the office of lieutenant gover- gan citizens. The 1908 Constitu- current lieutenant governor is from nor. The answer to this question tion allowed for such an occur- a different political party than the lies in examining the roles and du- rence. Under Article VI, Section 10 next three individuals in line for ties of this position as currently it was possible that an “appointed” succession of the governor. constituted. lieutenant governor could serve as the governor, either temporarily as In some states, the governor and With respect to the position’s role a result of the elected governor’s the lieutenant governor represent as an elected executive official, an absence from the state or perma- different political parties. In Michi- unfilled vacancy poses few prob- nently as a result of the elected gan, the governor and the lieuten- lems as the position has no ex- governor’s death, resignation, im- ant governor are elected on the press powers or duties. The most peachment, or removal. This is same ticket by a joint vote, a fea- important role of the lieutenant part of the rationale behind the ture the state shares with 25 of the governor is as the first in line as the current constitutional ordering of other 43 states that have a lieuten- “governor in waiting”. gubernatorial succession, i.e., ant governor. In the other 18 elected secretary of state and states, the governor and lieuten- The lieutenant governor does elected attorney general. ant governor appear on separate have express legislative powers tickets, and thus may come from that cannot be carried out by an- It does not appear that the function- different political parties. The other individual in the event of a ing of Michigan state government, joint election of the governor and vacancy. Specifically, a vacancy in either in the executive or legislative lieutenant governor was a new the office of lieutenant governor branch, would be adversely affected feature of the 1963 Constitution means that tie votes will go unde- in any significant way by a vacancy and was intended to ensure that cided. Is this a problem for the leg- in the office of lieutenant governor. the same political party would re- islative process in the Senate? The There may be political concerns main in control of the executive legislative process is one of give when a lieutenant governor ascends branch should a vacancy occur in and take that rarely results in a tie to the office of governor and the the governorship, at least until the vote. It can be argued that the pro- next in line of gubernatorial succes- next gubernatorial election. cesses of consensus and compro- sion is an elected secretary of state mise that underlie legislative de- from a different political party. Does Michigan Need a Procedure cision making will have to adapt to However, it is unlikely that these to Fill a Vacancy in the Office of the reality that a tie vote will re- concerns would have significant ef- Lieutenant Governor? The 1908 sult in a failed vote and adjust ac- fects on the every day activities of Michigan Constitution contained a cordingly. The decision making state government.